An aristocratic missionary and a question of property: When SC put checks on Parliament's power to tinker with Constitution

In 1815, the Chatterjee family in Calcutta's Shibpur celebrated the birth of a male heir and marked the moment by donating 100 cows. They also named the boy Golaknath, meaning 'the owner of millions of cows'. Educated in a missionary school, Golaknath converted to Christianity at age 14. Shunned by his family, he is said to have walked thousands of kilometres, first to Benaras, then Allahabad and finally to Punjab.
In Jalandhar, the aristocratic Brahmin joined the Scottish American Presbyterian Mission, becoming the first Indian to be ordained a minister. Over a century later, Golaknath Chatterjee's descendants would lend their name to what's perhaps one of the most consequential constitutional cases — IC Golaknath v State of Punjab.
In 1962, land owned by the evangelical family ran into trouble with the Punjab government, which ordered that the family's land was 'surplus' under its land ceiling laws. While the right to property was then a fundamental right — it stayed that way until the 44th constitutional Amendment in 1978 — the government had through a series of reforms and Amendments diluted the right over the years.
In 1964, through the 17th Amendment, the Parliament had added the Punjab Security of Land Tenures Act, 1953, to the Ninth Schedule, putting it beyond judicial purview. In 1967, the Supreme Court, while deciding on the family's petition challenging the Punjab land ceiling law and the 17th Amendment reopened the question on whether the Parliament could amend fundamental rights.
The ruling, for the first time limited Parliament's power to amend the Constitution. While doing so, the court would reverse a view it had consistently held for 17 years until then — that Parliament had the power to tinker with fundamental rights.
'Golaknath was a moment where the judiciary asserted itself against a government that amassed more and more power to change the Constitution. The SC's responsibility to ensure that Parliament's majority does not become majoritarian is as relevant today as it was in 1967,' Dr Faizan Mustafa, Vice-Chancellor of Chanakya National Law University, Patna, says.
In 1891, when Golaknath Chatterjee died, his son Henry Golaknath took over as Reverend of the church his father had founded in Jalandhar.
Henry, one of Golaknath's 14 children, had in 1882 graduated from the Princeton Theological Seminary. Along with his brother William Golaknath, he bought and developed nearly 500 acres around the mission in Bhogpur, approximately 25 km from Jalandhar. While 101-year-old Henry died in 1962, his son Inder and daughter Indira were to inherit the land. However, the District Collector, under the land ceiling law, allowed Inder, Indira and Inder's four daughters a few acres each, declaring around 418 acres as 'surplus' that would vest with the state or the tenants.
As the case landed in the Supreme Court, a host of leading lawyers — Nani Palkhivala, M K Nambyar, Ashoke Kumar Sen and Fali Nariman — made the case for Inder C Golaknath, the petitioner. In their arguments, they highlighted the perils of having no restrictions on the Parliament's powers to amend the Constitution.
On February 27, 1967, an 11-judge Bench of the SC, headed by then Chief Justice of India Koka Subba Rao, reopened the issue of constitutional amendments diluting the right to property. The Constitution (Seventeenth Amendment) Act, 1964, had, among other aspects, added the Punjab Security of Land Tenures Act, 1953, to the Ninth Schedule, putting it beyond judicial purview. The amendment again raised the same larger question, which was discussed in earlier parts of The Indian Express's series — whether a constitutional amendment can truncate fundamental rights.
In Sankari Prasad v State of Bihar (1951) and Sajjan Singh v State of Rajasthan (1964), the Court had ruled that Parliament had no fetters on its power to amend the Constitution. While it was the right to property that Parliament consistently tinkered with, as the ruling termed it, an 'argument of fear' had begun to take shape — that if Parliament can take away one right, it could take away any right.
'It is said that if Article 368 (dealing with amendment process) is held to confer full (power) to amend each and every part of the Constitution as has been held in Sankari Prasad's case, Parliament may do all kinds of things, which were never intended, under this unfettered power and may, for example, abolish elected legislatures, abolish the President or change the present form of Government into a Presidential type like the United States Constitution or do away with the federal structure altogether,' then CJI Rao articulated.
In a 6:5 verdict, the SC, in one stroke, overruled its two earlier rulings and held that Parliament did not have the power to abridge or take away fundamental rights. While CJI Rao and five others formed the majority, Justice K N Wanchoo wrote a minority opinion.
'The power of amendment contained in a written federal constitution is a safety valve which, to a large extent provides for stable growth and makes violent revolution more or less unnecessary,' Justice Wanchoo wrote.
It was in the Golaknath case that the 'basic structure' argument was first made by veteran lawyer M K Nambyar, who was inspired by German Professor Dietrich Conrad. Court records show that during the arguments in court, the lawyers referred to how the government was using the legislature as a means of securing changes in the laws which it desires. There were also references to Hitler's Germany.
The ruling was perhaps also a reflection of its times. The Republic had moved from a new nation that had emerged from the shadow of colonialism to one that was beginning to confront its internal issues. For the first 17 years, the SC had allowed the Parliament to change the Constitution, but many of those parliamentarians were part of the independence movement. In fact, the first constitutional Amendment was made by the provisional Parliament, which was essentially the Constituent Assembly. As the generation changed, the relationship between the executive and the judiciary too began to change.
The Golaknath ruling came around the same time when the Indira Gandhi-led Congress government had come back to power at the Centre, but lost power in several states. The political implications of the ruling had far-reaching consequences for the judiciary. It did not help that Justice Rao resigned as CJI, three months before his term ended and contested for the Presidential elections as the Opposition's candidate. He, however, lost the election to former President Giani Zail Singh.
The government, however, saw the court's Golaknath ruling — and subsequent adverse rulings, including the bank nationalisation case (1970) — as open confrontation. The government hit back by superseding judges seen as inimical to its socialist policies.
Despite the win, the Golaknaths did not get back their land. 'We didn't even get what was permissible under the law, where each family member could have a standard 30 acres. We received less than one-third of it. Whatever land we did get, we were pressured by villagers to sell it at a ridiculously low price,' Vimal, one of Inder Golaknath's four daughters, tells The Indian Express.
The family still retains the 150-year-old 'The Retreat Golaknath House' spanning three acres in the corner of Football Chowk, located in the heart of Jalandhar city. The Golaknath Church, located on the mission compound, is run by Golaknath's sixth-generation descendants.
Among Golaknath's many descendants are several illustrious personalities. Dora Chatterjee, the daughter of Golaknath's third child Mary, and Kali Charan Chatterjee, a leading Bengali Christian missionary who was one of India's first woman doctors. Then there was Rajkumari Amrit Kaur, daughter of Priscilla, Golaknath's fourth child, who became a minister in the first Cabinet.
Six years after the Golaknath verdict, the Supreme Court would revisit it. This time, in the landmark Kesavananda Bharati ruling (1973), a 13-judge Bench, in a narrow 6:7 ruling, came up with the magic formula — the basic structure test. The SC would say that the Golaknath ruling was valid to the extent that Parliament cannot tinker with fundamental rights, which form part of the basic structure of the Constitution, but the right to property itself, which was essential to Golaknath's descendants, did not form part of that basic structure.
Apurva Vishwanath is the National Legal Editor of The Indian Express in New Delhi. She graduated with a B.A., LL. B (Hons) from Dr Ram Manohar Lohiya National Law University, Lucknow. She joined the newspaper in 2019 and in her current role, oversees the newspapers coverage of legal issues. She also closely tracks judicial appointments. Prior to her role at the Indian Express, she has worked with ThePrint and Mint. ... Read More

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