Article 13 of the Indian Constitution is a cornerstone of the Fundamental Rights chapter (Part III). It serves as a crucial safeguard, ensuring that legislative and executive actions do not infringe upon the rights guaranteed to the citizens and persons of India. This article effectively provides teeth to the Fundamental Rights, making them enforceable and paramount.
By declaring that laws inconsistent with or in derogation of Fundamental Rights are void, Article 13 establishes the principle of judicial review. It empowers the judiciary to examine the validity of laws and actions of the state and strike them down if they violate any of the fundamental rights enshrined in Part III.
Original Text
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.
Detailed Explanation
Article 13 operates as a protective shield for the Fundamental Rights. It lays down rules regarding the validity of laws in relation to Part III.
- Clause (1): Deals with “laws in force” or pre-constitutional laws. It states that existing laws in force immediately before the commencement of the Constitution which are inconsistent with the provisions of Part III shall be void to the extent of such inconsistency. This means such laws are not automatically wiped out but become inoperative from the date the Constitution comes into force, only to the extent they clash with Fundamental Rights. This introduces the concept of the ‘Doctrine of Eclipse’ for pre-constitutional laws.
- Clause (2): Deals with post-constitutional laws. It prohibits the State from making any law which takes away or abridges the rights conferred by Part III. Any law made in contravention of this clause shall be void to the extent of the contravention. This empowers the judiciary to declare post-constitutional laws unconstitutional if they violate Fundamental Rights. This clause forms the basis for the ‘Doctrine of Severability’.
- Clause (3): Defines key terms used in the article:
- “Law”: Provides a broad definition of “law”, including not just legislation passed by Parliament or State Legislatures, but also ordinances, orders, bye-laws, rules, regulations, notifications, customs, and usages having the force of law. This broad definition ensures that all forms of state action that have the force of law are subject to judicial review regarding Fundamental Rights.
- “Laws in force”: Refers to existing laws passed before the Constitution came into effect, which had not been repealed.
- Clause (4): Added by the 24th Constitutional Amendment Act, 1971. It states that nothing in Article 13 shall apply to any amendment of the Constitution made under Article 368. This clause was introduced to counteract the Supreme Court’s ruling in the Golaknath case (1967), which held that a constitutional amendment under Article 368 is also a ’law’ within the meaning of Article 13(2) and therefore subject to the Fundamental Rights. However, the validity of Clause (4) itself was challenged and examined in the Kesavananda Bharati case (1973), where the Supreme Court, while upholding the 24th Amendment, propounded the ‘Doctrine of Basic Structure’, holding that constitutional amendments cannot alter the basic structure of the Constitution, which includes Fundamental Rights (subject to certain limitations). Later, in the Minerva Mills case (1980), the Supreme Court struck down Clause (4) of Article 368 (added by the 42nd Amendment) which gave unlimited power of amendment, reinforcing the idea that judicial review under Article 13 is part of the basic structure and even constitutional amendments are subject to it.
Detailed Notes
- Article 13 is part of Part III (Fundamental Rights) of the Indian Constitution.
- It serves as a safeguard for Fundamental Rights.
- It declares laws inconsistent with or in derogation of Fundamental Rights as void.
- It implicitly provides for the principle of judicial review.
- Clause 13(1): Applies to pre-constitutional laws (“laws in force”).
- Pre-constitutional laws inconsistent with FRs are void to the extent of inconsistency.
- This clause gives rise to the ‘Doctrine of Eclipse’.
- A pre-constitutional law inconsistent with FR is not dead but remains inoperative.
- If the FR is amended such that the inconsistency is removed, the law becomes operative again (eclipse is lifted).
- Clause 13(2): Applies to post-constitutional laws.
- Prohibits the State from making laws that take away or abridge FRs.
- Any such law is void to the extent of the contravention.
- This clause gives rise to the ‘Doctrine of Severability’.
- If only a part of the law is inconsistent with FR, only that part is severed and declared void, not the entire law, provided the valid part is separable from the invalid part.
- Clause 13(3)(a): Defines “law” broadly.
- Includes Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having the force of law.
- Ensures that all forms of state action with legal force are subject to FR scrutiny.
- Clause 13(3)(b): Defines “laws in force” (pre-constitutional laws).
- Includes laws passed before the Constitution’s commencement and not repealed.
- Clause 13(4): Added by the 24th Amendment Act, 1971.
- States that nothing in Article 13 applies to constitutional amendments under Article 368.
- Added to overcome the Golaknath judgment (1967) which held amendments are ’law’ under Article 13(2).
- The validity of this clause was examined in Kesavananda Bharati case (1973).
- Supreme Court upheld the 24th Amendment but introduced the ‘Doctrine of Basic Structure’.
- Held that constitutional amendments cannot alter the basic structure of the Constitution.
- Judicial Review under Article 13 is considered part of the basic structure (affirmed in Minerva Mills case, 1980).
- Therefore, even constitutional amendments, though not ’law’ under 13(2) as per 13(4), are subject to judicial review if they violate the basic structure.
- Fundamental Rights, while subject to reasonable restrictions and amendment, are crucial elements protected by Article 13 and the Basic Structure doctrine.
Additional Comments
- Article 13 is foundational for judicial review in India regarding Fundamental Rights.
- The interplay between Article 13 and Article 368 (Power of Parliament to amend the Constitution) has been a subject of major constitutional debate and landmark judgments.
- The evolution through cases like Shankari Prasad, Sajjan Singh, Golaknath, Kesavananda Bharati, and Minerva Mills clarifies the scope of ’law’ and the limits of amending power concerning Fundamental Rights.
- The Doctrine of Eclipse was clearly articulated in the case of Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955).
- The Doctrine of Severability was explained in cases like A.K. Gopalan v. State of Madras (1950).
- Article 13 does not make Fundamental Rights absolute; they are subject to reasonable restrictions as provided in the Constitution itself.
Summary
Article 13 of the Indian Constitution safeguards Fundamental Rights by rendering laws inconsistent with or in derogation of these rights void. It applies to both pre-constitutional laws (via the Doctrine of Eclipse) and post-constitutional laws (via the Doctrine of Severability). The definition of “law” under this article is broad, encompassing various forms of state action. While Clause (4) was added to exclude constitutional amendments from the purview of Article 13, the Supreme Court’s interpretation through the Basic Structure Doctrine ensures that amendments infringing upon the core tenets of the Constitution, including Fundamental Rights, are subject to judicial review and potential invalidation. This article is the basis for judicial review concerning the violation of Fundamental Rights.