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Article 13

Article 13 in The Constitution Of India 1949

Laws inconsistent with or in derogation of the


fundamental rights
(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 law
includes any Ordinance, order, bye law, rule, regulation,
notification, custom or usages having in the territory of
India the force of law; laws in force includes laws passed
or made by 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Constitution and not previously repealed, notwithstanding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.
The term law in article 13 has been given a
wide interpretation so as to include ordinance.
Order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India
the force of law(13(3)(a)).
This means that not only a piece of legislation,
but any of the forms mention here can be
challenged as infringing the fundamental rights.
Though a law as such may not be invalid, yet an
order made under it can still be challenged as being
inconsistent with a fundamental right because no law
can be presumed to authorise anything
unconstitutional. ( Narendra Kumar v. UOI, AIR
1960 SC430)
In Shankari Prasad Singh v. UOI,a question of great
importance has been debated. Whether the term law
in Article 13 includes an act passed by the parliament
to amend the constitution .
In this first case on amendability of the
constitution, the validity of the constitution
first amendment act,1951, curtailing the right
to property was challenged. The argument
against the validity of the first amendment was
that Art.13 prohibits enactment of any law
infringing the fundamental right. And the word
law in Art 13 would include any law even a
law amending the constitution.
Here there was a conflict between two articles, that is
Art.13 and 368. adopting the literal interpretation of the
Art 13 the court in this case upheld the validity of the first
amendment. The court rejected the contention and limited
the scope of Art 13 by ruling that the word Law in article
13 would not include a constitutional amending law.
Passed under Art.368. the court held that this very article
empowers the Parliament to amend the constitution with
out any exception. The fundamental rights are not
excluded or immunized from the process of constitutional
amendment under Art 368.
Sajjan Singh v. Rajasthan, AIR 1965 SC 845

For the next 13 years following the Shankari Prasad,


the question of amendability of the fundamental
rights remained dormant.
The same question was raised again in 1964 in Sajjan
Singh v. State of Rajasthan, when the validity of the
constitution 17th amendment was challenged. This
too was a matter concerning the right to property. By
this amendment, a number of statutes affecting
property rights were placed in the Ninth Schedule
and were thus immunized from court review.
The court in this case also hold the same approach
which was taken in Shankari Prasad case. The
conclusion as regard to the relation between Arts. 12 ND
368 was reiterated by the majority. The court again drew
a distinction between ordinary law and constitutional
law made in exercise of the constitutional powers.
But the minority judges said that, the constitution
guarantees so much things in Part III that it would be
difficult to think that they are play-things of a special
majority.
Perhaps encouraged by the above remarks of the two
judges in the minority side, the question was again raised
in Golak Nath in 1967. again the constitutional validity of
the 17th amendment was challenged. Eleven judges
participated in that decision and they divided into 6 to 5.
The majority now held, overruling the earlier cases of
Shankari Prasad and Sajjan Singh, thet the fundamental
rights are non-amendable through the constitutional
amending procedure set out in Art 368., while the minority
upheld the line of reasoning adopted by the court in two
earlier cases.
The majority was worried at the numerous
amendments of the fundamental rights which
had taken place since 1950. it apprehended
that if the courts were to hold that the
parliament had power to take away or abridge
the fundamental rights, a time might come
when these rights are completely eroded and
India would gradually pass under a totalitarian
regime.
In Golak Nath vs. The State of Punjab, a bench of eleven judges
(such a large bench constituted for the first time) of the Supreme
Court deliberated as to whether any part of the Fundamental
Rights provisions of the constitution could be revoked or limited
by amendment of the constitution.
Chief Justice Subba Rao writing for the majority (six judges in
special bench of eleven, overruled the previous decisions) held
that:
A law to amend the constitution is a law for the purposes of
Article 13.
Article 13 prevents the passing of laws which "take away or
abridge" the Fundamental Rights provisions.
Article 368 does not contain a power to amend
the constitution but only a procedure
The power to amend comes from the normal
legislative power of Parliament.
Therefore, amendments which "take away or
abridge" the Fundamental Rights provisions
cannot be passed.
TO neutralize the effect of Golaknaths case, Constitution
(Twenty - Fourth Amendment) Act, 1971 was passed which
made significant changes in Article 368.
Firstly it sought to nullify the effect of Golak Nath by adding
clause (4) to Article 13 which provides that nothing in Article
13 shall apply to any amendment of the Constitution made
under Article 368. It means that the meaning of the word law
in terms of Article 13 will not extend to an amendment made
under Article 368. This position is reassured by adding clause
(3) to Article 368 which provides that nothing in Article 13
shall apply to an amendment made under this Article.
Secondly this amendment made a change in
the marginal note
to Article 368 by substituting Power of
Parliament to amend the Constitution and
Procedure therefor for Procedure for
amendment of the Constitution.
Six years later in 1973, thirteen judges of the Supreme Court,
including then Chief Justice Sikri, heard arguments in
Kesavananda Bharati v. The State of Kerala and thus
considered the validity of the 24th, 25th and 29th amendments,
and more basically the correctness of the decision in the Golak
Nath case.
This time, the court held, by the thinnest of margins of 7-6, that
although no part of the constitution, including fundamental
rights, was beyond the amending power of Parliament (thus
overruling the 1967 case), the "basic structure of the
Constitution could not be abrogated even by a constitutional
amendment".
The findings included the following:
All of the Judges held that the 24th, 25th and 29th Amendments
Acts are valid.
Ten judges held that Golak Nath's case was wrongly decided and
that an amendment to the Constitution was not a "law" for the
purposes of Article 13.
Seven judges held that the power of amendment is plenary and can
be used to amend all the articles of the constitution (including the
Fundamental Rights).
Seven judges held (six judges dissenting on this point) that "the
power to amend does not include the power to alter the basic
structure of the Constitution so as to change its identity".
Seven judges held (two judges dissenting, one leaving
this point open) that "there are no inherent or implied
limitations on the power of amendment under Article
368".
However nine judges (including two dissentients)
signed a summary stating that "the view of the
majority" in the case was
1. Golak Nath's case is overruled.
2. Article 368 does not enable Parliament to alter the
basic structure or framework of the Constitution.
The Supreme Court declared that Article 368 did
not enable Parliament to alter the basic structure or
framework of the Constitution and parliament could
not use its amending powers under Article 368 to
damage, emasculate, destroy, abrogate,
change or alter the basic structure or framework
of the constitution. This decision is not just a
landmark in the evolution of constitutional law, but
a turning point in constitutional history.
Doctrine of severability
one thing to noted in article 13 is that, it is not the entire law
which is affected by the provisions in part 3, but on the other
hand, the law become invalid only to the extent to which it is
inconsistent with the fundamental rights.
So only that part of the law will be declared invalid which is
inconsistent, and the rest of the law will stand. However, on this
point a clarification has been made by the courts that invalid
part of the law shall be severed and declared invalid if really it
is severable, i.e if after separating the invalid part the valid part
is capable of giving effect to the legislatures intent, then only it
will survive, otherwise the court shall declare the entire law as
invalid. This is known as doctrine of severability.
The supreme court has laid down following propositions as
regards the doctrine of severability, in RMDC v UOI(AIR 1957
SC 628)
The intention of the legislature is the determining factor whether
the valid parts of the Act are separable from the invalid part.
The valid and invalid parts are so inextricably mixed up that they
cannot be separated from one another.
Even if they are separable, but if they all form part of a single
scheme which is intended to operate as a whole.
If one portion is strike down, that will affect the entire
legislation, Its application and enforceability.s
Doctrine of eclipse
The prospective right of art 13(1) has given rise to the doctrine
of eclipse.
The doctrine was evolved in Bhikaji v. State of Madhya
Pradesh(AIR 1955 2 SCR 589).
It means that a pre-constitutional law inconsistent with
fundamental right was not wiped out altogether from the statute
book after the commencement of the constitution. It will be
regarded as having been eclipsed for the time being by the
relevant fundamental right. It will be in a dormant or in hidden
condition. Such a law was not dead. If the relevant fundamental
right is amended, then the effect will remove the shadow and
make the impugned Act free from all blemish or infirmity.
Then the law will become enforceable.
The doctrine will be applicable only to the pre-
constitutional laws but not to post- constitutional
laws. The reason is that while the pre laws was valid
when it was enacted, and not void ab initio, but
became void only because the constitution came into
force.
On the other hand post- constitutional laws are void
ab initio, if it violates part III, and hence cannot be
revived.
If the pre laws violates the fundamental rights
of the citizen only, then it will be applicable to
non citizens.