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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas (4) Nothing in this article shall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.
Princess Cruises, Incorporated v. General Electric Company, & Third Party v. Norfolk Shipbuilding & Drydock Corporation, Third Party, 143 F.3d 828, 3rd Cir. (1998)
Affholder, Inc., (86-5348), (86-5349) v. Preston Carroll Company, Inc., and Cfw Construction Company, Inc., Defendants- (86-5348). Preston Carroll Company, Inc., and Cfw Construction Company, Inc., Third-Party (86-5349) v. The Louisville and Jefferson County Metropolitan Sewer District of Jefferson County, Kentucky, H.C. Nutting Company, Hubbard E. Ruddy Consulting Engineers, Inc. And Presnell Associates, Inc., James-Winstead & Associates, Inc., D.M.J.M., Inc. (Successor in Name to Vollmer Associates, Inc.), and E. Lionel Pavlo, Consulting Engineer, D/B/A Vollmer-Presnell-Pavlo, a Joint Venture, Third-Party, 866 F.2d 881, 3rd Cir. (1989)
Bad Frog Brewery, Inc. v. New York State Liquor Authority, Anthony J. Casale, Lawrence J. Gedda, Edward F. Kelly, Individually and as Members of the New York State Liquor Authority, 134 F.3d 87, 2d Cir. (1998)