Indian Constitution is the lengthiest constitution in the world, comprising various provisions ensuring delineation of powers and responsibilities among various instrumentalities of the State and safeguarding the rights and interest of people.
The constitution of our country is divided into 25 parts and all of them are equally important. But Part III, IV and IV-A, dealing with Fundamental Rights, Directive Principles of State Policy and Fundamental Duties respectively together constitute the goals of justice, liberty and equality.
Part III of the constitution deals with the Fundamental Rights. The fundamental rights are those rights of people which are so fundamental in nature that it cannot be undermined or curtailed at any cost except under exceptional circumstances. The fundamental rights under Part III is given from Article 12 to Article 35 of the constitution. All those article deals either with the organs of government, authorities and the instrumentalities against whom such rights can be enforced, the rights themselves or their enforceability.
The present article discusses in detail Article 13 of the Indian Constitution.
Article 13 expressly lays down the supremacy of the Fundamental Rights over any other law if there is any inconsistency between the two. It prevents the legislature from making any law in contravention of Part III of the Constitution i.e, the Fundamental Rights.
Article 13 also gives power to declare any pre-constitutional law which is inconsistent with the Fundamental Rights as void to the extent of its inconsistency. It thus helps review the pre constitutional law as well as the existing laws, thereby paving the way for judicial review.
Thus, article 13 basically declares that any law that has been in force must be consistent with the fundamental rights of the people and any law would be made must in consonance with the fundamental rights. If in case a law that has been there in force within the territory of India before the commencement of the Constitution becomes inconsistent with the fundamental rights on the commencement of the constitution, then that particular law would be void till the extent of its inconsistency. It must be noted here that in case of a law being inconsistent with the fundamental rights, then that particular law can be declared void only to the extent of its inconsistency and not the entire law would be declared void.
The definition provided under article 13 is such that a law if not completely inconsistent with the fundamental rights, can be saved from being declared absolutely void. The conditions under which such laws could be saved have been laid down buy the apex court of our country through its various landmark judgments.
With the advent of time, the Supreme Court has interpreted in number of ways and has laid down various doctrines for safeguarding the rights of people. The important doctrines laid down under the said article are Doctrine of eclipse, doctrine of severability and doctrine of waiver.
Article 13 of the Indian Constitution has four clauses.
Clause (1) of Article 13 deals with the pre constitutional law while clause (2) with the post constitutional law.
As per clause (1) any law that had been in force in the country before the commencement of the constitution if found to be inconsistent with the fundamental rights, would be declared void to the extent of its inconsistency. It is important to mention here that such laws become void only when so declared by the courts and not before that. Acts done before the commencement of the constitution in contravention or in pursuance of the existing laws, that after the commencement of the constitution becomes inconsistent with the fundamental rights shall not be affected. Hence, the article does not have retrospective effect.
In Keshavan Madhava Menon v. State of Bombay, proceedings had been initiated against the appellant for an offence that was punishable under Section 18 of the Press (Emergency Powers) Act, 1931. It was contended on behalf of the appellant that the impugned act was inconsistent with the fundamental rights guaranteed by the constitution, therefore it has become void and hence the proceedings against him cannot be continued further. But, the court rejected his contention and held that the article does not have retrospective effect and it cannot render such laws that has now become inconsistent with the fundamental rights, void ab initio for all purposes.
Clause (2) of Article 13 relates to post constitutional laws i.e., those laws that were made after the commencement of the constitution. As per this clause, the state cannot make any law that abridges or takes away the fundamental right of a person and if it does so, then such law would be be void to the extent of its contravention.
Clause (3) of the article defines the term “law” and “laws in force”. The definition includes statutory laws that may be made either directly by the legislature or by the subordinate authorities in exercise of their delegated legislative powers. Such laws made under delegated legislation include rules, notifications , orders, regulations and bye-laws as mentioned under this clause and other such laws. Apart from this, administrative orders of the executive, made in pursuance of statutory authority, if affect the legal rights of the citizens, would very much fall within the meaning of “law” under this section. But, if such administrative instructions are made for the purpose of guiding its officers and are not enforceable, then it would not come under the definition of “law”. It must also be noted that the term “law” do includes “custom” and “usage” having the force of law but the personal laws such as the Hindu Law and Mohammedan Law are not included within the meaning of this expression.
Clause (4) of Article 13 states that “nothing in this article shall apply to any amendment of this constitution made under Article 368”. It means that the amendments made by the parliament would not come within the definition of law under this section.
In Shankari Prasad Deo v. Union of India, when the Constitution (1st Amendment) Act, 1951 was challenged on the ground that it had the effect of abridging fundamental rights, and hence is not a valid law, the Supreme Court rejected this contention and held that the term “law” under Article 13(2) does not include amendments made by the parliament. The same interpretation was followed by the court in the case of Sajjan Singh v. State of Rajasthan. However, in Golak Nath v. State of Punjab, the Supreme Court by a majority of 6:5 held that the term “law” do includes amendments to the constitution and if any amendment abridges the fundamental rights, then it would be declared void. Finally, in Kesavananda Bharati v. State of Kerala, the Supreme Court overruled the Golak Nath case and held the Constitution (24th Amendment) Act, 1971, that inserted clause (4) in Article 13 and clause (3) in Article 368 valid. However, the court by a majority of 7:6 held that though the amendments are not included within the definition of law under Article 13(4), but they should not alter the basic structure of the constitution. So, if an amendment by violating the fundamental rights, violates the basic structure of the constitution, then such law cannot be exempted from being invalidated.
The important doctrines evolved by the courts under Article 13 of the Constitution are as follows :
Doctrine of Severability
It must be observed that Article 13 does not make entire act inoperative, but only that part is held inoperative which is inconsistent with the fundamental rights.
Doctrine of severability says that when some provisions of an act are inconsistent with the fundamental rights and if such provisions can be severed from the rest of the statute, then only the offending provision would be declared void by the court and not the entire act.
In State of Bombay v. F.N. Balsara, some provisions of the Bombay Prohibition Act, 1949 were held ultra vires, but the rest of the act was allowed to stand. The court held that “ The decision declaring some of the provisions of the act to be invalid does not affect the validity of the act as it remains.”
The court laid down the following rules for determining whether the statute can stand by severing the invalid portion or not :
The intention of the legislature behind enacting the act helps in determining whether the violative provision can be severed or not.
If the valid and invalid portions are so intertwined that they cannot be separated from one another, then the invalidity of some portion of the statute will render the entire statute invalid.
So, it can be concluded that if the inconsistent part of a statute can be severed in a way that the consistent part can exist independently, the doctrine of severability can be applied to such statutes.
Doctrine of Eclipse
The doctrine of eclipse says that any existing law which is inconsistent with the fundamental rights is not completely invalid, but is overshadowed by the fundamental rights and remain dormant but not dead. It would be valid if a question arises for determining the rights and obligations that would have incurred before the commencement of the constitution and also for those persons who have not been given the fundamental rights. Till the time, the law violates the fundamental right, it remains dormant, but if by an amendment such law no more violates the fundamental rights, then the law becomes alive and operative. This is the principle of doctrine of eclipse and has been elaborated by the courts in various judgements.
In the case of Bhikaji Narayan Dhakras v. State of M.P., the issue before the court was that if an existing act has become inconsistent with the fundamental rights on commencement of the constitution, then can it become valid again if there comes any amendment which removes such inconsistency. The court held that the effect of the amendment is that it removes the shadow and makes the impugned act free from inconsistency. The law therefore becomes valid after the constitutional impediment is removed.
The doctrine of eclipse was earlier applicable on just pre constitutional law but now it can also be extended to even post constitutional law to some extent as laid down in State of Gujrat v. Ambica Mills Ltd.
It is important to mention that the doctrine of waiver does not apply to the fundamental rights and such rights cannot be waived off by any person. This was clearly held by the court in Basheshar Nath v. CIT. in this case the issue before the court was that can a fundamental right be waived by a person who has it. The court in this case held that it not open to any citizen to waive off any of the fundamental rights that are conferred on them by Part III of the Constitution.
It has been clarified by the Supreme Court that fundamental rights of the people are those rights cannot be waived off. Any action of any person that shows voluntarily giving up one’s fundamental right cannot be considered valid. Fundamental rights cannot be waived off under any circumstance.
It must be noted that the laws made by the legislature are always presumed to be constitutional and that they are not violative of the fundamental rights. Therefore, if any person claims that a particular law is violative of the fundamental rights, then that person will have to prove and satisfy the court that the law is in abrogation of the fundamental rights.
Article 13 of the Indian Constitution provides a safeguard to the fundamental rights. It is the way to judicial review and helps to keep a check on laws that are being enacted by the State. It not only regulates the post constitutional law but also controls the existing laws that were there before the commencement of the constitution and are still existing.
Further, the judiciary has played an important role in interpreting the article in a way that rights of maximum can be secured. By evolving the rules of severability and eclipse, it has saved the laws from being declared dead completely if it can be sustained.
Cooley, Constitutional Limitation, Vol. I, 246.
The Constitution of India, 1950.
Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC128.
Shankari Prasad Deo v. Union of India, AIR 1951 SC 458.
Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.
Golak Nath v. State of Punjab, AIR 1967 SC 1643.
Kesavananda Bharati v. State of Kerala (1973)4 SCC 225.
State of Bombay v. F.N. Balsara 1951 AIR 318.
Bhikaji Narayan Dhakras v. State of M.P., AIR 1955 SC 781
State of Gujrat v. Ambica Mills Ltd., (1974)4 SCC 656
Basheshar Nath v. CIT., AIR 1959 SC 149.
Name of Author - Manshi Sinha
2nd year B.A. LL.B. student at
Vivekananda Institute of Professional Studies, GGSIPU, New Delhi