Article 13 of Constitution of India

The Indian Constitution, the cornerstone of the nation’s democracy, guarantees its citizens fundamental rights essential for personal dignity, liberty, and equality. Among its various provisions, Article 13 plays a pivotal role in safeguarding these rights by ensuring that laws inconsistent with or derogatory to the fundamental rights are declared void. This article serves as a bulwark against legislative overreach, providing the judiciary with the power to review and strike down unconstitutional laws. Its provisions also foster accountability and uphold the principles of justice and equality in India.

What is Article 13 of the Constiution of India?

Article 13 of the Constitution of India serves as a safeguard for fundamental rights by ensuring that any laws inconsistent with or derogatory to these rights are declared void. It applies to both pre-constitutional and post-constitutional laws, stating that any existing law before the Constitution’s commencement, if found inconsistent with fundamental rights, shall be void to the extent of the inconsistency. It also prohibits the State from making new laws that infringe upon fundamental rights. 

Also, Article 13 provides a broad definition of “law,” covering ordinances, rules, regulations, customs, and usages having the force of law. A key feature of Article 13 is its role in enabling judicial review, allowing courts to strike down unconstitutional laws. However, constitutional amendments made under Article 368 are exempt from its purview. Overall, Article 13 acts as a protector of individual liberties and ensures legislative compliance with constitutional principles.

Text of Article 13 of Constitution of India

“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 Pan, 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 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.”

Historical Background of Article 13

The inclusion of Article 13 was a product of meticulous deliberations in the Constituent Assembly. Recognising the importance of protecting fundamental rights from legislative encroachment, the framers included provisions for judicial review, enabling courts to invalidate laws violating these rights. Influenced by global constitutional practices, such as the judicial review doctrine established in the U.S. Supreme Court’s decision in Marbury v. Madison (1803), Article 13 embodies a commitment to uphold justice and democracy.

Significance of Article 13

• Judicial Review: Article 13 empowers the judiciary to ensure that all legislative actions comply with fundamental rights. This authority underpins the rule of law and prevents abuse of power by the legislature or executive.
• Safeguarding Fundamental Rights: The provision acts as a guardian of rights enshrined in Part III of the Constitution, ensuring that these rights remain protected from arbitrary legislative actions.
• Accountability: By subjecting laws to judicial scrutiny, Article 13 holds the legislature accountable and ensures adherence to constitutional principles.

Retrospective Effect of Article 13 of Constitution of India

The retrospective effect of Article 13 was addressed in the landmark case of Keshavan Madhava Menon v. State of Bombay (1951), where the Supreme Court ruled that laws inconsistent with fundamental rights are void prospectively, not ab initio. This means that such laws remain valid for actions taken before the Constitution’s commencement but become void for future applications.

Individuals prosecuted under pre-constitutional laws that violate fundamental rights cannot claim protection for past offenses. However, if legal proceedings are ongoing and the law is subsequently declared void, further prosecution cannot continue under that law. 

The Court clarified that the Constitution does not have a retrospective effect in striking down laws, ensuring that laws existing before 1950 cannot be invalidated retrospectively. Thus, Article 13 serves as a prospective safeguard of fundamental rights, preventing future violations but not annulling past actions.

Key Doctrines Under Article 13

Several key doctrines have been evolved through judicial interpretations to uphold the principles enshrined in Article 13. These doctrines ensure that laws in conflict with fundamental rights are appropriately dealt with while maintaining the balance of legislative intent and constitutional mandates. The primary doctrines under Article 13 include the Doctrine of Severability, Doctrine of Eclipse, and Doctrine of Waiver, among others.

Doctrine of Severability

The Doctrine of Severability, also known as the Doctrine of Separability, ensures that if a portion of a law is inconsistent with fundamental rights, only the unconstitutional part is declared void, while the remaining valid parts of the law continue to be operative. This doctrine applies to both pre-constitutional and post-constitutional laws.

Legal Basis in Article 13

• Article 13(1): States that pre-constitutional laws inconsistent with fundamental rights are void only to the extent of the inconsistency.
• Article 13(2): Post-constitutional laws that violate fundamental rights are void to the extent of the contravention.

Key Case Law: A.K. Gopalan v. State of Madras (1950)

• The Preventive Detention Act, 1950, was challenged for violating Article 14 (right to equality).
• The Supreme Court held that Section 14 of the Act was unconstitutional, but the remaining provisions were separable and continued to be in force.

Significance of the Doctrine

• Ensures the validity of a law is not entirely nullified due to certain unconstitutional provisions.
• Helps avoid legislative redundancy and allows lawmakers to rectify specific sections without repealing the entire statute.

Doctrine of Eclipse

The Doctrine of Eclipse applies primarily to pre-constitutional laws that are inconsistent with fundamental rights. It states that such laws are not rendered completely void but remain inoperative or “eclipsed” as long as they conflict with fundamental rights. If the conflict is removed by a constitutional amendment, the law can regain its validity.

Legal Basis in Article 13(1)

• Pre-constitutional laws inconsistent with fundamental rights remain dormant rather than void ab initio.

Key Case Laws:

1. Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955): A state law empowering the government to monopolise motor transport was challenged under Article 19(1)(g). The Supreme Court held that after the 1951 amendment, which allowed such monopolies, the previously void law could now operate.
2. Mahendra Lal Jaini v. State of Uttar Pradesh (1962): Clarified that the doctrine applies only to pre-constitutional laws and not to post-constitutional laws, which are void from inception.
3. Deep Chand v. State of Uttar Pradesh (1959): The Supreme Court ruled that post-constitutional laws inconsistent with fundamental rights are void from the beginning and cannot be revived by future constitutional amendments.

Key Takeaways

• Applicable only to pre-constitutional laws.
• The law is not entirely nullified but rather put in suspension.
• Can be revived if the constitutional conflict is removed.

Doctrine of Waiver

The Doctrine of Waiver states that individuals can voluntarily relinquish a right conferred upon them by law. However, the Supreme Court has held that fundamental rights cannot be waived because they are granted to safeguard public welfare and constitutional integrity.

Legal Position in India

Unlike in the U.S., where individuals can waive their rights, the Indian judiciary has taken a strict approach, ruling that fundamental rights are inviolable and non-negotiable.

Key Case Law: Basheshar Nath v. Commissioner of Income Tax (1958)

• The Supreme Court in Basheshar nath case ruled that an individual cannot waive fundamental rights conferred under Part III of the Constitution.
• The Court emphasised that these rights are meant for the collective benefit of society and cannot be compromised.

Contrasting View: Justice S.K. Das’s Dissent

• Justice Das opined that if a right is personal and does not affect the larger public interest, an individual should be allowed to waive it.

Significance

• Ensures that fundamental rights are uniformly applied and protected.
• Prevents individuals from being coerced into surrendering their fundamental protections.

Related Case: Olga Tellis v. Bombay Municipal Corporation (1985)

• Pavement dwellers had signed an undertaking not to contest the demolition of their huts.
• The Supreme Court held that fundamental rights cannot be waived, emphasising the right to shelter under Article 21.

Doctrine of Prospective Overruling and and Article 13

This doctrine allows courts to apply their rulings prospectively, ensuring that laws previously considered valid remain unaffected until the ruling is delivered.

Key Case: Golaknath v. State of Punjab (1967)

• The Supreme Court ruled that constitutional amendments affecting fundamental rights would not apply retroactively.
• Ensured that laws passed before the ruling remained valid to avoid administrative chaos.

Doctrine of Basic Structure and Article 13

Although not directly a part of Article 13, the Doctrine of Basic Structure, evolved in Kesavananda Bharati v. State of Kerala (1973), limits Parliament’s power to amend fundamental rights. It states that amendments cannot alter the essential features of the Constitution, such as:

1. Supremacy of the Constitution.
2. Democratic and secular character of India.
3. Separation of powers.
4. Rule of law.

This doctrine ensures that fundamental rights remain protected even against constitutional amendments.

Applicability of Article 13 to Constitutional Amendments

The applicability of Article 13 to constitutional amendments has been a subject of intense debate and judicial scrutiny. The core issue revolves around whether constitutional amendments fall under the definition of “law” within the meaning of Article 13, which invalidates laws that contravene fundamental rights.

The Supreme Court first addressed this question in Shankari Prasad Singh Deo v. Union of India (1951), where the validity of the Constitution (1st Amendment) Act, 1951, was challenged for violating fundamental rights. The Court held that constitutional amendments made under Article 368 do not fall within the purview of Article 13, reasoning that the term “law” in Article 13 refers only to ordinary legislation and not amendments to the Constitution.

However, this interpretation was overturned in I.C. Golaknath v. State of Punjab (1967), where the Court ruled that constitutional amendments are subject to Article 13 and can be declared void if they infringe upon fundamental rights. The Court stated that fundamental rights are transcendental in nature and cannot be abridged by Parliament, thus limiting its amending power.

The controversy was finally settled in Kesavananda Bharati v. State of Kerala (1973), which introduced the Doctrine of Basic Structure. The Court upheld the 24th Constitutional Amendment Act, ruling that Parliament has the power to amend fundamental rights; however, such amendments must not violate the basic structure of the Constitution. The judgement struck a balance by allowing amendments while ensuring that the core principles of the Constitution, such as democracy, secularism, and judicial review, remain intact.

Thus, while constitutional amendments are not entirely outside the purview of Article 13, they are subject to scrutiny under the doctrine of basic structure, ensuring that fundamental rights and constitutional values are preserved.

Judicial Interpretation and Landmark Cases Related to Article 13 of Constitution of India

Indian courts have interpreted Article 13 extensively through various landmark judgements, shaping its application and clarifying its scope in different contexts. The judicial interpretations have primarily addressed the retrospective and prospective effects of Article 13, its applicability to personal laws, constitutional amendments, and the evolving scope of fundamental rights.

Pre-Constitutional Laws and Judicial Interpretation

Keshavan Madhava Menon v. State of Bombay (1951)

The case of Keshavan Madhava Menon v. State of Bombay revolved around the prosecution of Keshavan Menon under the Indian Press (Emergency Powers) Act, 1931, which was enacted before the commencement of the Constitution. Menon challenged the law, arguing that it violated his fundamental rights under Article 19. The Supreme Court held that Article 13(1) applies prospectively, meaning that pre-constitutional laws inconsistent with fundamental rights do not become void from the very beginning (void ab initio) but are rendered unenforceable only after the commencement of the Constitution. This ruling established that any acts done under such laws before 1950 could not be challenged retrospectively.

Personal Laws and Article 13

One of the contentious issues regarding Article 13 is whether personal laws—such as those governing marriage, divorce, and succession—fall within its purview.

State of Bombay v. Narasu Appa Mali (1951)

The validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, was challenged, arguing that it violated the fundamental rights under Article 13.
The Bombay High Court in State of Bombay v. Narasu Appa Mali  ruled that personal laws are not “laws” within the meaning of Article 13, thereby excluding them from judicial scrutiny under fundamental rights.

Indian Young Lawyers Association v. State of Kerala (2018) (Sabarimala Case)

Indian Young Lawyers Association v. State of Kerala challenged the age-old custom of prohibiting women from entering the Sabarimala temple, arguing that it violated gender equality under Article 14 and religious freedom under Article 25. The Supreme Court overruled the decision in Narasu Appa Mali and held that customs and personal laws that infringe fundamental rights fall within the ambit of Article 13, making them subject to judicial review.

Applicability to Constitutional Amendments

The question of whether constitutional amendments are considered “laws” under Article 13 has led to a series of landmark judgements.

Shankari Prasad Singh Deo v. Union of India (1951)

The Constitution (First Amendment) Act, 1951, was challenged for allegedly violating fundamental rights under Article 13. The Supreme Court in Shankari Prasad Singh Deo v. Union of India held that constitutional amendments are not “laws” within the meaning of Article 13, implying that Parliament has unrestricted power to amend fundamental rights.

I.C. Golaknath v. State of Punjab (1967)

The validity of certain land reforms that violated property rights under fundamental rights was challenged.
In a significant departure from the previous ruling, the Supreme Court in I.C. Golaknath v. State of Punjab held that constitutional amendments fall within the ambit of Article 13, meaning that fundamental rights cannot be amended by Parliament.

Kesavananda Bharati v. State of Kerala (1973)

The 24th Constitutional Amendment, which granted Parliament the power to amend any part of the Constitution, was challenged. The Supreme Court in Kesavananda Bharati v. State of Kerala introduced the Doctrine of Basic Structure, ruling that while Parliament has the power to amend fundamental rights, it cannot alter the Constitution’s basic structure, which includes democracy, secularism, and judicial review.

Expanded Interpretation of Fundamental Rights

Maneka Gandhi v. Union of India (1978)

The government impounded Maneka Gandhi’s passport without giving her reasons or an opportunity to be heard, leading to a challenge under Article 21. The Supreme Court in Maneka Gandhi v. Union of India ruled that Articles 14, 19, and 21 are interconnected, and any procedure established by law must be fair, just, and reasonable.

Protection During Emergencies

The ability of the State to suspend fundamental rights during emergencies has been a controversial topic under Article 13.

ADM Jabalpur v. Shivkant Shukla (1976) (Habeas Corpus Case)

During the Emergency of 1975, thousands of people were detained without trial. The petitioners challenged their detention under Article 21 (right to life and personal liberty). The Supreme Court in ADM Jabalpur v. Shivkant Shukla ruled that during an emergency, Article 21 could be suspended, meaning the State could detain individuals without legal recourse.

Personal Laws and Their Inclusion Under Article 13

Personal laws, governing family and religious matters, have historically been excluded from Article 13. However, evolving judicial interpretations highlight their impact on civil life and fundamental rights. The Supreme Court’s rulings in the Shayara Bano (2017) and Sabarimala (2018) cases underscore the need for judicial review of personal laws and customs inconsistent with constitutional principles.

Conclusion

Article 13 of the Indian Constitution is a cornerstone of India’s democratic framework. By empowering the judiciary to invalidate laws inconsistent with fundamental rights, it upholds the Constitution’s supremacy and protects individual liberties. However, its effectiveness depends on addressing existing challenges, such as the inclusion of personal laws and extending its application to private individuals. As India progresses, a flexible and inclusive interpretation of Article 13 will be essential to preserve the constitutional spirit and ensure justice for all citizens.