Author: Nishtha Mittal, AMITY LAW SCHOOL DELHI affiliated to GGSIPU
As it is rightly said, “Rights are nothing if not duly protected or enforced” similarly fundamental rights are mere constitutional rights if not endowed with supremacy over other constitutional rights and laws.
The constitution of India is known as ‘compilation of various documents’ from around the world. It is known to be the most bulky and voluminous document governing the largest democracy of the world. The drafting committee suggested for such rights to be incorporated in the document that shall form the basis of the constitution. The idea of such rights was that they cannot be abridged in any circumstances and were henceforth called ‘Fundamental Rights‘ which are found in Part III of the constitution.
To establish supremacy of such rights, Article-13 came into being. We shall learn the meaning and examine the scope of application of Article-13 in this article.
2. CONSTITUTIONAL DEBATE (Summary)
Constituent assembly debates held on 25th, 26th and 29th November, 1948 resulted in formation of a draft constitution which provided for Article-8 (parallel to current day Article-13). Article 8 was similar to Article 13 of present day constitution in most aspects except-
- It provides for an exception to clause (2) of the constitution, stating that this clause shall not apply any law that may be made by the legislature for removal of inequality or any disparity arising out of any existing law.
- It also did not define the term ‘law in force’ in clause (3) of the article. However, the chairman of the committee clarified this situation by defining ‘laws’ and ‘law in force’ in first amendment.
- The inclusion of ‘custom and usage’ in the term law was debated stating that it would give power to state to make custom rather than the people but this argument was rejected by the chairman of the committee.
3. MEANING OF ARTICLE-13
We shall discuss the exact provision that seeks to secure the ascendance of fundamental rights mentioned in part III of the constitution. Article-13 states that:
- All the laws enacted before the commencement of constitution and in force currently if inconsistent with the provisions of this section shall be void to the extent of the inconsistency;
- All the laws enacted by the states in derogation of the fundamental rights or this clause shall be void to the extent of the inconsistency;
- The term ‘law’ under this section includes any law, by-law, order, ordinance, rule, regulation, notification, custom or usage as enacted in the Indian territory; and
- The ‘laws in force‘ include any law enacted by the legislature or any other competent authority irrespective of its operation as a whole or in part, but it should not have been repealed by the authorities.
- This clause acts as a saving clause for the amendments made in Article-368 of the constitution on which, provision of this section do not apply.
4. JUDICIAL REVIEW
Judicial review is a power conferred upon the judicial system of the country to review any law or statute and pronounce upon its constitutionality. It is the part of basic structure doctrine and is indispensable part of judiciary as well. Article 13 confers this power of judicial review upon the courts if the law under scrutiny violates any provision of part III. Thus the same can be declared as ultra-vires and unenforceable thereon. To establish the supremacy of the constitution and not the legislature, one must adhere to article 13 which was incorporated in the constitution with a similar object.
5. SCOPE or AMBIT
In this part of the article, we shall examine the scope of clauses (1) and (2) of Article 13 discussing which enactments shall be considered as inconsistent with the fundamental rights of the constitution guaranteed in Part III.
5.1 Laws inconsistent with Part III
As seen in the above section, we can classify the laws governed by Article-13 into two parts:
- ‘Laws existing’ (before or since the commencement of the constitution)- this part states that any such law will become void if it violates any fundamental right despite of being incorporated before the incorporation of fundamental rights in the constitution. Such law shall be declared as unenforceable or non-est by the competent courts before which it shall remain in force as any other law.
- ‘Future laws’– this part talks about any future laws that maybe made by the competent authority or the legislature and acts as a restriction on such authority to make laws that are derogatory towards part III. It ensues a duty upon the legislature to keep in mind the existing fundamental rights and make laws accordingly. If not, such law shall be declared void and unenforceable by the court of law and shall thereon have no legal effect.
5.2 Void to the extent of inconsistency (meaning)
‘Void to the extent of inconsistency’ suggests that the laws in violation of fundamental rights are not declared to be void in totobut only that part of such law is void that is not in accordance with part III. Other part of the law shall remain intact and valid in its operation. Thus the Doctrine of Severability applies in this situation which shall be discussed in later section of this article.
Doctrine of severability: When a statute is declared to be unconstitutional as a result of inconsistency with fundamental rights, we shall apply the test of severability to analyze whether whole or any part of such statue shall be declared as void. If the inconsistent part is separable from the valid part to such an extent that it does not harm the substantiality of the law, such part shall be declared void and other part of law shall be valid. But if the inconsistent part is such that it cannot be separated from the law without changing the purpose, then such law as a whole shall be held to be void and unenforceable despite some part being valid. Following are some instances of application of the doctrine by the apex court in some landmark judgements:
- The test that whether the void part is separable or not was examined in the case of R.M.D.C. v. Union of Indiawhere apex court held that the provisions of the act in question were severable in nature stating the ‘Intention of legislature’ as a test. Whether the legislature knew about the void part while drafting the statute or not gives one an idea about the same.
- A.K Gopalan v. State observed that since section-14 of the preventive detention act, 1950 is separable from the main act without altering its purpose, it can be declared void without questioning the validity of the whole act. A similar judgement was delivered in the case of State of Bombay v. Balsara.
Doctrine of eclipse: The status given to the existing laws upon inconsistency is not of void-ab-initio but merely void or unenforceable. That is to say that such laws cannot said to void since their inception as at that time their was no application of Article 13 thus at the time they were as valid as any other law. Some following judgements establish the doctrine:
- Bhikaji v. State of M.P. where an amendment authorized the state government to make up the entire transport business to the exclusion of motor operators thus was repugnant to Article 19(1)(g) of the constitution. However restriction to the above freedom gave state enough powers to monopolize any business thus supreme court held that the purpose of the amendment was to clarify the provision. Thus law was merely eclipsed by fundamental right protection and amendment removed such eclipse.
- Deepchand v. State of Uttar Pradesh decided upon the question that whether the doctrine applied on post constitutional laws stating that the doctrine does not cover such laws because these laws are void-ab-initio thus no subsequent amendment could remove its eclipse as it was made after the inception of Article 13. However this judgement was overruled in the case of State of Gujarat v. Ambika Mills. Thus final situation being that this doctrine is applicable to both pre and post constitutional laws equally.
Doctrine of waiver: This doctrine states that no person can waive his fundamental rights enshrined in part III of the constitution that is nobody can give up his fundamental right voluntarily or otherwise.
Doctrine of lifting veil– this doctrine tests the constitutional validity of any law allegedly violating fundamental rights by ascertaining its true nature and impact considering preamble, circumstances in which it was enacted and previous history if any. This is done to scrutinize the act to the core examining its pros and cons to cure or give remedy to the situation arising out of such alleged violation.
5.3 Effect of inconsistency
The effect of such inconsistency shall not be retrospective in nature that is it does not give any type of ex-post facto effect to the application of fundamental rights. Thus any type of closed cases or actions that have been concluded in the past won’t have any effect of such inconsistency with fundamental rights. It only applies to existing and future laws violating part III.
Similarly, as it was held in Abdul Khader v. the State of Mysore, legal proceedings that were decided finally and disposed of in the past, before the enactment of this provision shall not be declared void on the ground of its inconsistency. This inconsistency is only prospective in nature thus apply on laws that can currently impact the rights of the citizens.
6. MEANING OF ‘LAW’ & ‘LAW IN FORCE’
As discussed above, the ‘laws in force‘ suggest all the pre-constitutional or post-constitutional laws that are existing in nature as discussed in clause (1).
The ‘Laws’ as mentioned in this article has a very wide interpretation. It’s an inclusive definition including wider connotation of the term ‘law’. It is said to include legislation and other enactments as usual, and also administrative orders by executive authorities. But it does not include:-
- Any governmental directions or instructions;
- Departmental order;
- Procedure established by law;
- Personal laws.
8. AMENDMENTS as LAWS?
Amendments under article 368 of the constitution are excluded from the scope of the term ‘law’ as provided in clause (4). This clause was added to the Article after a lot of contemplation. We shall examine the precedents involved in enactment of this clause that was added to the article in 24th amendment. While examining the above quotient, we should also conclude whether amendment made under article 368 form a part of ‘law’ as stated by above clause:
- Shankari prasad v. Union of India
Apex court in this landmark judgement held that, law does not include any amendment made by the legislature under article 368 thus in pursuance of its constitutional power. The article only applies to the laws made by legislature in exercise of its legislative power only. This interpretation was followed in the case of Sajjan singh v. State of Rajasthan.
- Golaknath v. State of Punjab
This case overruled the above judgement and established a new rule that every enactment including legislative and constitutional enactments are covered under the ambit of this provision. Thus including every branch of law whether governed by constitution or statutes. This was in pursuance of the principles of natural justice as if any amendment abridged fundamental rights, it would act as an escape vault for the authorities to violate part III. However, the decision was criticized and the final position of this issue that whether amendment under article 368 come under purview of ‘law’ was settled in the case of Keshvanand Bharti v. State of Kerala 1973 that overruled this case.
In contradiction of this judgement, Article-13 was amended and clause (4) was added to the provision exempting such amendments made under article 368 from the application of Article-13.
9. EXCEPTIONS AS TO APPLICATION
The scope of Application of this article is limited like any other article in the constitution. There are certain exceptions to the provision of Article 13 that are mentioned as follows:
- Article 31A– this article provides for acquisition of property by the state, amalgamation of the corporates and modifications of lease of mining and other rights of personnel involved in such corporations.
- Article 31B– all the acts and regulations passed under ninth schedule of the constitution were valid initially, but now they are only declared as valid if they are preserving the basic structure of the constitution.
- Article 31C– no law that seeks to enforce the provisions of article 39 (a) and (b) shall be declared as unconstitutional on the ground of inconsistency with the fundamental rights.
- Article 33- since the scope of Application of fundamental rights in this article rests with the parliament, that is to decide its application in armed forces governed by martial law, article 13 is not of much usage here.
To conclude this article, we can say that the framers of the constitution had a clear perception of part III in their minds thus to protect the same, Article 13 was brought into being.
Article 13 is a regulating provision conferring no right of its own but acting as a supplementary provision that exists only to protect the infringement of part III. It acts as a warning to legislature and maintains a system of checks and balances as it provides the power of judicial review to the courts. In a democratic country like ours, it is necessary to ensure no organ of the state abuse the powers conferred to it by the constitution as it is the supreme law of the land. Article 13 fulfills dual objective of regulation and acting as teeth of fundamental rights in interest of citizens of India.
It is worth noting that Article 13 not only differentiates between state and other laws, but also clearly specifies the field of application. Though the wordings in this article are concise in nature, still the Article implicitly manages to lay several doctrines to clarify any contingency that arises. Thus we can say that it is as a backbone of constitution as are the fundamental rights as these rights would have been abridged a numerous times if Article 13 would not have been in existence.
 The Constitution of India 1949.
 Via objective resolution passed on 22nd January, 1947.
 Jain M.P., THE INDIAN CONSTITUTIONAL LAW, 6th Edition, p 905.
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 Renu v. District and sessions judge, Tis Hazari, AIR 2014 SC 2175.
 Tahir v. District Board, AIR 1954 SC 630.
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 Madhubhai Amathalal Gandhi v. Union of India, AIR 1961 SC 21.
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 Inserted by amendment act no. 24, 1971.
 Chief Justice Kania in A.K.Gopalan vs state of Madras, AIR 1950 SC 27.
 Supra note 7.
 In totality.
 Jain M.P., THE INDIAN CONSTITUTIONAL LAW, 54th Edition, p.77-78.
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 Void from its institution.
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 Freedom of business, profession and trade.
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 Inserted by 1st amendment act.
 .R. Coelho v. State of Tamil Nadu, AIR 2007.
 Inserted by 21st amendment act.