Article 13

 Laws inconsistent with or in derogation of the fundamental rights

1. All laws before the commencement of the Constitution will be
void if they are against the FRs.
2. The state shall not make any law which is inconsistent with the
FRs.
3. Law a very broad connotation includes any ordinance, order, by-
law, rule, regulation, custom notification or usage having the
force of law.
 Article 13 expressly lays down the supremacy of FRs over any other law.
 Judicial Review – It is the power of the courts to pronounce upon the
constitutionality of legislative acts which fall within their normal
jurisdiction to enforce and the power to refuse to enforce such as they
find to be unconstitutional and hence void. It is a power that has been
vested in the HC and the SC to decide about the constitutional validity
of the provisions of statutes.
 Power corrupts and absolute power corrupts absolutely. When
Montesquieu gave his doctrine of separation of powers, he was
moved to put a curb on absolute and uncontrollable power in any
one form of government.
 The doctrine of JR was for the first time propounded by the SC of
America. Originally, the did not have an express provision for
judicial review. It was assumed by the SC in the historic case of
Marbury v Madison.
 In India there is an express provision in the Fifth and Fourteenth
Amendments for judicial review as stated in the State of Madras v.
V.G. Row.
 But even in the absence of such provisions the courts have the
power to invalidate a law which contravenes any constitutional
provision.
 In A.K. Gopalan v. State of Madras – Kania C.J. pointed out that it
with abundant caution that the framers of the Constitution inserted
Article 13. It is the constitution that is supreme and it is for the
judiciary to decide whether any enactment is constitutional or not.
 In Kesavananda Bharti’s case it has been held that JR is the ‘basic
structure’ of the Indian Constitution and therefore cannot be
damaged or destroyed by amending the Constitution under article
368 of the constitution.
 Doctrine of Severability – According to Article 13, a law is void only “to
the extent of the inconsistency or contravention.” The above provision
means that an Act may not be void as a whole, only a part of it may be
void and if that part is severable from the rest which is valid then the
rest may continue to stand and remain operative. The act will be read
as is the inoperative portion was not there.
 In A.K. Gopalan v State of Madras – section 14 of the Preventive
Detention Act, 1950 was declared as ultra vires. The decision that
section 14 is ultra vires didn’t affect the affect the validity of the Act
as it didn’t change the nature or the structure of the subject of the
Act.
 Similar case – Bombay v Balsara – Bombay Prohibition Act.
 Subject to one exception – the portion is so closely mixed up with
invalid portion that it cannot be separated without leaving an
incomplete or more or less mingled remainder, then the courts will
hold the entire Act as void. – Romesh Thappar v State of Madras.
 Elaborately considered in R.M.D.C v UOI – Section 2(d) of the Prize
Competition Act was broad enough to include compensations of
gambling nature and competitions involving skill. The SC held that
the provisions were severable and truck down those provisions
which related to competition not involving skill. The court held that
where after removing the invalid provision what remains is a
complete code then there is no necessity to declare the whole Act as
void. In such cases the intention of the Legislature is the
determining factor. The test is whether the Legislature would have
enacted the Act if the invalid provisions were to be taken out. It is
legitimate to take into account the history of the Legislation and the
object, the title and the Preamble to find about the intention.
 State of Bombay v Untied Motors – In taxation laws where taxes are
imposed on subjects which are divisible in nature and some of the
subjects are exempt from taxation, the taxation statue will not be
wholly void. Void only for those subjects where constitutional
exemption is attracted.
 Doctrine of Eclipse – The prospective nature of Article 13(1) has given
rise to the doctrine of eclipse.
 It is based on the principle that a law which violates the FRs does
not result into nullity or isn’t void ab initio but becomes only
unenforceable and remains in a moribund condition.
 The doctrine envisages that a pre-constitution law inconsistent with
with a FR was not wiped out altogether from the statute book after
 the commencement of the Constitution as it continued to exist in
respect of rights and liabilities which had accrued before the date of
the Constitution. Therefore, the law in question will be regarded as
having been “eclipsed” for the time being by the relevant FR.
 This applies to pre-Constitution laws not post-Constitution laws.
PECL were in force before the Constitution and only then became
void where PTCL which contravened with FRs were void ab initio
from the very beginning – Deep Chand v State of UP.
 State of Gujarat v Ambica Mills – PTCL is not non-existent for all
cases and purposes. This law which takes away the right conferred
by Article 19 will be operative as regards to non-citizens. Such a law
will become void ab initio against citizens because FRS are
conferred on them.
 They remain in dormant for the citizens but not for non-citizens.
 Bhikaji v State of MP – here the constitutional impediment was
removed on Berar Motor Vehicles Act, 1947. It became enforceable
against citizens and non-citizens. This law was eclipsed for the time
being by the FRs. As soon as the eclipse was removed the law begins
to operate from the date of such removal.
 Doctrine of Waiver – The doctrine of waiver has no application to the
provisions of law enshrined under Part 3 of the Constitution. It is not
open to an accused person to waive or give up his Constitutional rights
and get convicted. – Behram v State of Bombay
 Bashesher Nath v I T Commissioner – here the petitioner by entering
into an agreement to pay tax had waived his FR guaranteed under
Article 14. The majority expressed the view that the doctrine of waiver
as formulated by some American judges cannot be considered for
interpreting the Indian Constitution.
 The court held that it is not open for a citizen to waive any of the
FRS conferred by part 3 of the constitution. These rights have not
only been put for the benefit of an individual but as a matter of
public policy and for the benefit of the general public. – Olga
Tellis v Bombay Municipal Corporation the undertaking could
not waiver off Article 21.
 It is an obligation imposed on the State by the constitution
because a large majority of our population are economically
poor, educationally backward and politically not yet conscious of
their rights.
 In such circumstances it is the duty of this Court to protect their
rights against themselves.
 Definition of Law – Clause (3) defines ‘law’ and “laws in force”.
 Statutory Law – made directly by the legislature or by the other
subordinate authorities under the delegated law-making powers.
 Delegated legislation appears under various names – rules,
orders, regulations, notifications and bye-laws.
 Sub-delegated legislation also comes within the purview.
They will stand nullified when the Act under which it is
made is held unconstitutional under clause (1) or clause (2).
 Ordinances made by the President or the Governor or by
bodies set up under the constitution will be law.
 Administrative orders of the executive if made under
pursuance of statutory authority and affects the legal rights
of the citizen – law. But issued for guidance of its officers
and not meant to enforce legal obligations – not law.
 Custom – law includes custom and usage. Gazula Dasartha Rama
Rao v State of A.P. – even if there was a custom which was
recognised that custom must yield to a FR. But personal laws are
not included in that expression. Further court has observed that
religious beliefs, customs and practices based upon religious faiths
and scriptures cannot be treated to be void. A reasonable custom is
binding on the courts like an Act of the Legislature. Even binding
customs if they are in derogation of FRs shall become inoperative
after the commencement of the Constitution.
 Constitutional Amendments – First considered in Shankari Prasad v
UOI - the word law in clause (2) did not include law made by the
parliament but are rules and regulation made in exercise of ordinary
legislative power and not amendments. It was followed by a
majority in Sajjan Singh v State of Rajasthan. BUT in Golak Nath v
State of Punjab, the SC overruled those cases and held that law
included every branch of law – statutory, constitutional, etc., and
hence if an amendment abridges a FR – will be declared void.
Subsequently in Kesavananda Bharti v State of Kerala, the SC
overruled the Golak Nath case and held that Constitution (24th
Amendment) Act, 1971 which stated the amendments passed under
368 shall not be considered as law is valid as long as it does not
question the basic structure of the Constitution.