Article 13 has been divided into two sub-parts –

13(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.
13(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.
Article 13(1) refers to pre-Constitution laws while Art. 13(2) refers to post-Constitution laws.
A law is void if inconsistent with a Fundamental Rights. A void statue is unenforceable, non-
est1, and devoid of any legal force: courts take no notice of such a statute, and it is taken
to be notionally obliterated for all purposes.
Any law made in contravention of Part III is dead from the very beginning and cannot at all be
taken notice of or read for any purpose whatsoever.
Some Fundamental Rights apply to all persons, citizens as well as non-citizens, e.g.,
Articles 14, 21, while some of these Rights, such as Art. 19, apply only to citizens.
A. No Retrospective Effect
Article 13(1) of the Constitution relating to the fundamental Rights have no
retrospective effect. All inconsistent existing laws, therefore, become void only from
the commencement of the Constitution. Acts done before the commencement of the
Constitution in pursuance or in contravention of the provisions of any law, which after
the commencement of the Constitution become void because of the inconsistency with
the fundamental rights cannot be challenged in any court of law. The inconsistent law
is not wiped out so far as the past acts are concerned. In Keshavan Madhava Menon v.
State of Bombay, a person was being prosecuted under a law before the Constitution
came into force. After the Constitution came into force, the law i.e. Section 18 of
Press (Emergency Powers) Act became void under Art 19(1)(a). It was contended
that Art. 13(1) could not apply to him as the offence had been committed before
the enforcement of the Constitution and, therefore, the proceedings against him

1
"Does not exist", non est factum: a defense by way of denial of a deed
 should not be continued. The Supreme Court said that the article did not have the
effect of rendering the laws, which existed on the date of the commencement
of the Constitution, void ab initio for all purposes if they were inconsistent with the
fundamental rights.
B. Doctrine of Eclipse
The Doctrine of eclipse was enunciated in Bhikaji v, State of Madhya Pradesh and it envisages
that a pre-Constitution law inconsistent with a Fundament Right 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 Fundamental Right. It was in a dormant or moribund condition for the time
being. Such a law was not dead for all purposes. The doctrine of eclipse has been held to
apply only to the pre-Constitution and not to the post-Constitution laws. The reason is
that while a pre-Constitution law was valid when enacted and, therefore, was not void ab
initio, but its voidity supervened when the Constitution came into force, a post-
Constitution law infringing a Fundamental Right is unconstitutional and a nullity from its very
inception.
In the above case, an existing state law authorised the state government to exclude all
private motor transport operators from the field of transport business. Parts of the law
became void on the commencement of the Constitution, as it infringed the provisions
of article 19(1)(g) and could not be justified. In 1951, clause (6) of article 19 was amended
so as to permit the government to monopolise any business, however, SC removed the
constitutional impediment and the impugned act ceased to be unconstitutional.

C. Doctrine of Severability
According to the clauses of Article 13, a law is void only “to the extent of the
inconsistency or contravention” with the relevant Fundamental Right. 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.
If, however, it is not possible to separate the valid from the invalid portion, then the whole of
the statute will have to go due to the reason that the part that is valid is bound up with the part
that is invalid that the valid part cannot survive independently. The rule that invalidity is only
to the extent of inconsistency is not peculiar to the Constitution rather is a general
principle of statutory interpretation. In determining whether the valid parts of a statute are
severable from the invalid parts, the intention of the legislature is the determining factor.
In RMDC v. Union of India, the Prize Competition Act which was broad enough to include
competitions of a gambling nature as well as those involving skills. Under Art. 19(1) (g),
Parliament could restrict prize competitions only of a gambling nature but not those involving
skills. The Supreme Court let some parts of the act intact because Parliament would have still
enacted the law to regulate competitions of gambling nature. Where the provisions of the act
are so mixed together i.e. the invalid portion and the valid portion such that it would not
possible to separate them, then the act as whole would deemed to be void.
CLAUSE (2)
Future Laws – laws made after the commencement of the Constitution
The state is prohibited from making any law which takes away or abridges any of the rights
conferred by Part III.
State of Gujarat vs. Shri Ambica Mills Issue:
Whether a law, which takes away or abridges the fundamental right of citizens under Article
19 (1) (f) would be void?
As a pre-Constitution law taking away or abridging the fundamental rights under article
19 remained operative after the Constitution came into force so also a post-Constitution
law offending article 19 remained operative as against non-citizens.
This is due to the fact that the law was void only to the extent of inconsistency with
the fundamental rights conferred under article 19.
It was held that if a law takes away or abridges the fundamental right of one class of
persons or of minorities or denominations, it could not be void as against others who have no
such fundamental right. A void statute could be revived by constitutional amendment - as per
article 31B, curing of the defect takes place with retrospective operation from dates on
which the acts were put on statute book. Sometimes, courts also apply their decision
prospectively i.e., though they found a law against the fundamental rights, they invalidate
it for the future. For the reasons given in above case, the doctrine of eclipse should apply to
laws falling under Clause (2) of Article 13.
The protection against impairment of the guarantee of fundamental rights is determined by 1)
the nature of the right 2) interest of the aggrieved party 3) degree of harm resulting from the
State action. The state action must be assessed in relation of its operation upon the rights of an
individual.
In Benett Coleman’s case, it was held that the true test was the direct effect of the
impugned state action on a particular fundamental right. In case of Maneka Gandhi, court
said that the the direct and inevitable consequence of the state action must be considered.
However, none of the cases clearly state what effect of state action has to be considered as
direct or indirect and hence, it has to be judged with reference to protected right or activity.
Laws made by competent legislature are deemed to be constitutional and therefore,
deemed to be not violative of the fundamental rights and one must prove and satisfy the court
that such a law is violative of FR.
If two interpretations of law are possible, one that makes it unconstitutional because it
conflicts with a fundamental right must be preferred over the other in order to save the law
from unconstitutionality. In case of Kedarnath Singh, the court saved Section 124A of IPC
from unconstitutionality under article 19 (1) (a) by holding that for constituting an offence
under that section, the speech must have tendency or intention of creating public disorder.
Clause (4) – Constitutional Amendments Shankari Prasad Singh vs. Union of India.
It was contended that the Constitution Act, 1951 that amended the fundamental rights was not
a valid law within the meaning of clause (2) of article 13. The SC rejected the contention and
held that the word ‘law’ did not include a law made by Parliament rather the word ‘law’
must be taken to mean ‘rules and regulations made in exercise of ordinary legislative power
and not ‘amendments to the Constitution made in exercise of constituent power’. The same has
been reiterated in the case of Sajjan Singh vs. State of Rajasthan.
However, the case of Golaknath, SC held that word ‘law’ included amendments to
Constitution and if an amendment took away a fundamental right, the Amending Act itself was
void and ultra vires.
Subsequently, SC in case of Kesavananda Bharati overruled Golaknath and held that under
article 368 all provisions including FRs can be amended, however, the basic structure of the
constitution could not be amended. Even if an amendment is not ‘law’ within meaning of article
13, it does not get exempted from being invalidated on ground that by violating a FR, it violates
the basic structure.
DOCTRINE OF BASIC STRUCTURE
Shankari Prasad v Union of India (1951) Ist amendment 1951 including 31-A and 31-B in
Constitution was challenged as violation of fundamental rights. These provisions provide a
protective umbrella to all Act that are included in 9th Schedule of the Constitution. Once an
Act in included in 9th Schedule by a constitutional amendment the inclusion of such Act cannot
be challenged on the ground of violation of the fundamental rights conferred by Part III of the
Constitution, judicial review of such amendment The petitioners argued that the amendment
inserting Article 31-A and 31-B was unconstitutional and that Article 13(2) controlled
constitutional amendments under Article 368. It was argued that an “amendment” was “law”
under Article 13(2) and therefore the Supreme Court should declare the above amendment as
invalid. Rejecting this argument the Court held that power to amend the Constitution
including fundamental rights is contained in Article 368 and law in Article 13 did not
include an amendment. Parliament amends the Constitution in the exercise of its
constituent power and laws are made in the exercise of legislative power. There is no
limitation on the amending power of Parliament and it could amend any provision of the
Constitution including fundamental rights.
Sajjan Singh v State of Rajasthan ( 1964) 17th amendment Act 1964 adding several
legislations in 9th Schedule was again challenged as violating fundamental rights. The Court
approved the view of Shankari Prasad and held that there is no limitation on the amending
power of Parliament.
Golaknath v State of Punjab (1967) Inclusion of a Land Reform legislation in 9th
Schedule by 17th Amendment Act 1964 was challenged as violating fundamental rights.
By 6.5 majority the Supreme Court held that fundamental rights are outside the amending
power of Parliament if an amendment took away or abridged fundamental rights.
Shankari Prasad and Sajjan Singh were overruled. Principles laid down in Golaknath.
1. The Constitution embodies an implied limitation that fundamental rights are out of reach
of Parliament as fundamental freedoms and rights enjoy a place of prominence in the
Constitution. They are sacrosanct and are natural rights.
2. Article 368 does not contain the power to amend the Constitution. It only provides
the procedure to amend the Constitution. Power to amend is a legislative power which resides
in the residuary power of Parliament under Article 248 read with entry 97 List I.
3. Amendment is law and is controlled by Article 13 (2) which states that State cannot
make law taking away and abridging fundamental rights.
Golaknath was a product of crack in Indian National Congress weakening the hold of Indira
Gandhi. She decided to remove constitutional hurdle created by Golakhnath in the path
of her policy for poverty removal. She sought premature dissolution of Lok Sabha and won
a massive mandate to strengthen her hands for any constitutional change.
24th Amendment 1971 was passed to nullify Golaknath
1. Clause 4 was added to Article 13 providing that nothing in Article 13 shall apply
to a Constitutional amendment under Article 368.
2. Clause 3 was added to Article 368 to provide that nothing in Article 13 will apply to
amendments made under Article 368.
3. Marginal note to Article 368 was changed as power and procedure to amend the Constitution
4. Article 368(1) clarified that Parliament may in the exercise of constituent power
amend by way of addition, variation or repeal any provision of the Constitution.
5. This amendment clarified the distinction between Constituent power and legislative power.
25th Amendment Act 1971 inserted Article 31 C giving priority to Article 39(b) and
(c) over fundamental rights under Article 14, 19 and 31.

Kesavananda Bharti v State of Kerala (1973)

The validity of 24th and 25th amendments was challenged in this case. All the 13
judges upheld the validity of 24th amendment, overruled Golaknath and agreed that
Parliament has power to amend any provision of the Constitution including fundamental
rights. The majority of seven judges (Sikri CJ, Shelat, Hegde, Grover, Jaganmohan Reddy
and Khanna JJ) held that power of amendment was subject to inherent and implied limitation
and in the exercise of amending power Parliament cannot damage or destroy the basic
structure or framework of the Constitution. Six judges, Ray, Palekar, Mathew, Dwivedi, Beg
and Chndrachud dissented holding that there is no limitation on the constituent power of
Parliament. The majority judges in their separate opinion mentioned the following features as
constituting the basic features of the constitution:
1. Supremacy of the Constitution
2. Republican and democratic form of government
3. Separation of powers
4. Secular character
5. Dignity of the individual
6. Mandate of welfare state
7. Unity and integrity of nation
8. Preamble, fundamental rights and directive principles
The basic structure was built on certain foundational values which could not be destroyed by
amending the Constitution. To amend means to change and not to destroy. The doctrine of
basic structure will act as a safety valve against the arbitrary use of amending power.

Whether there are implied limitations on the amending power or not would depend upon the
interpretation of word ‘amendment’. Justice Khanna said that the word amendment postlated
that the old Constitution must survive without loss of identity and ust be retained though in the
amended form, and thus, the power does not include the power to abrogate the basic structure.

After Kesavananda Chief Justice Sikri retired and Indira Gandhi appointed Justice Ray
superceding three senior most judges as Chief Justice thus undermining the independence
of judiciary. On 12 June 1975 Justice Jag Mohan Lal Sinha of Allahabad High Court
invalidated the election of Indira Gandhi and disqualified her for next six years from
contesting election on a finding that she had committed corrupt practice during her election.
To overcome the effect of the High Court order Parliament passed 39th Constitution
Amendment Act in 1975 withdrawing the jurisdiction of all courts over the election dispute
involving the Prime Minister.

In Indira Nehru Gandhi v Raj Narain (1975) the Supreme Court for the first time applied
Kesavananda and struck down the 39th amendment as violating democracy implicit in free
and fair election, equality and rule of law which are the basic feature of the constitution. The
exclusion of judicial review damaged the basic structure of the Constitution. The Court upheld
the amendments in Representation of People’s Act 1951and clarified that the doctrine of basic
structure does not apply to ordinary legislation. To overcome Kesavananda, Indira Gandhi
appointed Swaran Singh Committee during emergency to review the entire Constitution.
On the recommendation of this report Parliament passed 42nd amendment in 1976. The
validity of amendment to Article 368 and 31-C was challenged in Minerva Mills Ltd
v Union of India (1980). Clauses 4 and 5 were added to Article 368 which validated all existing
and future constitutional amendments and removed all limitations on the amending power of
the Constitution. Amendment made to Article 31 C provided that a law to implement
directive principles could not be challenged on the ground of violation of Articles 14, 19 and
31.

The court held that 1) limited power of Parliament to amend Constitution 2) harmony and
balance between FRs and DPs3) FRs in certain cases 4) Power of judicial review in certain
cases were basic features of the Constitution. The Supreme Court unanimously invalidated
clause 4 and 5 of Article 368 as violating the basic feature of limited amending power. Limited
amending power is one of the basic features of the Constitution and Parliament cannot enlarge
its limited power by amending the Constitution. Parliament is creature of Constitution
and derives its powers from it and hence laws passed by Parliament can be declared ultra vires.
However the majority of four out of five judges (Justice Bhagwati dissented) declared the
amendment to Article 31C was declared as disturbing the harmony and balance between
Fundamental Rights and Directive Principles which a basic feature of the Indian Constitution.

In Waman Rao v Union of India (1981) held that while 31 A and 31B and 9th Schedule were
immune from challenging any addition to 9th Schedule but after 23rd April 1973 the date of
Kesavananda judgment any addition to 9th schedule could be challenged on the ground of
violation of Basic Structure.

In M Nagaraj v Union of India (2006) the Supreme Court unanimously upheld the validity of
77th, 81st 82nd and 85th amendment in Article 16 (4-A) (4-B) and proviso to Article
335 holding that these provisions did not destroy the equality code of the Constitution.
Nagaraj recommended a general test for determining whether an amendment violates the basic
structure of our Constitution. The court stated that only those constitutional principles
that constitute the “constitutional identity” and stand at the pinnacle of the “hierarchy of
constitutional values” form part of the basic structure and are beyond the amending power of
Parliament.
In I R Coelho v Union of India (2007) a nine judge bench of the Supreme Court Unanimously
held that amendments adding new laws in 9th Schedule after Kesavananda judgment
on 24.4.1973 were subject to basic structure requirement but fundamental rights especially
Articles 14, 15, 19 and 21 are parts of basic structure and the effect of inclusion of a
law in 9th Schedule results in abrogation of Article 32 as such laws cannot be challenged
on the ground of violation of Part III rights. Therefore addition of any law in 9th can be tested
on the touchstone of basic structure doctrine.
In Ashoka Kumar Thakur v Union of India (2008) the Supreme Court upheld the
validity of 93rd Amendment inserting clause 5 to Article 15 and held the amendment did not
violate any basic feature of the Constitution. The Doctrine of basic structure has now been fully
entrenched as a constitutional principle. However the content of basic structure is not yet settled
and will depend upon case to case development. The following features have so far been
identified by the Supreme Court as constituting part of basic structure:
1. Judicial review (L Chandra Kumar v Union of India 1997)
2. Democracy (Indira Nehru Gandhi v Raj Narain 1975)
3. Secularism (S R Bommai v Union of India 1994)
4. Rule of Law (Indira Nehru Gandhi v Raj Narain 1975)
5. Harmony and Balance between Fundamental Rights and Directive Principles (Minerva Mills
Ltd v Union of India 1980)
6. Limited Amending Power (Minerva Mills Ltd v Union Of India 1980)
7. Equality (Indra Sawhney v Union of India 1993)
8. Independence of Judiciary (Kumar Padma Prasad Union of India 1992)

Test for Basic Structure

The Supreme Court in M Nagaraj and I R Coelho has clarified Kesavananda as laying down
the test of identity. It is not an amendment of a particular article but an amendment that
adversely affects the wider principle of constitutional law such as republicanism, secularism,
equality and democracy or other foundational values that changes the identity of the
Constitution are impermissible.
In 1951, within a year of the Constitution coming into force, the Constitution(First
Amendment)Act was passed and this sought to curtail the right to property guaranteed
by art 31. Its constitutionality was questioned in Shankari Prasad’s case which ruled
that ordinary laws cannot amend the fundamental rights but constituent laws can and held
that fundamental rights are subject to the amending power of the Parliament under art 368.
Later Sajjan singh’s case relying on Shankari’s case held that words ‘amendment’
means amendment of all the provisions of the Constitution. In Golaknath’s case, SC
overuled earlier decisions and held that Parliament annot amend the FRs as there are
asigned transcendental position.The 24th Amendment removed difficulties created by
Golaknath’s case and resotred the amending power and also extended its scope by Parliament
may in the exercise of constituent power amend by way of addition, variation or repeal any
provision of the Constitution and art 13 would not apply to Constitution amending acts.
Keshavanand Bharati’s case, judges upheld the validity of 24th amendment and held that power
of amendment was subject to inherent and implied limitation and in the exercise of amending
power Parliament cannot damage or destroy the basic structure or framework of the
Constitution. In India Gandhi vs. Raj Narain, SC added features as ‘basic structures’
to the list laid down in Keshavanand Bharati. 42nd Amendment Act was challenged in the
case of Minerva Mills’s case the Supreme Court unanimously invalidated clause 4 and 5 of
Article 368 as violating the basic feature of limited amending power. Limited amending
power is one of the basic features of the Constitution and Parliament cannot enlarge its
limited power by amending the Constitution.
In IR Coelho vs. State of TamilNadu’s case, the constitutional validity of 9th schedule on
he touchstone of basic structure doctrine can be adjudged by applying the direct impact
and effect test i.e., rights test which means the form of amendment is not the relevant
factor but the consequence thereof would be determinative factor. The actual effect and
impact of the law on the rights guaranteed under Part III has to be taken into account
determining whether or not it destroys the basic structure. Laws included in the 9th
Schedule by amendments shall be a matter of Constitutional adjudication by examining
the nature and extent of infraction of FR by a statute sought to be constitutionally
protected . If the infraction affects the basic structure then such laws will not get protection
of the 9th schedule. In Ashoka Kumar Thakur’s case to determine if a constitutional
amendment violates a basic structure, a “two step” effect test as laid in IR Coelho’s case is to
be applied on a case-by-case basis. Step one requires us to ask if the impugned amendment
affects a facet of the basic structure. If it does, Step Two requires us to ask if the effect on the
facet of the basic structure is to such an extent that facet’s original identity has been altered.
Applying this test amounts to saying that the form of a constitutional amendment is
irrelevant, it is the consequence there of that matters. A total deprivation of the
fundamental rights, even in one limited area, may amount to abrogation of the basic
structure. In this case, the court also observed that the ‘width test’ asks id an amendment is
so wide that in effect it goes beyond Parliament’s amending power. The court cannot ignore
consequences to which a particular construction would lead. After the reaffirmation and
extension of the applicability of the doctrine of basic structure in Minerva Mills case, it
is evident that so long as the decision in Keshavananda is not overturned any amendment is
liable to be interfered with by the court on the ground that it affects one or other of the basic
features of the Constitution. One post Keshavananda development of the doctrine is that the
court has declined to foreclose the list of the basic features as suggested by different
judges in the Keshavananda case. In Indira Gandhi’s case, it has been observed that the
claim of any particular feature of the Constitution to be a ‘basic structure’ would be determined
by the Court in each case that comes before it. So far, quite a multitude of features have been
acknowledged as ‘basic’ by diff judges though there is no consensus as regards each of them
in particular.