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    Article 13 (1)

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    article 13

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    © All Rights Reserved
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    18 views7 pages

    Article 13

    Uploaded by

    simran pathan
    article 13

    Copyright:

    © All Rights Reserved
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    of 7
    Laws inconsistent with fundamental rights Article 13 is very important provision which gives strength to the fundamental right by making it justiciable, All institutions created under the Constitution are subordinate to it. No law can be enacted to contravene fundamental rights. Supreme Court in Renu v. District and Sessions Judge, AIR 2014 SC 2175 observed that the object of Article 13 is to secure paramountcy of fundamental rights. Further, Supreme Court in Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1 observed that Article 13 is a protective provision and an index of importance and preference that the framers of Constitution attach to the fundamental rights. Article 13 not only declares pre-constitutional law as void to the extent of inconsistency with the fundamental rights, it also prohibits the State from making laws which either take away or abridge fundamental rights. Article 13 Article 13(1) Article 132) Pre-constitutional Laws Post-constitutional Laws. Article 13(1) provides that all laws in force in the territory of India immediately before the commence- ment of the Constitution shall be void to the extent to which they are inconsistent with the provisions of ‘Scanned with CamScanner A Cope Gide il Sie Mai sano: Vomit ort Mt ofthe Contin. K means that if any preConsitionl wi consent with Fundam righ then it Becomes vi rom 26* January, 1950, the dat on whch the Cony in ot Una came into force Article 13(2) provides thatthe State shall not make any Jw which takes away-oF abridge mental ight conferred by Pr I of the Constitution aed any aw mainte contravention ft fundamental rights shal tothe extent of contravention be void. Thus, no fundamental right can beng by shes cither byte acto or nina action, Ae 130) des with econ Jay and Article 132 deal with pstonsitutiona as PreConstittional laws: PreConstittional lave ae thos laws which were in force immeting, ticle 372 ofthe Constitution lays down that before the commencement ofthe Constitution. A ‘othe proisons of hit Contin al laws in force in he esto of ein immetiatly bey ‘commencement ofthe Constitution shall continuein force therein until altered o repealed or amend competent legilatue. In effect this Arle provides the validity tall preconstitutional laws. Howey _must be noted here that this provision is subject to other provisions ofthis Constitution. This means hy Artice 372 doesnot have any overriding effect on other constitutional provisions, particularly Article 13, ional awsinsof as thy In this light now we refer to Article 131). I ays down that all preconsti are inconsistent with the provisions of Par I, shall tothe extent of such inconsistency be void. It mean, ‘that all preconstitutionl laws which infiinge any fundamental right shall be void to such extent. Ail 13(1)as prospective effect. Preconsttutionl laws shall be void after the commencement ofthe Cons. tion and not void abn. In Keshav Madhav Menon v. State of Bombay, AIR 1951 SC 128 Supreme Court observed that these preconsttutionsl ws exists for al pasts acts, ie prior to commencement of ‘Constitution. A person an be prosecuted and punished forall offences committed before the Constitution came into force under such laws. It clearly means that pre Constitutional laws ae prospectively void and not void ab inti they contravene Prt I. Inout legal system there are innumerable pre-consitutional laws which continue to govern ws. The ‘common ones are Indian Contract Act, 1872, Indian Evidence Act, 1872, Transfer of Property Act, 1882, (Code of Civil Procedure, 1908, Indian Penal Code, 1860 ec Post Constitutional laws In simple terms, post Constitutional laws ae laws which have been enacted bythe competent leplature after the commencement ofthe Constitution. Article 13 (2) prohibits the State from pasing any such laws which abridges or takes away the rights conferred in Par IL Ifthe State makes 8 Taw which is inconsistent with the Fundamental Rights, that law shall be void tothe extent of such inconsistency. PostConstituional ls are void ab nto. They aesilbora laws. Supreme Courtin Deep (Chand v. State of U.P, AIR 1959 SC 648 observed that anything done under sucha law whether closed, ‘complete or inchoate wil be wholly ileal Supreme Courtin rij Mohan Lal v. Union of India, (2012) — ‘Scanned with CamSeanner Ws damental eign that itcannotenact © held that the power fetes iit by» ‘inconsistent wth he fandament sighs unde Pat I Differences between recon ional and post-consitutional law 1. reconittoalfws arevallom hebeginnig ha ifthe at apis the provisions ofthe CConsttation then sey become void, wheres if pst-constiutona ws violate the provisions ‘of Part ofthe Constitution they ate void ab nt 2 Preconstittiona lis validate the previously incredibles, whereas postconstutional ws ‘eo sinc the ginning. the any at done under them becomes void ab initio and doesnot create any rights obligations Judicial Judiciary assumes plac of great sgnifcanein a demacratc polity Courts not ony resolve disputes been citizens but they also resolve disputes beeen ciizens/people and State In many countries doc- ‘wine of adic review s prevalent. The Constitution isthe supreme law ofthe land and any law inconsistent ‘ith the provisions of the Constitution is void. Couns perform the role of expounding the provisions of| ‘the Constitution and exercise the power of declaring the lw or administrative action vid onthe grounds of inconsistency with provisions of Constitution. In exerciing the power of judicial review, the courts ‘discharge functions which may be regarded as crucial to entire governmental process. Meanings of veveral Provisions of Constitution may not be slfevident. f there is no independent authority to interpret and expound it then the written constitation would bean empty formality. This task cannot be performed by any politcal body. Since judiciary is ie from active politica bis it is best suited to perform the role of interpreter ofthe Constitution Doctrine of judicial review isan integral part of American judicial proces. The concep of judicial ‘view originated in USA. Ina landmark case of Marbury v. Madison US Supreme Cour cleat held that, ithad the power of judi 3 review and it can teview the consttuionalityof the Acts pase by the Con tess, Court held that the Constitution seks to define and limit the powers of the legilature and it would bbe of no purpose if legislature oversteps it every time. If the law inconsistent with Constitution is not declared void then the written constitution woul oe alls significance. Judicial review in India: Doctrine of judicial review isieplicitin the Constitution of India, Jui review has implicit sanction in Articles 13,32, 226 Supreme Courin State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, AIR2010SC 1476 eld thatthe power of judicial ‘review is vested in Supreme Court and High Courts under Atle 32 and 226 respectively. Iti an integral and essential feature ofthe Constitution constiatng its ase structure Article 19Q) provides that if State makes lw which is inconsistent with any provisions of Part then tothe extent of contravention such lw is void. lt isthe funvion ofthe court oases individual law isd ‘Scanned with CamScanner A Compton Gui dle Mee Binatone *Gnumet ighi and tedom chic ining anaes Ace 3 ae gy ear a ieee of Funda RA ya Mh Cou ii comtaee ay fhe amen ge 2019) 4S0C101 shel hat Contin, sure ae fame it of enim iny, expecially Supreme Cot, aed unconstitutional by Supreme Cou Supreme Court in Balwant Singh v. Commr. OF Police, Protect Seren Cor hashed ree isthe suture ofthe Cotton Chay uma. Union of na (999) SCC 40) 1 meas that the pow fil even an cera consionanenden Sprene Cur in Mlnera Mls. Union of nda Akg SC789 hela fon ofcourse pronounes he vaio lw. the cours ate deny of this pons the he anda sights wl bcome 2 mer adore and the wil main ‘thot ethori: In State ofRajsthan . Union onda, AIR 1977 SC 1361 Cour ht Son (Court istheukimate interpreter ofthe Constitution. ‘Law’ under Article 13, ‘The word aw a en dined in Art 134) ofthe Const. The erm a” nc ay crnans, order bye legato, ntifeaton stom or uae hangin he etry of Tada frcsof lw. In Dwarkanath the Stt198 Supreme Cot bl that adminisavecdet nag sheercu officers ifsubt tothe author fhe my wil come under the word ‘a: In Dasara ‘ama Rao, Sate of Andhra Pradesh 196) Supreme Cour hel tat thee ‘aw nota nl ‘cw of leper but alo such castoms and practices which have the force of lav, Therefor, such

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