Article 13

Article 13 provides teeth to the fundamental rights. It makes the rights justiciable, i.e., enforceable in the Courts. It declares all laws inconsistent with or abridge or violate the fundamental rights. Article 13 thus, deals with the impact of Fundamental Rights on State action.

The main object of Article 13 is to secure the paramountcy of the Constitution especially about fundamental rights. “Article 13”, in fact, provides for the judicial review of all laws, whether past or future.

It is said to be the Charter for judicial review. This power is exercisable by the Supreme Court as well as by the High Courts under Articles 32 and 226, respectively. The Courts can declare a law unconstitutional if it is inconsistent with the rights conferred by Part III of the Constitution.

This power of judicial review over legislative action has been declared to be an integral and essential feature, constituting part of the basic structure of the Constitution.

  • Clause (1) declares that all laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of part III of the Constitution.
  • Clause (2) of this article provides that the State shall not make any law which takes away or abridges the fundamental rights conferred by Part III of the Constitution and any law made in contravention of fundamental rights, shall to the extent of contravention, be void.
  • Thus, it expressly provides for ‘judicial review’ of all the legislations in India, past as well as future. This Power has been conferred on the Supreme Court (Art 32) and the high courts (Art 226) that can declare a law unconstitutional and invalid on the ground of any of the Fundamental Rights.
  • Clause (3) of this article gives the term ‘law’ a very broad connotation which includes- 
    • Permanent laws enacted by the Parliament or the State legislatures.
    • Temporary laws like ordinances issued by the President or the State Governors
    • Statutory instruments in the nature of delegated legislation (executive legislation) like order, byelaws, rules, regulation or notification; and 
    • Non-legislative sources of the law, that is, custom or usage having the force of law.

Thus, not only legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void.

  • Clause (4) of this article says that nothing in this law shall apply to any amendment of this constitution made under Article 368.

Analysis: Clauses (1) and (2) of Article 13 thus declare that laws inconsistent w or in contravention of the fundamental rights, shall be void to the extent of inconsistency or contravention, as the case may be. It means that, where only a part of the law is inconsistent with contravenes the fundamental right; it is only that part which shall be w under Article 13 and not the whole of the law. The Courts apply the doctrine of severability or separability to separate the valid portion of the law from the invalid portion.

The Doctrine of severability

was discussed at length in the case of R.M.D.C v. the State of Bombay, and the court laid down the following principles.

  • In order to find out whether the valid part of the statute can be separated from the invalid part, the intention of the legislature is the determining factor.
  • In case the valid and non-valid parts of a particular statute are inseparable then it will invariably result in the invalidity of the entire statute.
  • When the statute stands independently after the invalid portion is struck out then it will be upheld, notwithstanding that the rest of the Statute has become unenforceable.
  • In cases where the valid and invalid parts are separable but both of them were intended to be part of the same scheme, then the whole scheme will be invalid.
  • There may be instances where the valid and invalid parts are separable and not part of the same scheme, however, invalidating the valid part leaves the rest too thin and truncated, then also it will be invalidated as a whole.
  • Severability is to be determined by reading the statute as a whole and not specific provisions or parts.
  • To find the legislative intent behind a statute, it will be legitimate to take into account the history, object, title and preamble.

In Keshavan Madhava Menon vs State of Bombay, the court held, a law in force before the commencement of the Constitution if inconsistent with a fundamental right, did not become void “in toto or for all purposes or for all times or for all persons. Such law became void only to the extent of its inconsistency with the fundamental right.

It followed that the existing law, because of its inconsistency with a fundamental right, was not completely obliterated or wiped out altogether from the Statute Book. The only effect is that the law got into a dormant or moribund state or that it was shadowed by the fundamental right it violated, or that it was so eclipsed. 

elements of doctrine of eclipse

Definition of the term Law and Law in Force under Article 13 (3)

Indian Young Lawyers Association vs The State of Kerala: The NarasuAppa Mali judgment was overruled by Justice Chandrachud in this case. In this case, the custom of not allowing women into the Sabarimala temple was challenged before the Apex Court and the question arose whether customs come within the ambit of Article 13.

Constitutional amendment a ‘law’ under Article 13(2):

 This question was for the first time considered by the Supreme Court in Shankari Prasad vs Union of India.

  • The Court held that the word ‘law’ on Article 13 must be taken to include rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made under Article 368.
  • Thus, Article 13(2) did not affect amendments made under Article 368.
  • The Court maintained its stance in Sajjan Singh vs State of Rajasthan, 1965.
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