This
article made a comprehensive and detailed study about Article 13 of the Indian Constitution
including its object and purpose, effect, judicial review, Doctrine of Severability,
Eclipse, Waiver and definition of law in light of the Constitutional amendment.
INTRODUCTION
Article
13 of the Indian Constitution holds significant importance in safeguarding the
fundamental rights of the citizens. Enshrined as a cornerstone of India's
democratic framework, it ensures that laws or actions that violate fundamental
rights are rendered void to uphold the spirit of justice, equality, and
liberty. This article aims to provide an in-depth understanding of Article 13
and its impact on protecting the fundamental rights of Indian citizens.
ARTICLE
13:
Article
13: Laws inconsistent with or in derogation of the fundamental rights
(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 provision of
this part shall to the extent of such inconsistency be void.
(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.
(3)
In this article, unless the context otherwise requires.
(a)
Law includes any ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of
law.
(b)
Laws in force include laws passed or made by a legislature or other
competent authority in the territory of India before the commencement of this
constitution not previously repealed notwithstanding that any such law or any
part thereof may not be then in operation either at all areas or in particular
area
(4)
Nothing in this article shall apply to any amendment of this constitution made
under Art. 368. (Added by with Amendment Act, 1971).
OBJECT
AND PURPOSE OF ARTICLE 13:
The
main object of article 13 is to secure the paramountcy of Constitution in regard
to fundamental rights. The first clause relates to the law already existing in
force and declares that pre-Constitution laws are void to the extent to which
they are inconsistent with the fundamental rights. The second clause relates to
Post-Constitution laws and prohibits the State from making a law which
either takes away totally or abrogates in part a fundamental right. The
expression “the State” is to be construed in conformity with article 12 as
judicially interpreted.
The
object of the definition in article 13 is to ensure that instruments emanating
from any source of law-permanent or temporary, legislative or judgement or any
other source - will pay homage to the constitutional provision relating to
fundamental rights. At the same time, clause (4) seeks to ensure that a
constitutional amendment does not fall within the definition of law in Article
13, and its validity cannot be challenged on the ground that it violates a
fundamental right.
EFFECT:
Effect
of inconsistency on existing law - This clause deal
with pre-Constitution or existing law that were in force before the
commencement of the Constitution. Article 372 states that all laws in force
immediately before the commencement of the Constitution will continue to be in
force until altered, repealed or amended by a competent legislature or
authority. Article 372 contains four explanations and are important in
understanding the meaning of the expression laws in force. Article 13(1)
stipulates that existing laws which are inconsistent with the provision of Part
III shall be void to the extent of the inconsistency.
The
inclusion of Art. 13(1) and (2) appears to be a matter of abundant caution.
Even in their absence the court would have the power to declare any legislative
enactment invalid if it infringed fundamental rights
A
law would be void if it (1) suffered from lack of legislative competence or (2)
was violative of Constitutional limitations on legislative power. In the former
case, the law would be a nullity but in the latter case it would be inoperative
or unenforceable.
Article
13(1) No retrospective operation: Article
13(1) is prospective in nature. All pre-constitutional laws inconsistent with a
fundamental right will become void only after the commencement of the constitution
They are not void ab initio.
Such
inconsistent laws remain valid for pre constitutional Act (Acts) and such laws
exist for all past transactions and for enforcing all rights or liabilities
accrued before constitution came into operation. But if a particular procedure
(to try offence) becomes inconsistent with Fundamental Rights then it became enforceable.
(Clause
(1) does not amend or repeal) The effect of this clause does not result in
repeal of a statute. An inconsistent law will not be wiped off or obliterated
from the statute book but will remain in operative as long as the bar of
Article 13(1) continues. If bar is removed, the law is revived.
The
effect of Article 13(1) is different from the effect of the expiry of a
temporary statute or the repeal of one statute by another Clause (1) only nullifies
or renders ineffective all existing laws inconsistent with fundamental rights
after the commencement of the Constitution.
JUDICIAL
REVIEW
E.S.
Crown says that it is the power of Courts to decide about constitutionality of
legislative acts. It has been borrowed from USA The power of judicial review
was however assumed by the Supreme Court of America in the historic case of Marbury
Vs. Madison.
Article
13 provides for the judicial review of all legislation in India, past as well
as future. This power has been conferred on the High Court and the Supreme
Court of India which can declare a law unconstitutional if it is inconsistent
with any of the provisions of part III of the constitution.
Scope
of Judicial review and its Nature:
In
the Indian Constitution there is an express provision for judicial review. In
this sense it is on more solid footing than it is in America. In the state
of Madras Vs. V. G. Row, AIR 1952 SC 196, it was observed that our
constitution contains express provisions for judicial review of legislation as
to its conformity with the constitution.
In
A.K. Gopalan Vs. State of Madras AIR 1950 SC 27. Justice Kania
pointed out that it was only by way of abundant caution that the framers of our
constitution inserted the specific provisions in Art. 13. It is all pervasive
in Indian constitution (inherent in our scheme i.e. even without mentioned in
articles.
In
Keshavanand Bharti and Minerva Mill Cases it was held that
judicial review is the basic feature of our constitution. Montesque supported
concept of separation of power, where he said that no one organ of government
should encroach upon the power of other. Now the question arises who will
decide whether there is encroachment or not it is laid down by judiciary
through judicial reviews
It
is based on the concept of Supreme Law i.e., constitution and ordinary law. If
ordinary law (legislative act) contravenes supreme law then it must be held
unconstitutional.
Judicial
review is applied as a tool to maintain supremacy of constitution it should be
used for that purpose if the law coming into force contravenes constitutional provision,
then it will be held void by means of Judicial reviews. It was held in Keshava
Madhava Menon Vs. state of Bombay AIR 1951 SC.
DOCTRINE
OF SEVERABILITY
The
need of this doctrine arises when there is an issue of invalidity and
unconstitutionally of part of a statute. Then question arises whether the whole
Act should be declared void or only that part, which is inconsistent with the
constitution. In order to sort out this problem, Supreme Court devised this
doctrine The basis of this doctrine lies in the word "to the extent of
such inconsistency (Article-13(1)).
This
doctrine is subject to one exception. Sometimes it happens that valid and
invalid parts are so closely mixed up that they can't be separated. In such
case the whole act is held to be void.
To
know whether they are separable or not, we have to see the intention of the
legislature i.e., legislature would have enacted valid part without enacting
void part If the answer is Yes then severable and if the answer is not then it
is not severable.
Kihoto
Hollohan Vs. Zachilhu AIR 1993 SC 412. In his case it
has been held that sec 10 of the 10th schedule minus para 7 remains valid and
constitutional. Rara 7 which has been declared unconstitutional is severable
from the main provisions of the tenth schedule
DOCTRINE
OF ECLIPSE
When
an existing law which is inconsistent and violates the fundamental rights, it
becomes inoperative from the date, when constitution came into force i.e.,
Existing law remain eclipsed and dormant to the extent it comes under shadow of
Fundamental right. It is dormant and eclipsed but not dead. And as soon as the
eclipse is removed the law begins to operate from the date of such removal
V.
Bhikaji Narain Dhakras Vs. State of M.P. AIR 1955 SC 781,
is an excellent illustration of the doctrine of eclipse. The amended provisions
of the Motor Vehicles Act enabled the Provincial Government to operate the
entire motor transport business to the exclusion of private transport operators
The provision became void when the Constitution came into force as it was
violative of Art. 19(1)(g) On 18 6.51 the Constitution was amended and the
State could carry on business to the complete or partial exclusion of citizens
or otherwise. The Government then issued a notification which was challenged
and the Supreme Court observed that the amended provision were void between
26.1.1950 and 18.6.1951; the impugned provision was eclipsed for the time being
on account of the provisions of Article 19(1)(a). The moment the limitation was
removed, the impugned provision became enforceable. It was held that all laws,
existing or future which are inconsistent with the provision of Part III of the
Constitution ate by express provision of Article 13 rendered void to the extent
of such inconsistency. Such laws are not dead for all purposes, they are valid
as regards pre-constitution rights and liabilities and after the Constitution
came into force as against non-citizens. The law remains in a dormant or
moribund condition only against citizens.
Scope
of Clause (2) - While clause (1) deals
with pre-constitutional laws, clause (2) prohibits States from making any law
taking away or abridging the right conferred by this part. In other words, it
will apply to laws which are made after the Constitution came into force. Laws
which took away or abridged the rights conferred by Part III would be void to
the extent of the contravention.
The
true scope of Art 13(2) was extensively dealt with the Ambica Mills case
(State of Gujarat Vs. Ambica Mills AIR 1974 SC 1300). It was held that
a post-constitutional law would be void only to extent of the contravention.
Therefore, the law would be void only against those persons whose fundamental
rights are taken away or abridged but would be perfectly valid as against those
who have no fundamental rights. For example, certain fundamental rights, like
Article 19 are conferred only on citizens and the law which is violative of
Article 19 would be void as against citizens but would be perfectly valid as
against non-citizens as they are not entitled to the freedoms under Article 19.
Reference
was made to Article 31B and the Ninth Schedule. Several laws relating to
agrarian reforms were revalidated with retrospective effect and put beyond the
challenge of fundamental rights. These laws are not required to be re-enacted
and are demonstrative of the fact that a law which is violative of Part ll is
not an absolute nullity. It will be only enforceable as long as the
constitutional prohibition continues under Part fit. If such a prohibition is
removed by a constitutional amendment, the law would acquire force proprio
vigore.
Clause
(2) - Operation against non-citizens - If
the meaning of the word “void” in Article 13(1) is the same as its meaning in
Article 13(2), it is difficult to understand why a pre-constitutional law which
takes away or abridges the rights under Article 19 should remain operative even
after the Constitution came into force as regards non-citizens and the post
constitutional law which takes away or abridges these nights should not be
operative as against non-citizens. Therefore, a post Constitutional law which
takes away or abridges the rights conferred by Article 19 will be void only to
the extent of contravention of rights conferred upon citizens under Article 19
but will be operative as against non-citizens". Accordingly, it was held
that certain labour laws could not be challenged by the company on the ground
that its right to property was taken away without the authority of law.
Article
13(2) and other Constitutional Provisions: Article
13(2) and Art. 359 ore port of the same Constitution and have to be read
harmoniously so that the latter Article is not destroyed altogether by Art
13(2) Linder Article 359, the President can declare that the provisions of Part
II (except Art. 20 and 21) shall be un-enforceable and fundamental rights shall
remain suspended during the period of emergency if the President order is
treated as a law within Art. 132), it would become unenforceable. It follows
that an order under Art 359 derives its force from that Article itself and
cannot be tested with reference to the provision of Part III which it
suspends.,
In
Case of Post-Constitutional Law Laws inconsistent with fundamental rights and
void from their very inception yet a declaration by the court of their
invalidity will be necessary. As distinguished from clause 1 clause 2 does not
make the inconsistent laws void ab initio.
Deep
Chand Vs State of UP. AIR 1959 SC 648: In this case
Supreme Court held that post constitutional law made under Article 13(2) which
contravenes a Fundamental Right is null from its inception and it is void ab
initio. The view of Deep Chand's case was modified by the supreme court in State
of Gujarat Vs Ambika Mills AIR 1974 SC: In this case the court held
that the post constitutional law which is inconsistent with fundamental right
(Article 19) is void against citizens but remains valid with respect to the non-citizens
who does not have this fundamental rights.
Dularey
Lodh vs 3rd Additional District Judge, Kanpur, AIR 1984 SC 1260:
in this case it was held that doctrine of eclipse applies to post
constitutional laws against citizens. So, we can say that Supreme Court modified
its view from Deep Chand to Dularey Lodh case. And in the later case il applied
the doctrine even against citizens with respect to post constitutional law.
DOCTRINE
OF WAIVER
This
doctrine is formulated by the American jurists i.e. (can a citizen waive his
fundamental right?)
In
Bashehsar Nath Vs. Income Tax Commissioner 1959:
it was held that citizen can't waive his fundamental right. The reason behind
it is that it is not only meant for benefit of individual but it is also an
obligation upon the state by constitutional that no person can relieve state of
this obligation.
Law:
The definition of law in this article is wider than, the ordinary connotational
of law, It includes the administrative order issued by an executive officer,
buy does not include administrative directions or instruction issued by the Government
for the guidance of its officers. But the personal law of Hindus, Muslims and
Christians are excluded from the definition of law. Part does not touch upon
personal laws of the parties as personal law has special guarantee.
IS
CONSTITUTIONAL AMENDMENT A ‘LAW’ UNDER ARTICLE 13 (2)
The
question whether the word 'law' in clause (2) of Article 13 also includes a
Constitutional amendment' was for the first time considered by the Supreme
Court in Shankari Prasad v. Union of India. The Court held that
the word ‘law’ in clause (2) did not include law made by Parliament under
Article 368. The word 'law' in Article 13 must be taken to mean rules or
regulations made in exercise of ordinary legislative power and not amendments
to the Constitution made in exercise of Constitutional power and, therefore,
Article 13 (2) did not affect amendments made under Article 368. This
interpretation of Shankari Prasad's case was followed by the majority in Sajjan
Singh v State of Rajasthan. But in Golak Nath v. State of Punjab, the
Supreme Court overruled its decision in the aforesaid cases, and held that the
word ‘law’ in Article 13 (2) included every branch of law, statutory,
Constitutional, etc., and hence, if an amendment to the Constitution took away
or abridged fundamental right of citizens, the amendment would be declared
void.
In
order to remove the difficulty created by the Supreme Court's decision in Golak
Nath's case the Constitution (24th Amendment) Act, 1971 was enacted. By
this amendment a new clause (4) was added to Article 13 of the Constitution
which makes it clear that Constitutional amendments passed under Article 368
shall not be considered as ‘law’ within the meaning of Article 13 and,
therefore, cannot be challenged as infringing the provisions of Part III of the
Constitution. The validity of the Constitution (24th Amendment) Act, 1971 was
considered by the Supreme Court in Kesavananda Bharati case 3 The Court
overruled the Golak Nath case and upheld the validity of the said
amendment.
CONCLUSION
Article
13 of the Indian Constitution reflects the framers commitment to protect and
promote the fundamental rights of every citizen. It establishes a strong
judicial review mechanism to prevent the government from enacting laws that
undermine the fundamental principles of justice, liberty, equality, and
fraternity. By ensuring the validity of fundamental rights and enforcing their
protection, Article 13 plays a crucial role in maintaining the democratic
fabric of India.
.jpeg)
No comments:
Post a Comment