Law and You > Constitutional Law > Constitutionality of Law (Article 13)
To keep the belief of people in the State, Article 12 and 13 were introduced. Article 12 gives the definition of state and talks about the responsibility the state has towards people and their fundamental rights whereas Article 13 of the Indian constitution which presents itself in four parts, makes the concept of fundamental rights more powerful and gives it a real effect. This article protects the individual’s fundamental rights by rendering any law null and void if it intervenes with the liberty or is inconsistent in any way with the fundamental right of the person. In this article, we shall discuss the constitutionality of law in the light of 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 provisions 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.-
“law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law;
“laws in force” includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
Significance of Article 13:
- It upholds the supremacy of Indian constitution
- It paves the way to judicial review.
- It enables us to review the pre-constitutional and existing laws
- Under this article, the power of judiciary is considered to be the supreme in guarding and enforcing the fundamental rights guaranteed in the Indian constitution under part III.
- It provides check on parliament and state legislatures.
- It protects Rights and freedom of people and get the protection from the arbitrary invasions of the state.
Purpose of Article 13:
Article 13 not only asserts the supremacy of the Indian Constitution but also makes way for judicial review. It is through Article 13 that the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country. The provisions under Article 13 ensure the protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
Article 13 provides a constitutional basis to judicial review since it gives the Supreme Court or High Courts the authority to interpret the pre-constitutional laws and decide whether they are in sync with the principles and values of the present Constitution. If the provisions are partly or completely in conflict with the legal framework, they are deemed ineffective until an amendment is made. Similarly, the laws made after the adoption of the Constitution must prove their compatibility, otherwise, they will be deemed as void.
Although the legitimacy of judicial interventions in Constitutional matters has sparked debates, yet in most cases, the power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.
Fundamental rights exist from the date on which the Indian constitution came into force i.e., on 26th January 1950 hence fundamental rights became operative from this date only. The laws before the existence of the constitution must prove their compatibility with the fundamental rights. Only then these laws would be considered to be valid otherwise they would be declared to be void.
Commentary on Article 13 (1):
Article 13(1) talks about the pre-constitutional law as it says that the laws existing before the commencement of the constitution if found inconsistent with the provisions present in article 13 then they will be void. This article is only applicable to citizens as non-citizens do not have fundamental rights so they can’t challenge the validity of any law. Law declared void under 13(1) remains operative for non-citizens.
Doctrine of Eclipse:
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can be removed by constitutional amendment to the relevant fundamental right so that eclipse vanishes and the entire law becomes valid. In other words, till the time a law violates a fundamental right provided by the Indian Constitution, it is dormant and inoperative. But if such fundamental right is amended and thereby, the law no more violates, then in such a situation the law becomes alive and operative. Such eclipsed laws exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. It is only against the citizens that they remain in a dormant or moribund condition but they remain in operation as against non-citizens who are not entitled to fundamental rights.
In Bhikhaji v. State of M.P., AIR 1955 SC 781 case, the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government to take up the entire motor transport business in the province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1)(g) of the Constitution. Article 19(1)(g) of the Constitution confers the Right to practice any profession or to carry on any occupation, trade or business to all citizens subject to Art. 19 (6) which enumerates the nature of restriction that can be imposed by the state upon the above right of the citizens. In 1951, Article 19 amended and clause (6) and authorised monopoly of government.
In Deep Chand v. State of Uttar Pradesh, 1959 AIR SC 648, case, the Court held that a post- Constitution law is void from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as non-citizens are concerned after the Constitution came into force. This is so because prior to commencement of constitution legislature had the competence to pass such act but after the commencement of the Constitution, the legislature does not have the competence to pass such legislation.
In Mahendralal Jain v State of U.P. AIR 1963 SC 1019, case, the Apex Court observed that Article 13(1) applies to laws that are not still borne, while Article 13(2) applies to still borne laws. So, the Court held that the doctrine of eclipse does not apply to post constitutional laws.
In Keshavan Madhava Menon v. The State of Bombay, AIR 1951 SC 128 case, the Supreme Court held that Article 13(1) of the Indian Constitution does not make existing laws which are inconsistent with fundamental rights void ab initio, but only renders such laws ineffectual and void with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect, and if therefore an act was done before the commencement of the new Constitution in contravention of the provisions of any law which was a valid law at the time of the commission of the act, a prosecution for such an act, which was commenced before the Constitution came into force can be proceeded with and the accused punished according to that law, even after the commencement of the new Constitution.
Doctrine of Severability (Separability):
The Doctrine of severability is also known as the doctrine of separability. This doctrine was devised by the Supreme Court to resolve the problem of the validity of laws which are declared as unconstitutional. When a part of the law is declared as unconstitutional, then a question arises whether the whole of the law is to be declared void or only that part of the law which is unconstitutional should be declared as void.
The doctrine of severability is necessary to protect the validity of the act as a whole without which an entire act would become void due to the invalidity of one provision of the act. According to the doctrine of severability, a law is void only “to the extent of the inconsistency or contravention” with the relevant Fundamental Right according to Article 13 of the Indian Constitution. It 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, and then the rest may continue to stand and remain operative. The Act will then be read as if the invalid portion was not there. If, however, it is not possible to separate the valid from the invalid portion, then the whole of the statute will have to go.
In A. K. Gopalan v. State of Madras, AIR 1950 SC 27 case, where section 14 of Prevention Detention Act says that if any person is being detained under this Act, then he or she may not disclose the grounds of his or her detention in court of law. This provision was found out to be in violation of Article 14 and Article 22 of the constitution. It was held by the Apex court that it is section 14 of the Act which is to be struck down not the act as a whole. It was also held that the omission of section 14 of the act will not change the object of the act and hence it is severable.
In D.S. Nakara v. Union of India, AIR 1983 SC 130 where the Act remained valid while the invalid portion of it was declared invalid because it was severable from the rest of the Act.
In RMDC v. Union of India, 1957 AIR SC 628 case, where the Prize Competition Act which was broad enough to include competitions of a gambling nature as well as those involving skills. Under Article 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 be deemed to be void.
Commentary on Article 13 (2):
Article 13(2) talks about the post constitutional laws. It says that once the constitution is framed and came in effect then any of the state may not make laws that takes away or abridges the fundamental rights of an individual and if done so then it would be void till the extent of contravention. The state is prohibited from making any law which takes away or abridges any of the rights conferred by Part III.
In State of Gujarat vs. Shri Ambica Mills, AIR 1974 SC 1300 case, where certain Labour welfare fund Act was challenged, as certain sections in it were against the fundamental rights. Since the fact that the laws made by the state after the constitution is framed would be declared void if those laws are against the fundamental rights, but here the question arose that fundamental rights are only granted to citizens but what will happen in the case of non-citizens or a company (company here is the respondent i.e Ambika mills). It was held by the Apex Court that since the fundamental rights are only granted to the citizens but not to the company or any non-citizen, therefore the labour welfare fund Act is valid.
Commentary on Article 13 (3):
Article 13(3) of the Constitution gives the definition of the term “Law” and the “law in force”. The definition is an inclusive one and it encompasses the following things –
- An Ordinance promulgated by the president because it is issued after exercising the legislative powers of the executive
- It also included an order, rules, regulations and bye-laws created for a particular purpose. They generally fall under the category of subordinate legislation which is not enacted by the legislative body.
- Any custom or usage having the force of law are also included in the ambit of Article 13(3). These customs and usages are not enacted by the legislature. The main purpose of giving this broad definition of law was to predict all possible scenarios that in future hamper the rights of individuals.
- An administrative rule or some regulations made by some statutory body like SEBI, RBI, etc. will also come under the ambit of the law.
- It is important to note that personal laws like Hindu Law or Muslim law will not fall under the ambit of Article 13(3) of the constitution.
- Exceptions: The administrative and the executive orders are being covered under article 13 but if their nature is just to give instructions or guidelines then they would not be covered under article 13. Personal laws which are not being covered under article. Ordinances under 123 and 213 are not covered under Article 13.
The term “law in force” implies that the laws made by any legislature or any other competent authority before the commencement of the constitution. Thus, “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India. It also includes administrative orders by executive before the commencement of this Constitution and not previously repealed,
Commentary on Article 13 (4):
Art 13 refers to “Legislative Law” (made by legislature) as opposed to “Constituent Law” (made to amend the Constitution). Under Article 13(4) any of the amendment made in Article 368 of the Indian constitution would not be challenged under Article 13. Moreover, if the amendment so made would be against the fundamental rights then also it would not be challenged under Article 13.
In the Shankari Prasad v. Union of India, AIR 1951 SC 458 case, the Supreme Court held that an amendment to the constitution is not a law and the state has unlimited power to amend the constitution even if they violate the provision of the constitution.
In I. C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 case, the Supreme Court held that constitutional amendment passed according to article 368 is a law within the meaning of article 13. 24th amendment act 1971 override this judgement and declare that amendment under article 368 is not law within the meaning of article 13. However, 24th amendment act 1971 was declared void in Minerva Mills case, where it was stated that amendment under article 368 is law within the meaning of article 13 and if it contravenes fundamental rights it can be declared void.
In Kesavananda Bharti v State of Kerala, AIR 1973 SC 1461 case, where the validity of 24th and 25th amendments was challenged. All the 13 judges upheld the validity of 24th amendment, overruled Golaknath case 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.
Judicial Review:
It is the ultimate power of the judiciary to review and determine the validity of a law or an order may be described as the powers of “judicial review”. Judicial Review ensures that the legislation does not has the absolute power to pass the laws. The courts have the authority to review the laws to check the constitutionality and validity of the laws. Indian Judiciary also plays the observer and interpretational roles in judicial review. The concept of Judicial Review in Indian Constitution is incorporated from the American Constitution.
The system in India has been governed by the principal of ‘procedure established by law’ under which it has one test i.e. Whether the law has been made with procedures of law or not, if not will be declared unconstitutional. The supreme courts also have powers of reviewing the enactments of both the parliament and state legislatures. This makes the courts more powerful and grants an instrument of the judicial review.
The various provisions of the system of judicial review have been granted by our Constitution in various articles. These articles are Article 13, 32, 131-136, 143, 226, 145, 246, 254, 251 and 372.
In L. Chandra Kumar v. union of India, 18 March, 1997 case, the Apex Court held that the power of judicial review over legislative action vested in High Court under article 226 and in the Supreme Court under article 32 of the Constitution and it is the integral and essential feature of Constitution constituting basic structure.
Conclusion:
In the history of our Constitution, Article 13 has played a vital role in shaping our constitutional jurisprudence by the mechanism of judicial review. Our Constitution is dynamic in nature and with the help of Article 13 various old taboos and stigma from our society got abolished like triple talaq, homosexuality, etc. This Article served as a ground on which the legality of various pre-constitutional and post-constitutional laws are ascertained. The two terms provided under Article 13 namely “inconsistency and contravention” played a vital role in striking off those statutes that are violative of our fundamental rights and enforce the spirit of constitutionalism in the society.