Article 13 of Indian Constitution

Article 13 of the Indian Constitution

Article 13 : Laws inconsistent with or in derogation of the Fundamental Rights

Part III of Indian Constitution deals with Fundamental Rights. Articles 12-35 of Indian Constitution provide fundamental rights. This part of Indian Constitution is also known as Magna Carta of India.

Article 13(1) of Indian Constitution provides "All laws in force in 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.

Thus, Article 13(1) of Indian Constitution deals with pre- constitutional laws only.

Article 13(1) is not retrospective in effect. 

Article 13(1) is prospective in nature. It provides that all pre- constitutional laws inconsistent with fundamental rights will become void only after the commencement of this Constitution. They are not void ab initio.

Case- Keshava Madhav Menon vs State of Bombay, 1951 SC

Held- SC observed, "there is no fundamental right that a person shall be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past Act are concerned the law exists notwithstanding that it does not exist with respect to the future exercise of the Fundamental rights."

Article 13(2) provides," 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.

Article 13(3): (a)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; 

(b) 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

Article 13(4): Nothing in this article shall apply to any amendment of this Constitution made under Article 368. (Inserted by the Constitution (Twenty-fourth Amendment) Act, 1971,) 

Objective of Article 13- 

The main objective of Article 13 is to secure the paramountcy of the Constitution especially with regard to fundamental rights. 

Power of Judicial Review 

Article 13 in fact provides for the 'judicial review' of all legislation in India, past as well as future. This power has been conferred on the High Courts and Supreme Court of India (Article 226 and Article 32 respectively) which can declare a law unconstitutional if it is inconsistent with any provision of Part III of the Constitution. 

Doctrine of Eclipse-

The doctrine of eclipse is based on the principle that which violates fundamental rights is not nullity or void ab initio but becomes only unenforceable, i.e. remains in a moribund condition. "It is over-shadowed by the fundamental rights and remains dormant; but it is not dead." 

Can such a law, which becomes unenforceable after the Constitution came into force, be revived and made effective by an amendment in the Constitution? 

Case- Bhikaji vs State of MP, 1955 SC

Related with CP and Berar Motor Vehicles (Amendment) Act, 1947.

Held- Sc held that 'the effect of Amendment was to remove the shadow and to make the the impugned Act free from all blemishes and infirmity'. 

Does the Doctrine of Eclipse apply to a post- constitutional laws? 

Case- Deep Chand vs State of UP, 1959 SC

Held- SC held that a post- constitutional law made under Article 13(2) which contravenes a fundamental right is nullity from its inception and a still-born law. It is void ab initio. The doctrine of eclipse does not apply to post-constitutional law. 

Case- Mahendra Lal Jain vs State of UP, 1963 SC

Held- SC approved the majority view expressed in Deep Chand's case and held that the doctrine of eclipse applies only to pre- constitutional law under Article 13(1), not to post- constitutional laws under Article 13(2). 

Case- State of Gujarat vs Ambica Mills, 1974 SC

Held- A post Constitutional Constitutional law which is inconsistent with Fundamental Rights is not nullity or non-existent in all cases and for all purposes. Thus, Doctrine of Eclipse applies to post - constitutional laws also.  

e. g. Post-constitutional law violative of Article 19 to remain operative to non-citizens. 

Is doctrine of eclipse applicable to non-citizens only in post-constitutional laws? 

Case- State of Gujarat vs Ambica Mills, 1974 SC

Held- Doctrine of Eclipse is applicable against non- citizens only, in post-constitutional law. 

Case- Dulare Lodh vs III ADJ Kanpur, 1984 SC

Held- SC applied the Doctrine of Eclipse to post-constitutional law even against citizens. 

Doctrine of Severability - 

This doctrine means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void and not the entire statute. 

Case- AK Gopalan vs State of Madras, 1950 SC

Held- SC while declaring Section 14 of Preventive Detention Act, 1950 as ultra vires observed, "the ommission of the Section will not change the nature or structure of the subject of the legislation. Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act. 

Case- State of Bombay vs Balsara, 1951 SC

Held- A case under Bombay Prohibition Act, 1949, it was held that the provisions which have been declared as void don't affect the entire statute, therefore there is no necessity for declaring the statute as invalid. 

Case-RMDC vs Union of India, 1957 SC

Held- When after removing the invalid portion what remains is a complete Code then there is no necessity to declare the whole Code void. 

The intention of Legislature is the determining factor. The test to be applied is whether the Legislature would have enacted the valid part if it had known that the rest of statute was invalid. 

Doctrine of waiver

Can a citizen waive his/her fundamental right? 

The doctrine of waiver has no application to the provision of law enshrined in Part III of the Constitution. No citizen can waive his fundamental rights because these rights have been put in the Constitution not merely for the benefit of the individual but as a matter of public policy for the benefit of the general public. It is an obligation upon the State by the Constitution. 

Case- Behram vs State of Bombay, 1955 SC

Held- It is not open to an accused person to waive or give uphis constitutional rights and get convicted. 

                                    - Anjali Singh&                                                      Deepak Kumar                                           (University of Allahabad)