ARTICLE 13 OF THE INDIAN CONSTITUTION

1. INTRODUCTION:

The framers of the Constitution of India adopted and incorporated the fundamental rights
from the American model. Part III of the Indian Constitution contains the Fundamental
Rights that are guaranteed to the citizens. Fundamental Rights are considered to be the very
foundation of a democracy. These rights also reinstate the declaration mentioned in the
Preamble of the Constitution, i.e. India is to be a sovereign, socialist, secular and democratic
republic.1 These rights are sacrosanct and indivisible.

The Constitution of India not only secures these rights, but it also lays down methods for
effective remedies for its enforcement. The enforcement of such fundamental rights in itself
is a fundamental right that is guaranteed to the people. Articles 12 and 13 were incorporated
in order to retain the trust of the citizens in the State. While Article 12 defines what a ‘State’
is, Article 13 states that any law or provision that is inconsistent with the Fundamental Rights
under Part III of the Constitution are to be declared as null and void. Therefore, any action of
the State, either by the executive or legislature will become void if it violates any of the
fundamental rights. This way the Constitution secures the basic rights of an individual.

In the case of I.R. Coelho v. State of Tamil Nadu2, the nine-judge bench of the Supreme Court
held that the fundamental rights were not limited or narrow, instead they provided a broader
check against the infringements by the State authorities. These rights are necessary for
establishing constitutional control over the State, especially the legislative power. They
provide a mechanism to test against the arbitrary use of power by the State.

1
The Constitution of India, 1950, Preamble.
2
AIR 2007 SC 861.
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 2. EXPLAINING ARTICLE 13:

All institutions and branches (legislative, executive and judiciary) created by the Constitution
are subordinate to it. Any law that is contrary to the fundamental rights cannot be enacted or
implemented. In the case of Renu v. District and Sessions Judge3, the court held that the state
authorities have to abide by the constitutional framework and legislative provisions while
exercising their powers.

Article 13 protects the fundamental rights and makes them justiciable. The framers of the
constitution gave immense importance to this particular article. It states that all laws, be it
pre-Constitution or post-Constitution, have to be consistent with the fundamental rights. This
article is protective in nature and prohibits the State from framing laws that go against the
fundamental rights of the citizens. Thus, the effect of the article is that the government cannot
enact any law or conduct any administrative action that would infringe the rights guaranteed
under Part III of the Constitution.

2.1.PRE-CONSTITUTION LAWS:

Article 13(1) deals with pre-Constitution laws i.e., laws that exist before enactment of the
Constitution of India. It states that all pre-Constitution laws are to be declared void to the
extent to which they are violative of the Fundamental Rights. Such laws will become null
from 26 January, 1950, the day of commencement of the Constitution.4 A pre-Constitution
law has to be consistent with the fundamental rights after the commencement of the

3
AIR 2014 SC 2175.
4
MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2019) pg 882.
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Constitution. But, the inconsistency or infringement of the fundamental rights cannot be
merely based on a remote or speculative ground. 5

All the rights under Part III including Article 13(1) are prospective. Therefore, existing laws,
on infringing fundamental rights, become void only after the commencement of the
Constitution. This article does not render all inconsistent existing laws as void ab initio. Thus,
the inconsistency mentioned in the article does not affect any past or already closed
transactions before the commencement of the Constitution or the enforcement of rights and
liabilities that had accrued under the ‘inconsistent laws’ before the commencement of the
Constitution.

This does not mean that an unconstitutional procedure which is pre-Constitution, would be
followed in the pending cases or new proceedings with respect to pre-Constitutional rights or
liabilities. Just like how there aren’t any vested right in any course of procedure, there is no
vested liability where there is a lack of a provision to the contrary. 6
The articles in Part III of the Constitution will not have retrospective effect if the proceedings
are already completed or finalized before the commencement of the Constitution. Similarly, it
is not possible to challenge the validity of a particular part of a proceeding which had taken
place under the impugned law before the commencement of the Constitution.

Kesavananda Bharathi v. State of Kerala7:

In this case it was observed that if all fundamental rights had retrospective application then
all pre-Constitutional laws that are inconsistent with these rights would become void ab
initio. Hence, it was established that, as fundamental rights became operative only on and
from the date of the commencement of the Constitution, the question of inconsistency of the

5
Baldev Singh Gandhi v. State of Punjab, AIR 2002 SC 1124.
6
ibid.
7
AIR 1973 SC 1461.
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existing laws with that of the fundamental rights must necessarily arise only on and from
such date.

The effect of clause one of this article is not to wholly invalidate the inconsistent laws from
statutes for all purposes and persons. The effect is that such laws cannot abridge the
fundamental rights of persons who are entitled to those rights under the Constitution since its
commencement. It does not have an effect on persons who are not entitled to the fundamental
rights, for example- aliens.

2.2. DOCTRINE OF ECLIPSE:

This doctrine states that all laws that infringe the fundamental rights are not rendered void.
Only the parts of the law that are inconsistent are overshadowed by the fundamental rights.
This does not make the law void ab initio, instead it becomes unenforceable. This
inconsistency can be replaced or removed by the higher court which would make the law
consistent. Otherwise, it can also be made valid through an amendment to the respective law
by way of legislation. If the Constitution is amended in order to remove the repugnancy, then
the law becomes void of all inconsistencies from the date that the amendment takes place. 8

Bhikaji Narain Dhakras v. State of MP9:

In this case, section 43 of the Motor Vehicles Act of 1939 was amended through Central
Provinces and Berar Motor Vehicles (Amendment) Act of 1947. Both these legislations were
pre-Constitution. The Provincial Government had the power to take up the Provincial Motor
Transport Business under the Amendment Act. This was violative of Article 19(1)(g) of the
Indian Constitution. The State had the authority to carry business to the notification issued by
the Government to this effect, by way of Constitutional amendment of the said article, which
was challenged in court. The Supreme Court held that the impugned law had become eclipsed

8
Bhikaji Narain Dhakras v. State of MP, AIR 1955 SC 781.
9
ibid.
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or overshadowed by the fundamental right for the time being. The Constitution Act of 1951
was given effect in order to remove the inconsistency and free it from all infirmities or
blemishes.

Pre-Constitution laws are secured under the terms mentioned in Article 372 of the
Constitution. But its validity can be challenged when it abridges any of the fundamental
rights, especially Articles 14, 15 and 19. The validity of such laws are determined by the
current societal conditions within and outside the country, at a particular time period.

2.3.POST-CONSTITUTION LAWS:

Article 13(2) deals with post-Constitution laws, i.e., laws enacted after the commencement of
the Constitution of India. It states that any law made by the legislature or other authorities,
that abridges the fundamental rights under Part III, would become void to the extent of the
inconsistency. Thus, the State cannot make any laws which contravene the rights under Part
III of the constitution after its commencement. Such impugned law becomes void ab initio
from its inception. The article clearly lays down that no action of the State, be it legislative or
administrative, can infringe the Fundamental Rights of the people. 10

Clause 2 of this article renders impugned laws to be void ab initio and even the convictions
that are made under such laws are to be set aside. Any unconstitutional law, whether closed,
complete or inchoate, becomes illegal11. Such laws cannot be revived by any subsequent
action. This does not erase the inconsistent law from the statute wholly. The law operates for
individuals who are unqualified to claim the fundamental right in question, for example a
non-citizen does not have the rights guaranteed to an Indian citizen under Article 19. Article
13(2) does not empower the judicial courts to intervene in the process of passing of bills on
the speculation that the enactment of such provisions would contravene with the Constitution.
The Courts have jurisdiction only when the bill is passed and formally enacted into law.

10
MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2019) pg 882.
11
Keshavan Madhava Menon v. State of Bombay, 1951 SCR 228.
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2.4. DOCTRINE OF SEVERABILITY:

According to Article 13, the impugned law as a whole does not become invalid, it becomes
void only to the extent of the inconsistency. For this, the part that infringes the fundamental
rights have to be able to be separated from the part which is not violative of those rights. The
court can declare the whole Act to be void if isolating the violative parts would either result
in:

a. the whole law being invalid, or

This is the doctrine of severability. It is also called the doctrine of separability or reparability.

A.K. Gopalan v. State of Madras12:

The Supreme Court held that only the repugnant provision of the Act in question can be
rendered as void, not the impugned Act as a whole. Maximum efforts must be made to save
as much of the Act as possible. A part can be severed if it does not change the nature or the
objective of the Act. In this particular case, the court had held that only section 14 of the
Preventive Detention Act, 1950 was void. All other sections were held to be valid. Therefore,
the detention of a person was not illegal as section 14 could be severed from the rest of the
Act.

State of Bombay v. F.N. Balsara13:

In this case, the Supreme court declared the eight sections of the Bombay Prohibition Act,
1949 to be invalid as it contravened with the fundamental rights under the Indian
Constitution. The Court said that the part which was invalid could be separated from the rest
of the Act and hence the whole act was not declared to be void.

12
AIR 1950 SC 27.
13
AIR 1951 SC 318.
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In the case of D.S. Nakara v. Union of India14, the court held the Act to be valid as the invalid
part could be severed from the rest of the Act.

R.M.D.C. v. Union of India15:

This is a landmark judgement where the Supreme Court closely observed the doctrine of
severability and laid down certain rules regarding the question of severability:

a. The intention of the legislature has to be considered in order to determine whether the
invalid part of a statute could be separated from the valid parts. Thus, the test is to
check whether the legislature would have enacted the valid part of the statute if they
were aware that the rest of the statute was invalid.
b. In case the valid and invalid parts are inextricably mixed up with each other that the
invalid portion cannot be severed from the rest of the statute, it can be inferred that
the invalidity of that portion is a result of the invalidity of the statute in its entirety. In
other cases where the two parts are distinct and can be separated easily, the valid
portion of the statute becomes complete and independent from the rest, and therefore,
will be upheld.
c. The invalidity of a portion of a statute would result in the invalidity of the entire
statute if the invalid part, despite being separable and distinct, forms a single scheme
along with the valid parts which is intended to be operative as a whole.
d. When the valid and invalid parts are separable and distinct and do not form a single
scheme together, but if the part left after separation is so thin and truncated that it
differs from what it would have emerged from the legislature as, then also the whole
act if rendered void.
e. The severability of the valid and invalid portions does not rely on whether the law is
in the same or different sections of the statute.the severability does not relies on the
substance of the matter rather than the form.

14
AIR 1983 SC 130.
15
AIR 1957 S.C. 628.
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 f. The statute has to be altered and modified even after severing the invalid portion so as
to become enforceable. Otherwise the stature will be rendered as void.
g. On the question of severability, the history and object of the statute along with its tile
and preamble have to be checked in order to determine the intention of the legislative.

4. DEFINING LAW:

Article 13(3)(a) defines the term ‘law’. As per the definition, law includes the following:

a. Laws enacted by the legislature.

5. APPLICATION OF ARTICLE 13 TO LAWS

Article 13(4) was added by the Constitution (24th Amendment) Act, 1971. This was enacted
to override the view of Chief justice Subha Rao in the case of Golak Nath v. State of
Punjab16, which said that an Amendment Act passed under Article 368 constitutes as ‘law’
under Article 13 and can therefore, be declared as void if it abridges any fundamental rights
under Part III of the Constitution. But this amendment was rendered as void in the case of
Minerva Mills v. Union of India17.

6. JUDICIAL REVIEW UNDER ARTICLE 13:

Article 13 makes the judiciary, especially the Supreme Court, as the interpreter and guardian
of fundamental rights. It is the duty of the court to look into individual laws and interpret the
fundamental rights to ensure that no law infringes any of these rights guaranteed by the
Constitution. Thus, Article 13 imposes the duty on the courts to declare a law as

16
AIR 1967 SC 1643.
17
(1980) 3 SCC 625.
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unconstitutional if it contravenes with the fundamental rights. The court plays a protective
role towards these rights and prevents any violation of such rights by other statutes.

This power is of great consequence for the judiciary. The Apex Court has symbolically
referred to this role of the courts as a “sentinel on the qui vive”. 18 As the courts are aware of
their responsibilities, they do not lightly declare the laws enacted by a democratic legislature
as void. There aren't many statutes that have been in conflict with fundamental rights. There
is a greater need for the judicial review of administrative actions more than that of legislative
actions. The extended and broader view of Article 21 and other articles deeply affects
administrative actions.

As per the Constitution, it is the duty of the State to ensure that the fundamental rights of the
people are protected and are not infringed by its actions. Article 13(2) infers that judicial
review is a ‘basic’ feature of the Indian Constitution i.e., the power of judicial review cannot
be revoked by any amendments made to the Constitution. Judicial review is a part of the
Doctrine of Basic Structure. The protection of power of judicial review is very much crucial
for the protection of fundamental rights. If the Supreme Court and other higher courts are
divested of this power, then the fundamental rights become unenforceable. They become
mere adornments as there will be rights without any remedies. 19

Justice Khanna had made the following observation in the case of Kesavananda v. State of
Kerala:

“ As long as some Fundamental Rights exist and are a part of the Constitution, the power of
judicial review has also to be exercised with a view to see that the guarantees afforded by
those rights are not contravened … Judicial review has thus become an integral part of our
constitutional system.”20

Similarly in the case of Minerva Mills v. Union of India, Chandrachud CJ mentioned the
following:

18
MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2019) pg 883.
19
ibid.
20
AIR 1973 SC 1461.
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“ It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If
courts are totally deprived of that power, the fundamental rights conferred on the people will
become a mere adornment because rights without remedies are as writ in water. A controlled
Constitution will then become uncontrolled.21”

7. CONCLUSION:
The fundamental rights under Part III of the India Constitution forms an integral part of the
conscience of the Constitution. It can be inferred that the framers of the constitution intended
for these rights to pay way for a new constitutional culture. The Constitution empowers the
State to safeguard the fundamental rights and to prevent from taking any action that could
violate the rights of individuals. Article 13 of the Indian Constitution allows the acts of the
State to be regulated so as to prevent it from misusing its powers given to it by the
Constitution. It states that the acts of the state, pre-Constitution and post-Constitution, are to
be invalidated to the extent that they abridge any of the fundamental rights of the people. The
article defines the term ‘law’. This article is also one of the most important provisions that
establishes the power of the judiciary to review certain actions of the State and decide
whether or not they are constitutional.

21
(1980) 3 SCC 625.
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