Art 13

Preconstitutional Law
IPC - 1860
Evidence Act 1882
Contract Act 1872
Transfer of Property Act 1882
Post constitutional Law
Right to Information Act 2005
Article 13 in The Constitution Of India 1949
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 the force of law
in the territory of India
(4) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368
Judicial Review.— Article 13 in fact provides for the ‘judicial review’ of all
legislations in India, past as well as future. .This power has been conferred on
the High Courts 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.(Fundamental Rights)
Article 13 not retrospective in effect.— Article 13 (1) is prospective in nature.

All pre-Coostitutional laws inconsistent with a Fundamental Right will
become void only after the commencement of the Constitution, if they are
going to breach Fundamental Rights. Such inconsistent law is not wiped out
for the past offences are concerned. The Supreme Court in Keshava Madhav
Menon v. State of Bombay observed : In this case, a prosecution proceeding
was started against the petitioner under the Press (Emergency Powers) Act,
1931 in respect of a pamphlet published in 1949. The present Constitution
came into force during the pendency of the proceeding in the court. The
appellant contended that the Press Act 1931 was inconsistent with the
Fundamental Right conferred by Art. 19 (1) (a) of the Constitution hence void,
and the proceeding against him could not be continued. The Supreme Court
held that Art. 13 (1) could not apply to his case as the offence was committed
before the present Constitution came into force and therefore the proceedings
started against him in 1949 would be continued. The Supreme Court held that
“As the Fundamental Rights became operative only on and from the date of
the commencement of the Constitution.
Doctrine of Severability or Separability. — When a part of the statute is
declared unconstitutional then a question arises whether the whole of the
statute is to be declared void or only that part which is unconstitutional should
be declared as such. To resolve this problem the Supreme Court has devised
the doctrine of severability or separability. 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.
Article 13 of the Constitution uses the words "to the extent of such
inconsistency be void” which bymeans that when some provision of the law is
held to be unconstitutional then only that unconstitutional provisions of the
law in question shall be treated by courts as void and not the whole statute.
The doctrine of severability was elaborately considered in R. M. D. C. v.

Union of India.AIR 1957 Where Sec. 2 (d) of the Prize .Competitions Act,-
which was broad enough to include competitions of a gambling nature as well
as competitions involving skill, was involved.- The Supreme Court held that
the provisions of the Act were severable and struck down the provisions of
competitions of a gambling
Doctrine of Eclipse.—
The doctrine of eclipse is based on the principle
that a law 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”. Such laws are not wiped out entirely from the statute book. They exist
for all past transactions, before the present Constitution came into force and
for determination of rights of persons who have not been given fundamental
rights by the Constitution, e. g. non-citizens . It is only as against the citizens
that they remained in a dormant or moribund condition but they remain in
operation as against non-citizens who are not entitled to fundamental
rights.
The Supreme Court formulated the doctrine or eclipse in Bhikaji v. State of MP

AIR 1955 In that case a provision of C. P. and Berar Motor Vehicle
(Amendment) Act, 1947, authorised the State Government to take up the entire
motor transport business in the Province to the exclusion of motor transport
operators.( monopoly of government was recognised by this Act) This provision,
though valid when enacted, became void on the coming into force of the
Constitution in 1950, as they violated Art. 19 (1).(g) of the Constitution.(to
practice any profession, or to carry on any occupation, trade or business)
However, in 1951, Clause (6) of Art. 19 was amended by the Constitution (First
Amendment) Act, so as to authorise the Government to monopolise any
business. After Amendment the shadow(Inconsistency brought by Fundamental
right) was removed and C. P. and Berar Motor Vehicle (Amendment) Act, 1947
became live and operative against citizens as well as non-citizens. This law was
merely eclipsed for the time being by the fundamental rights. As soon as the
eclipse is removed the law begins to operate from the date of such Removal.
Doctrine of Waiver.— Can a citizen waive his fundamental right ? The

doctrine of waiver can have no application to the provisions of law enshrined
in Part III (Fundamental Rights )of the Constitution. It is not open to an
accused person to waive or give up his constitutional rights and get convicted.
The question of waiver directly arose in Bashesher Nath v. Income Tax
Commissioner.AIR 1959. The petitioner whose case was referred to the

Income-tax Investigation Commission under section 5 (1) of the Taxation of
Income (Investigation Commission Act, was found to have concealed a large
amount of income. He, thereupon, agreed at a settlement in 1954 to pay Rs. 3
lakhs in monthly instalments by way of arrears of tax and penalty. In 1955 the
Supreme Court in Muthiah v. I. T. Commissioner, A- I. R- 1956 held that
section 5 (1) of the Taxation of Income (Investigation Commission) Act
1947 was ultra vires of Art. 14. The petitioner then challenged the settlement
between him and the Income Tax Investigation Commission. The respondent
contended that even if section 5 (1) was invalid, the petitioner by entering into
an agreement to pay the tax had waived his fundamental right guaranteed
under Art. 14. The majority expressed the view that the doctrine of waiver as
formulated by some American Judges in interpreting the American
Constitution cannot be applied in interpreting the Indian Constitution. ' The
Court held that it is not open to a citizen to waive any of the fundamental
rights conferred by Part III of the Constitution. 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 benfit of the general public. It is an obligation imposed
upon the State by the Constitution. A large majority of our people are
economically poor, educationally backward and politically not yet conscious
of their rights. In such circumstances, it is the duty of this Court to protect
their rights
Amenability of Indian Constitution and Saving of certain laws

Every Constitution has some method of amendment whereby a provision is modified by way of
addition, deletion or correction so as to suit the needs of the present era
Is constitutional amendment a ‘law’ under Article 13 (2) ?— The question
whether the word ‘law’ in clause (2) of Art. 13 also includes a 'constitutional
amendment’ was for the first time considered by the Supreme Court in
Shankari Prasad v. The Union of India AIR 1951. The Court held that the
word ‘law’ in chase (2) did not include amendment made by Parliament under
Art. 368. The word 'law’ in Art. 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. Art. 13
(2) does not affect amendments made under Art. 368. This interpretation of the
Shankari Prasad's case was followed by the majority in Sajjan
Singh v. State of Rajasthan AIR 1965. But in Golak Nath v.State of Punjab
AIR1967, 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.
The Constitution (24th Amendment) Act, 1971. — 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 (clause 4) was added to Art. 13 of the Constitution which provides
that “Nothing in this Article shall apply to any amendment of this

Constitution made under Art. 368.” In other words, constitutional
amendments passed under Art. 368 shall not be considered as ‘Law’ within the
meaning of Art. 13 and therefore, cannot be challenged as infringing
provisions of Part III of the Constitution.” The validity of the Constitution
(24th Amendment) Act, 1971, has been upheld by the Supreme Court in the
Fundamental Right's case.’(Kesavananda Bharti Case AIR 1973. The Court
overruled the Golak Nath case and upheld the validity of said amendment.
Basic Structure:
The Theory of basic structure very effectively proved to be a limitation on the amending power of the
Parliament. The Basic Structure doctrine applies only to the Constitutionality of amendments Chief
Justice Sikri indicated that Basic structure is:
1. The supremacy of Constitution
2. The republican and democratic forms of government
3. The secular character of Constitution
4. Maintenance of separation of power
5. The federal character of the Constitution
Justices Shelat and Grover added another three:

1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country'
Justices Hegde and Mukherjea listed the following:

1. The Sovereignty of India
2. The unity of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare state
Justice Jaganmohan Reddy referred the Preamble only:

1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship
4. Equality of status and opportunity

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Preconstitutional Law

Evidence Act 1882

Contract Act 1872

Transfer of Property Act 1882

Post constitutional Law

Right to Information Act 2005

Article 13 in The Constitution Of India 1949

13. Laws inconsistent with or in derogation of the fundamental rights

Article 13 not retrospective in effect.— Article 13 (1) is prospective in nature.

The doctrine of severability was elaborately considered in R. M. D. C. v.

over-shadowed by the fundamental rights and remains dormant, but it is not

The Supreme Court formulated the doctrine or eclipse in Bhikaji v. State of MP

Doctrine of Waiver.— Can a citizen waive his fundamental right ? The

The question of waiver directly arose in Bashesher Nath v. Income Tax

Commissioner.AIR 1959. The petitioner whose case was referred to the

Amenability of Indian Constitution and Saving of certain laws

Is constitutional amendment a ‘law’ under Article 13 (2) ?— The question

The Constitution (24th Amendment) Act, 1971. — In ‘order to remove the

that “Nothing in this Article shall apply to any amendment of this

Justice Sikri indicated that Basic structure is:

1. The supremacy of Constitution

2. The republican and democratic forms of government

3. The secular character of Constitution

4. Maintenance of separation of power

5. The federal character of the Constitution

Justices Shelat and Grover added another three:

2. Maintenance of the unity and integrity of India

3. The sovereignty of the country'

Justices Hegde and Mukherjea listed the following:

2. The unity of the country

3. The democratic character of the polity

4. Essential features of individual freedoms

5. The mandate to build a welfare state

Justice Jaganmohan Reddy referred the Preamble only:

3. Liberty of thought, expression, belief, faith and worship

4. Equality of status and opportunity

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