CHAPTER 5-ARTICLE 13

Article 13 declares that :-

“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,-
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” includes laws passed or made by a 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this Constitution and not previously repealed, notwithstanding that any such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.”

 Article 13 expressly lays down the supremacy of the Fundamental

Rights over any other law if there is any inconsistency between the
two.
 It prevents the legislature from making any law in contravention of
Part III of the Constitution i.e, the Fundamental Rights.
 Article 13 also gives the power to declare any pre-constitutional law
which is inconsistent with the Fundamental Rights as void to the extent
of its inconsistency. It thus helps review the pre constitutional law as
well as the existing laws, thereby paving the way for judicial review.

CLAUSE TO CLAUSE EXPLANATION

Article 13 of the Indian Constitution has four clauses.

1) Clause (1) of Article 13 deals with the pre constitutional law while
clause (2) with the post constitutional law.As per clause (1) any law
that had been in force in the country before the commencement of the
constitution if found to be inconsistent with the fundamental rights,
would be declared void to the extent of its inconsistency. It is
important to mention here that such laws become void only when so
declared by the courts and not before that.

 Article 13(1) is prospective in nature. All pre-constitutional laws

inconsistent with fundamental rights will become void only after the
commencement of the Constitution. They are not void Ab initio. Such
inconsistent law is not wiped out so far as the past acts are concerned.

In Keshavan Madhava Menon v. State of Bombay, proceedings

had been initiated against the appellant for an offence that was
punishable under Section 18 of the Press (Emergency Powers) Act,
1931. It was contended on behalf of the appellant that the impugned
act was inconsistent with the fundamental rights guaranteed by the
constitution, therefore it has become void and hence the proceedings
against him cannot be continued further. But, the court rejected his
contention and held that the article does not have retrospective effect
and it cannot render such laws that has now become inconsistent with
the fundamental rights, void ab initio for all purposes.
 A discriminatory procedure laid down by a pre-constitution act cannot
be followed in respect of pending proceedings or in respect of new
proceedings started in respect of pre-constitution rights or liabilities.
 Though the substantive rights and liabilities acquired or accrued before
the date of the constitution remain enforceable nobody can claim his
rights and liabilities to be enforced under a particular procedure which
becomes inconsistent with fundamental rights

2) Clause (2) of Article 13 relates to post constitutional laws i.e., those

laws that were made after the commencement of the constitution. As
per this clause, the state cannot make any law that abridges or takes
away the fundamental right of a person and if it does so, then such
law would be be void to the extent of its contravention.
 3) Clause (3) of article 13 defines the term “law” and “laws in force”.
The definition includes statutory laws that may be made either directly
by the legislature or by the subordinate authorities in exercise of their
delegated legislative powers. Such laws made under delegated
legislation include rules, notifications , orders, regulations and bye-
laws as mentioned under this clause and other such laws. Apart from
this, administrative orders of the executive, made in pursuance of
statutory authority, if affect the legal rights of the citizens, would very
much fall within the meaning of “law” under this section. But, if such
administrative instructions are made for the purpose of guiding its
officers and are not enforceable, then it would not come under the
definition of “law”. It must also be noted that the term “law” do
includes “custom” and “usage” having the force of law but the personal
laws such as the Hindu Law and Mohammedan Law are not included
within the meaning of this expression.

’Laws in force’ denote all prior and existing laws passed by the
legislature or other competent authority which have not been repealed
notwithstanding the fact that they are not in operation wholly or in
part throughout India or part thereof.

4) Clause (4) of Article 13 states that “nothing in this article shall

apply to any amendment of this constitution made under Article 368”.
It means that the amendments made by the parliament would not
come within the definition of law under this section.

In Shankari Prasad Deo v. Union of India, when the Constitution (1st

Amendment) Act, 1951 was challenged on the ground that it had the effect
of abridging fundamental rights, and hence is not a valid law, the Supreme
Court rejected this contention and held that the term “law” under Article
13(2) does not include amendments made by the parliament.

The same interpretation was followed by the court in the case of Sajjan
Singh v. State of Rajasthan.

However, in Golak Nath v. State of Punjab, the Supreme Court by a

majority of 6:5 held that the term “law” do includes amendments to the
constitution and if any amendment abridges the fundamental rights, then it
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 inserted a clause (4) in 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.

Finally, in Kesavananda Bharati v. State of Kerala, the Supreme Court

overruled the Golak Nath case and held the Constitution (24th Amendment)
Act, 1971, that inserted clause (4) in Article 13 and clause (3) in Article 368
valid. However, the court by a majority of 7:6 held that though the
amendments are not included within the definition of law under Article
13(4), but they should not alter the basic structure of the
constitution. So, if an amendment by violating the fundamental rights,
violates the basic structure of the constitution, then such law cannot be
exempted from being invalidated.

DOCTRINES
The important doctrines evolved by the courts under Article 13 of the
Constitution are as follows :

Doctrine of Severability
It must be observed that Article 13 does not make entire act inoperative, but
only that part is held inoperative which is inconsistent with the fundamental
rights.
Doctrine of severability says that when some provisions of an act are
inconsistent with the fundamental rights and if such provisions can be
severed from the rest of the statute, then only the offending provision would
be declared void by the court and not the entire act.
In State of Bombay v. F.N. Balsara, some provisions of the Bombay
Prohibition Act, 1949 were held ultra vires, but the rest of the act was
allowed to stand. The court held that “ The decision declaring some of the
provisions of the act to be invalid does not affect the validity of the act as it
remains.”
The court laid down the following rules for determining whether the statute
can stand by severing the invalid portion or not :
1. The intention of the legislature behind enacting the act helps in
determining whether the violative provision can be severed or
not.
2. If the valid and invalid portions are so intertwined that they
cannot be separated from one another, then the invalidity of
some portion of the statute will render the entire statute invalid.
So, it can be concluded that if the inconsistent part of a statute can be
severed in a way that the consistent part can exist independently, the
doctrine of severability can be applied to such statutes.

In A.K.Gopalan v State of Madras, the Supreme Court while declaring

Section 14 of the Preventive Detention Act 1950 as ultra virus
observed :”the impugned act minus this section can remain unaffected ,the
omission of this section will not change the nature or the structure of the
subject of the legislation. Therefore the decision that section 14 is ultra virus
does not affect the validity of the rest of the Act.
Other important cases:-
 Romesh Thappar v State of Madras.
 R.M.D.C V UOI.
 Kihoto hollohan v Zachillu

Doctrine of Eclipse
The doctrine of eclipse says that any existing law which is inconsistent with
the fundamental rights is not completely invalid, but is overshadowed by the
fundamental rights and remain dormant but not dead. It would be valid if a
question arises for determining the rights and obligations that would have
incurred before the commencement of the constitution and also for those
persons who have not been given the fundamental rights. Till the time, the
law violates the fundamental right, it remains dormant, but if by an
amendment such law no more violates the fundamental rights, then the law
becomes alive and operative. This is the principle of doctrine of eclipse and
has been elaborated by the courts in various judgements.
In the case of Bhikaji Narayan Dhakras v. State of M.P., the issue before
the court was that if an existing act has become inconsistent with the
fundamental rights on commencement of the constitution, then can it
become valid again if there comes any amendment which removes such
inconsistency. The court held that the effect of the amendment is that it
removes the shadow and makes the impugned act free from inconsistency.
The law therefore becomes valid after the constitutional impediment is
removed.

The doctrine of eclipse is applicable on just pre constitutional law and not to
Post Constitutional laws. DEEP CHAND V. STATE OF UTTAR PRADESH
It was ruled out that only the pre-constitutional law can be brought to life
whereas the post-constitutional law which infringes fundamental right is void
from its dawn.
But now it can also be extended to even post constitutional law to some
extent as laid down in State of Gujrat v. Ambica Mills Ltd.(non – citizens)

Doctrine of waiver:-
It is important to mention that the doctrine of waiver does not apply to the
fundamental rights and such rights cannot be waived off by any person.
This was clearly held by the court in Basheshar Nath v. CIT. in this case
the issue before the court was that can a fundamental right be waived by a
person who has it. The court in this case held that it not open to any citizen
to waive off any of the fundamental rights that are conferred on them by
Part III of the Constitution.
It has been clarified by the Supreme Court that fundamental rights of the
people are those rights cannot be waived off. Any action of any person that
shows voluntarily giving up one’s fundamental right cannot be considered
valid. Fundamental rights cannot be waived off under any circumstance.

Doctrine of Lifting the veil:-

To test of constitutional validity of the Act, on the alleged violation of
fundamental rights, it is necessary to ascertain its true nature and character
and impact of the Act, for which the court may take into consideration all
factors such as history of the legislation, the purpose thereof, the
surrounding circumstances and conditions, the mischief which it intended to
suppress ,the remedy for the disease which the legislature resolved to cure
and the true reason for the remedy
Presumption :-It must be noted that the laws made by the legislature are
always presumed to be constitutional and that they are not violative of the
fundamental rights. Therefore, if any person claims that a particular law is
violative of the fundamental rights, then that person will have to prove and
satisfy the court that the law is in abrogation of the fundamental rights.