ART 13

Article 13 provides teeth to the fundamental rights. It makes these rights justiciable. Article 13
confers a power as well as imposes an obligation on the courts to declare a law void if it is
inconsistent with a Fundamental Right. The Supreme Court has figuratively characterised this role of
the courts as that of a “sentinel on the qui vive”.

Article 13, in fact provides for judicial review of all laws whether past or future.

SCOPE OF LAW: Article 13(1) declares that all pre-Constitution laws shall be void to the extent of
their inconsistency with the Fundamental Rights.

According to Art. 13(2), the State ‘shall not make any law’ which takes away or abridges the
Fundamental Rights; and a law contravening a Fundamental Right is, to the extent of the
contravention, void. If any such law violates any Fundamental Right it becomes void ab initio, i.e.,
from its inception.

Art. 13(3) tells what is law and what all can be law. Law includes any ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India the force of law.

FUNDAMENTAL RIGHTS ARE PROSPECTIVE IN CHARACTER:

FRs are secured by the constitution when constitution came into force. Thus, no fundamental rights
were available before such commencement. It follows that as regards the acts done or transactions
completed before the commencement, fundamental rights can’t be invoked and their validity can’t
be determined at the touchstone of the FRs, but according to the laws which were in force at the
time if the commission of the acts or completion of the transactions.

The effect of the commencement of constitution on pre-constitution laws is that those laws, if
inconsistent with any FR shall become void prospectively. Hence FR are prospective in character.

In Keshavan Madhava Menon v. State of Bombay, a prosecution proceeding was started against the
petitioner under the Press (Emergency Powers) Act, 1931 in respect of pamphlet published in 1949.
The present constitution came into force during the pendency of the proceedings. The appellant
contended that the Act was inconsistent with the Article 19(1)(a) and thereby void. The SC held that
Article 13(1) couldn’t apply to that case as the offence was permitted before the commencement of
constitution and proceedings against the petitioner instituted in 1949, weren’t affected.

SC held that, FR become operative only on and from the date of constitution, the question of the
inconsistency of the existing laws with those rights must arise from the date those rights came into
being.

DOCTRINE OF SEVERABILITY:

Clause (1) and (2) of Article 13 thus declare that laws inconsistent with or in contravention of the FR,
shall be void to the extent of inconsistency or contravention, as the case may be.

It means that, where only a part of the law is inconsistent with or contravenes the FR, it is only that
part which shall be void under Article 13 and not whole law. The courts apply the doctrine of
severability to separate the valid portion of the law from invalid portion.

In R.M.D.C v. UOI, the Prize Competitions Act was challenged stating it to be violative of Art. 19(1)(g)
Sec 2 (d) of the act was broad enough to include competitions of a gambling nature as well as those
involving skill. Under Art. 19(1)(g), Parliament could restrict prize competitions only of a gambling
nature but not those involving skill. Holding that the application of the Act could be restricted to the
former, the Court stated that Parliament would have still enacted the law to regulate competitions
of gambling nature; nor did restricting the Act to this kind of competitions affect its texture or
colour. The provisions of the Act were thus held severable in their application to competitions, in
which, success did not depend, to any substantial extent on skill. The court held that when a Statute,
was in part, valid, it would be enforced as regards the rest, if that part was severable from what was
invalid.

In F.N. Balsara v State of Bombay, under the Bombay Prohibition Act, 1949, the use of the
substances containing alcohol was prohibited whether it was full alcohol or contained little
quantities of alcohol. The same was challenged by petitioner. Court held that ban on the full alcohol
products was justified while the ones containing lesser quantities of alcohol weren’t covered under
this act.

In A.K. Gopalan v State of Madras, it was found that Sec 14 of the preventive detention act was
violating Art 14 of the constitution so it was made void but the other parts of the act were separable
while still active and operative.

The Supreme Court has laid down the following propositions as regards the doctrine of severability:

(1) The intention of the Legislature is the determining factor in determining whether the valid parts
of a statute are separable from the invalid parts. The test is whether the Legislature would have
enacted the valid parts had it known that the rest of the statute was invalid.19 “The test of
severability requires the Court to ascertain whether the legislature would at all have enacted the law
if severed part was not the part of the law. n determining the legislative intent on the question of
severability, it will be legitimate to take into account the history of the legislation, its object, the title
and the preamble to it.

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from
one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety.

(3) If the valid and invalid provisions are so distinct and separate that after striking out what is
invalid, what survives can stand independently and is workable—the portion which remains is in
itself a complete code independent of the rest, then it will be enforceable.

4) Even when the valid provisions are distinct and separate from the invalid provisions, but if they all
form part of a single scheme which is intended to operate as a whole, then the invalidity of a part
will result in the failure of the whole.

(5) Likewise, though the valid and invalid parts of a statute are independent and may not form part
of a scheme, but what is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of the legislature, then also it will be
rejected in its entirety.

(6) If after the invalid portion is expunged from the statute, what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck down as
void. The reason is that a Court cannot make alterations or modifications in the law in order to
enforce what remains of it after expunging its invalid portion; otherwise, it would amount to judicial
legislation.
(7) The severability of the valid and invalid provisions of a statute does not depend on whether the
provisions are enacted in the same section or different sections; it is not the form, but the substance
of the matter that is material

DOCTRINE OF ECLIPSE

The only effect of Art 13(1) on the inconsistent law was that, qua persons entitled to the
fundamental right, the law became ineffective or inoperative for the time being. The law got into a
dormant or moribund state or that it was shadowed by the fundamental right it violated, or that it
was so eclipsed.

Therefore, if by an amendment of the fundamental right, enacted subsequent to the

commencement of the constitution, the shadow cast on that law was removed, the law would get
revived and operative. To achieve this effect, courts apply the doctrine of eclipse.

 The doctrine of eclipse has been held to apply only to the pre-Constitution and not to the post-
Constitution laws. The reason is that while a pre-Constitution law was valid when enacted and,
therefore, was not void ab initio, but its voidity supervened when the Constitution came into
force, a post-Constitution law infringing a Fundamental Right is unconstitutional and a nullity
from its very inception. Therefore, it cannot be vitalised by a subsequent amendment of the
Constitution removing the infirmity in the way of passing the law.
 In case the law contravenes a Fundamental Right limited to the citizens only, it will operate with
respect to the non-citizens, but it will not be revived quacitizens merely by the amendment of
the Fundamental Right involved.

In Bhikaji Narayan v State of M.P., a provision of C.P. and Berar Motor Vehicle (Amendment) Act,
1947, authorised the state govt. to take up the entire motor transport business in the province to
the exclusion of motor transport operations. This provision, though valid when enacted, became
void on the coming into the force of the constitution in 1950, as they violated Art 19(1)(g). However,
in 1951, Clause 6 of the art 19 was amended by the Constitutional (1 st Amendment) Act, so as to
authorise the govt. to monopolise any business. SC held that the effect of the amendment was to
remove the shadow and to make the impugned act free from all blemish or infirmity. Then, it
becomes enforceable against citizens as well as non-citizens after the constitutional impediment is
removed.

Doctrine of eclipse and post-constitution laws

In Saghir Ahmed v State of U.P., UP Road Transport Service Act, 1951 empowered state govt. to run
the road transport services exclusively. The Act was challenged on the ground to be violative of Art
19(1)(g) and hence void under Art 19. The court held that since the act was passed prior to the 1 st
constitution amendment act, its validity couldn’t be decided by applying the new clause introduced
under it. This act was declared invalid and void ab initio.

In Deep Chand v State of U.P., SC distinguished between the Clause (1) and (2) of Art 1. The court
held that while under Clause 1, a pre-constitution law subsisted except to the extent of its
inconsistency with the provision of Part 3, no post-constitution law could be made contravening the
provisions of part 3 and therefore the law, to the extent of the contravention, would be nullity, from
its inception.
In State of Gujarat v Sri Ambika Mills, the SC made it clear that a post-constitution law, if infringed
the FR of citizens only, would be void qua citizens only and the non-citizens would not be allowed to
plead that the law was absolutely null and void and inapplicable to them simply because it was
inconsistent with some of the fundamental rights of the citizens. The court explained that voidness
of the law under the clauses 1 and 2 of Art 13 wasn’t voidness in rem but to the extent of
inconsistency or contravention of the rights conferred.

Today, the position of Deep Chand is followed.

DEFINITIONS OF THE TERMS LAW/LAW IN FORCE

The following have been held to be ‘law’ under Art. 13(3), the validity of which can be tested on the
touchstone of Fundamental Rights:

(i) a resolution passed by a State Government under Fundamental Rule 44 of the State;

(ii) a government notification under the Commissions of Inquiry Act setting up a commission of
inquiry;

(iii) a notification or an order under a statute;

iv) an administrative order; but administrative instruction is not law within the meaning of Article
13.

(v) a custom or usage;

(vi) bye-laws of a municipal or a statutory body;

(vii) regulations made by a statutory corporation like the Life Insurance Corporation.

The validity of the above can be questioned under the Fundamental Rights.

Though a law as such may not be invalid, yet an order made under it can still be challenged as being
inconsistent with a Fundamental Right because no law can be presumed to authorise anything
unconstitutional.

Personal law

There prevail in India several personal laws, such as, Hindu Law, Muslim Law, Parsi Law, Christian
Law of marriage and divorce.

From time to time, several features of these laws have been challenged before the courts on the
ground of their incompatibility with the Fundamental Rights. The courts have adopted the policy of
non-interference keeping in view the susception.

In the case of State of Bombay v. Narasu Appa Mali, the Bombay High Court had to decide
the validity of the Bombay Prevention of Hindu Bigamous Marriages Act 1946. The Court answered
whether personal laws could be interpreted as ‘laws in force’ as mentioned under Article 13(3)(a).
the court held “the expression “personal law” is not used in Article 13 because, in any opinion, the
framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the
Constitution. They must have been aware that these personal laws needed to be reformed in many
material particulars, and in fact they wanted to abolish these different personal laws and to evolve
one common code. Yet they did not wish that the provisions of the personal laws should be
challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and so they
did not intend to include these personal laws within the definition of the expression’ laws in force’.
The Court, in this case, opined that personal laws could not be part of the inclusive definition of ‘law’
under Article 13.

In the case of Shayara Bano v UOI, SC held arbitrary and hence violative of Art 14, the old practice of
instant triple talak. Stating that the Muslim Personal Law (Shariat) Application Act, 1937, was a law
within the meaning of Art 13 of constitution, court declared Sec 2 of the act, as unconstitutional, in
so far as, it sought to enforce triple talak.

Customs

it has the course of law because of long use and usage.

In the case of Madhu Kishwar v

The term ‘having force of law’ means rule of conduct enforceable in court of law. In order that a
particular rule of conduct should be called a law it must be established that it has a force of law.

Whether an amendment of the constitution enacted under Art 368 would be included in the term
“law” under Art 13?

Art 368 was amended and Art 368 (3) was introduced which lays down that nothing in article 13 shall
apply to any amendment of the constitution made under art 368. The constitutionality of this
amendment was upheld by SC in Keshavnanda Bharti v State of Kerala.

Thus, the term law in Art 13 excludes an amendment of constitution made under Art 368.