"Article 13 and Basic

Structure Doctrine: An
Examination of Critical
Perspectives"

Submitted by:
Koyena Biswas , Sarup Biswas, Sagnik Pal.
Course – BBA.LLB (Hons.)
Year – 2021 -2026
Submitted to:
Prof. Indra Nath Dey,
Faculty of Amity Law School,
Kolkata.
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Acknowledgement

We would like to express our deepest gratitude to everyone who contributed to the successful
completion of this project.
Firstly, we would like to thank our project supervisor for providing us with guidance,
feedback, and insights throughout the entire process. Your expertise and support have been
invaluable to us.
We would also like to acknowledge the dedication and hard work of our group members.
Each one of us has contributed unique skills, ideas, and perspectives that have made this
project a success. It has been a pleasure working with such a talented and committed team.
We extend our appreciation to the individuals and organizations who provided us with
resources and information that helped us to conduct our research and develop our project.
Your contributions have enriched the content and quality of our work.
Finally, we would like to thank our families and friends for their unwavering support and
encouragement. Your belief in us and our abilities has been a constant source of motivation
and inspiration.
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Contents

Introduction

Article 13(1)

Doctrine of eclipse

Article 13(2)

Doctrine of Severability

Article 13(3)

Article 13(4)

Doctrine of Basic Structure

Relevant cases in chronological order

Conclusion

References
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Introduction
The Indian Constitution is a remarkable document that goes beyond being a static collection
of laws and regulations that the state employs to govern its people. It is a living, breathing
entity that was crafted with a view to protecting the rights of those who had been subjected to
various forms of discrimination, including patriarchy, communalism, and classism. This
Constitution is the result of a long and hard-fought struggle against British colonial rule in
India, which saw the Congress party emerge as the dominant political force, advocating for
fundamental rights and freedoms.
The framers of the Constitution, many of whom had spent a considerable amount of time in
prison under the British system, were fiercely committed to securing fundamental rights for
all Indians. These rights were repeatedly violated by the ruling class under British rule,
making it all the more important to enshrine them in the Constitution. Moreover, India is a
diverse country with numerous religious, cultural, and linguistic groups, and it was critical to
instill a sense of security and confidence among its people through the declaration of
fundamental rights.
Part III of the Indian Constitution is of paramount importance as it provides a comprehensive
framework for the protection of fundamental rights and freedoms. This framework is further
reinforced by the Basic Structure Doctrine and Article 13, ensuring that the Constitution
remains a powerful tool for safeguarding the rights and freedoms of all citizens of India.
The Basic Structure Doctrine serves as a critical safeguard against any attempt to undermine
the fundamental principles and values enshrined in the Constitution. It guarantees that the
Constitution remains a dynamic and evolving document, capable of adapting to changing
times and circumstances while retaining its core character.
Article 13 of the Constitution also plays a crucial role in protecting the fundamental rights of
citizens. It stipulates that any law that is inconsistent with or in derogation of the fundamental
rights guaranteed under Part III shall be deemed void. This provision ensures that the
government cannot enact laws that violate the fundamental rights of citizens.
Part III of the Constitution is widely regarded as the Bill of Rights for the people of India. It
includes the remedy for the enforcement of fundamental rights, which is itself declared a
fundamental right and is incorporated in the chapter on fundamental rights. This is a
noteworthy aspect of the Indian Bill of Rights. In addition, Article 13 of the Constitution
addresses the legality and legitimacy of pre-constitutional and post-constitutional laws. It
states that any law that infringes upon a fundamental right will be deemed null and void to
the extent of the violation.
The Indian Constitution is a remarkable document that embodies the aspirations and ideals of
a diverse and vibrant nation. Its fundamental principles and values are enshrined in Part III,
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which serves as a robust framework for the protection of fundamental rights and freedoms.
The Basic Structure Doctrine and Article 13 further reinforce this framework, ensuring that
the Constitution remains a dynamic and living document that adapts to the changing needs
and circumstances of the people of India while retaining its core character.

A rticle 13 is the key provision as it gives the teeth to the fundamental rights and
makes them justiciable. It is a crucial provision that ensures the protection of
fundamental rights and freedoms of citizens. It stipulates that any law that is
inconsistent with or in derogation of the fundamental rights guaranteed under Part III of the
Constitution shall be void. This means that if any law passed by the government goes against
the fundamental rights of citizens, it will be considered null and void to the extent of the
violation.
The crux of Article 13 is to prevent the government from enacting laws that violate the
fundamental rights of citizens. It also ensures that pre-constitutional and post-constitutional
laws are deemed invalid if they infringe upon the basic rights of citizens. Thus, Article 13 is
an essential tool for upholding the fundamental rights of all citizens of India.

A brief History
Article 13 which is also referred to as “draft art-8” was debated for 3-days in the
constituent assembly. The debate on Article 13 during the Constituent Assembly
highlighted the importance of protecting fundamental rights and ensuring that no law
violates them. The discussions also clarified the scope and power of the judiciary in
upholding the fundamental rights of the citizens.
On November 25, 1948, Dr. B.R. Ambedkar, the chairman of the Drafting Committee,
introduced Article 13. He explained that the purpose of this article was to ensure that
fundamental rights are not violated by the laws made by the state. He emphasized that
the fundamental rights were the heart and soul of the Constitution, and any law that
violated them would be declared unconstitutional.
On November 26, 1948, the members of the Constituent Assembly discussed the scope
of Article 13. Some members argued that the article should cover all laws, including pre-
constitution laws, while others suggested that it should only apply to post-constitution
laws. Dr. Ambedkar clarified that the article would cover all laws, including pre-
constitution laws, but it would not affect any action taken before the Constitution came
into force.
On November 29, 1948, the members discussed the power of the judiciary to declare a
law unconstitutional under Article 13. Some members were concerned that the judiciary
would become too powerful and would interfere with the legislative process. Dr.
Ambedkar explained that the power of the judiciary to declare a law unconstitutional was
necessary to protect the fundamental rights of the citizens.
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1. Existing Laws Inconsistent with the Constitution & No Retrospective application

of fundamental Rights
Article13(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.”
According to this provision, all "laws in force" at the time the Constitution was adopted
which conflict with the exercise of the Fundamental Rights granted by Part II of the
Constitution will be invalid to the degree of the incompatibility. A pre-constitutional statute
must comply with the provisions of Part III of the Constitution after the commencement of
Part Constitution.
This does not, however, make the existing laws which are inconsistent with the fundamental
rights void ab initio. The entire Part III of the Constitution, including Article 13(1), is
prospective in nature. As a result, any existing laws which are conflicting with any provision
of Part III become void only with effect from the commencement of the Constitution, which
for the first time established the Fundamental Rights. Hence, the inconsistency referred to in
Article 13(1) has no bearing on past transactions that were completed before the
commencement of the Constitution or the enforcement of rights and liabilities that had
accrued under the ‘inconsistent laws’ prior to the commencement of the Constitution.
On the other hand, it does not imply that an unconstitutional procedure laid down by a pre-
Constitution Act must be followed in relation to pending proceedings or in relation to new
proceedings instituted regarding pre-Constitution rights or liabilities. In the absence of a
specific rule to the contrary, there is no vested liability in any matter of procedure, just as
there is no vested right in any course of procedure.
Nevertheless, nothing in the Fundamental Rights Chapter of the Constitution can operate
retrospectively to processes that were concluded or became final prior to the
commencement of the Constitution. For the same reason, it is impossible to contest the
legality of the part of the proceedings that took place under the inconsistent law before the
commencement of the Constitution.
Article 13(1) does not remove inconsistency from the law for all times, or for all intended
purposes, or for all individuals, rather the result is that conflicting laws cannot prevent those
who are entitled to fundamental rights, mentioned in the Constitution, from exercising those
rights in relation to people who have not been granted those rights.

Doctrine of Eclipse

The definition of an eclipse in its literal sense is to cover over or conceal something for a
period. This doctrine is provided under Article 13(1) of the constitution.  According to this,
any pre-constitutional legislation that breaches a fundamental right is simply
overshadowed by that right and is not rendered null or dead. An amendment to the
fundamental right can remove this shadow, after which the eclipse will be lifted, and the
legislation will resume its normal operation.
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Because of this eclipse in Article 13(1), any pre-constitutional legislation that is violated will
remain dormant and not be deemed void.
Essential Elements of Eclipse –
a. This theory only applies to pre-constitutional laws.
b. The fundamental rights guaranteed by Part III of the constitution must conflict with or
violated by the legislation.
c. These laws were neither dead nor void when the constitution came into
effect, rather they simply ceased to be in effect.
d. This eclipse can be dispelled by amending the relevant fundamental right, at which
point the relevant law will resume operating.
Bhikaji v State of MP (AIR 1955 SC 781)– It is one of the landmark cases relevant to the
doctrine of eclipse concept. In this case, an Act was passed on the nationalization of the
motor transport industry before the constitution came into effect. The petitioner challenged
its legality on the grounds of Article 19 of the constitution after the commencement of the
constitution. The 4th constitutional amendment, which gives the state the authority to
nationalize motor transportation, was introduced by the central government during the
proceedings, nevertheless. The 4th constitutional amendment removed the shadow, hence the
court held that the doctrine of eclipse will apply in this case. The Act will therefore be in
effect once more with the same force.
It is essential to note that the post-constitutional laws will not be impacted by the Doctrine
of Eclipse. In the case of Deep Chand v. State of Uttar Pradesh (1959 AIR 648 SCR Supl.
(2) 8), it was decided that post-constitutional laws are void ab initio and have no legal
validity since their inception. This doctrine will thus not apply to them.

2. Validity of Post-Constitution laws (which are inconsistent, shall be void  ab initio)

Article 13(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.”
It provides that any law made by any legislature or other authority after the commencement
of the Constitution, which contravenes any of the fundamental rights included in Part III of
the Constitution shall, to the extent of the contravention, be void.

As distinguished from Clause 1, Clause 2 makes the inconsistent laws void ab initio and even
convictions made under such unconstitutional laws shall have to be set aside. Anything done
under the unconstitutional law, whether closed, completed, or inchoate, will be wholly illegal
and the relief in one shape or another has to be given to the person affected by such
unconstitutional law. Nor it is revived by any subsequent event.

This does not mean that the offending law is wiped out from the statute book altogether. It
remains in operation as regards to persons who are not entitled to the fundamental rights in
question (e.g., a non-citizen in respect of a right guaranteed by Article 19). Clause 2 does not
authorize the Courts to interfere with the passing of a bill on the ground that it would, when
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enacted, be void for contravention of the Constitution. The jurisdiction of the Court arises
when the bill is enacted into law.

In the case of Mahendra v. State of U.P. (1963) 3 SCR 740, the Supreme Court explained
the true scope and nature of Article 13(2). The court held that this Article put a restriction on
the law-making power of the state. The parliament or the state legislature necessarily need to
comply with the provision of Article 13(2) and make sure the law is consistent with all the
fundamental rights.  This restriction is in addition to the restriction placed by the 7th schedule
of the constitution relating to the power of making laws as per the 3 lists of the constitution.

In the case of State of Gujarat v. Ambika Mills, 1974) 4 SCC 656- In the case of State of
Gujarat v. Ambika Mills, the Supreme Court discussed the scope and effect of Article 13(2)
of the Indian Constitution. It contained certain questions which were against fundamental
rights. Now it was clear that after Constitution came into effect, state did not have the power
to pass the law against fundamental rights. But question in this case was whether
fundamental rights are available to citizens and up what about the non-citizens and
companies? In this case the respondent was a company who was not granted the fundamental
rights. It involved a challenge to the validity of certain provisions of the Gujarat Imposition
of Taxes on Entry of Goods into Local Areas Act, 1961. The Act provided for the imposition
of a tax on the entry of goods into local areas in the State of Gujarat. Ambika Mills, a
company incorporated under the Indian Companies Act, 1913, challenged the Act on the
grounds that it violated the fundamental rights guaranteed under Articles 14, 19(1)(g), and
301 of the Constitution. The company argued that the Act discriminated against non-citizens
and companies and placed unreasonable restrictions on their freedom to carry on business.
The main issue before the court was whether the provisions of the Act violated Article 13(2)
of the Constitution, which provides that the state shall not make any law that takes away or
abridges the fundamental rights of any person. So in that case would this act be valid or not?
The Court held that the Gujarat Industrial Development Act, 1962, which authorized the
State Government to acquire land for industrial development, was inconsistent with Article
31(2) of the Constitution, which provides that no person shall be deprived of his property
without compensation. The Court also held that the Act was void to the extent of its
inconsistency with Article 31(2) and that the State Government could not acquire land
without paying compensation to the landowners. So basically, the state is prohibited from
making any laws which are against fundamental rights, even if such laws are made it shall
not be applicable on the citizens but all those categories of parties which are not granted
fundamental rights like companies non-citizens, for them that piece of legislation is still
operative and not void and valid. The Supreme Court, in its judgment, held that the term
"person" in Article 13(2) includes not only natural persons but also artificial persons such as
corporations, companies, and other juristic entities. Therefore, non-citizens and companies
could claim the benefit of Article 13(2) and challenge any law that violates their fundamental
rights.
The Court also held that the object of Article 13(2) is to ensure that the state does not
exercise its power to make laws in a manner that violates the fundamental rights of any
person. The Court observed that the state, while making laws, must ensure that the rights of
every person within the territory of India, whether a citizen or a non-citizen, are protected.
Thus, the decision in State of Gujarat v. Ambika Mills confirmed that non-citizens and
companies are entitled to the protection of fundamental rights under Article 13(2) of the
Indian Constitution.
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Doctrine of Severability
The literal meaning of severability is “to separate something”. This doctrine is provided
under Article 13(2) of the constitution. This doctrine states that if any post-constitutional law
violates some fundamental rights, then after separating the offending provision from the
statute, the rest of the law will be deemed as valid. In other words, we can say that if we
separate the unconstitutional part from the statute, then we should only declare the separated
part void and not the entire law. The doctrine is derived from the wording “to the extent of
such inconsistency” which means that only the inconsistent law will be deemed void and not
the entire law.

A K Gopalan v. State of Madras (AIR 1950 SC 27) – n the case of A.K. Gopalan v. State
of Madras (1950), the petitioner, A.K. Gopalan, was detained under the Preventive Detention
Act, 1950, by the State of Madras. Gopalan challenged the validity of the Act on the grounds
that it violated his fundamental rights under Articles 14, 19, and 21 of the Constitution.

One of the arguments raised by Gopalan's counsel was that the provision for preventive
detention for a maximum period of three months without trial, which was contained in
Section 14 of the Act, violated Article 21 of the Constitution, which guaranteed the right to
life and personal liberty.

The Supreme Court, in its judgment, rejected this argument and held that the right to life and
personal liberty was not absolute and could be curtailed by law. The court further held that
preventive detention, as a form of preventive justice, was a valid method of maintaining
public order and preventing crime.

However, the court also observed that if any provision of the Act was found to be
unconstitutional, it would not necessarily render the entire Act invalid. The court held that the
doctrine of severability could be applied in such cases, which meant that the invalid provision
could be struck down, while the rest of the Act could remain valid and enforceable.

In the case of A.K. Gopalan v. State of Madras, the Supreme Court applied the doctrine of
severability and struck down only a small part of the Act, which dealt with the formation of
advisory boards. The rest of the Act was held to be valid and enforceable.

Further clarity on the doctrine of severability was given by the Hon’ble Supreme Court in the
case of R.M.D.C vs Union of India (1995 5 SCC 647) In that case, the criteria behind the
invoking of this doctrine were laid down. These criteria are as follows –

 This doctrine is only applicable when both the valid and the invalid portions can be
severed or separated from each other.
 If in a case, both the valid and the invalid parts are closely intermingled and it is not
possible to separate them, then the whole of the statute will be declared void.

In the case of Kartar Singh Vs State of Punjab (1994) 3 SCC 569), the petitioner
challenged the constitutionality of certain provisions of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA). The petitioner argued that the provisions violated
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various fundamental rights guaranteed under the Constitution, including Articles 14, 19, 21,
and 22.

One of the arguments raised by the petitioner's counsel was that certain provisions of TADA,
which allowed for the admission of confessions made to a police officer as evidence in court,
violated Article 20(3) of the Constitution. Article 20(3) provides that no person accused of an
offence shall be compelled to be a witness against himself.

The Supreme Court, in its judgment, held that the provisions allowing for the admission of
confessions made to a police officer were unconstitutional and violated Article 20(3). The
court observed that the protection under Article 20(3) was a basic human right and a
cornerstone of the criminal justice system.

However, the court also applied the doctrine of severability and held that the rest of the Act
was valid and could be enforced. The court observed that the invalid provisions could be
severed from the Act, and the remaining provisions could still serve the object and purpose of
the Act.

In its judgment, the court stated that the doctrine of severability was an important tool for
upholding the constitutional validity of laws. The court observed that if a law contained
provisions that were unconstitutional, but the rest of the law was valid, the invalid provisions
could be struck down, and the remaining provisions could still be enforced.

Therefore, in the case of Kartar Singh v. State of Punjab, the Supreme Court struck down
certain provisions of TADA that violated Article 20(3) of the Constitution but upheld the
remaining provisions of the Act under the doctrine of severability.

3. Definition of Law

Article 13(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.”
The definition of the term “Law” and the “law in force” is given under Article 13(3) of the
constitution. In essence, any action taken by the state or its agencies that has the force of law
and affects the fundamental rights of citizens falls within the ambit of the definition of "law"
under Article 13(3) of the Indian Constitution. It is important to note that this definition is an
inclusive one and it encompasses the following things –

 An Ordinance promulgated by the president because it is issued after exercising the

legislative powers of the executive.
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 It also included an order, rules, regulations and byelaws created for a particular
purpose. They generally fall under the category of subordinate legislation which is not
enacted by the legislative body.
 Any custom or usage having the force of law are also included in the ambit of Article
13(3). These customs and usages are not enacted by the legislature. The main purpose
of giving this broad definition of law was to predict all possible scenarios that in
future hamper the rights of individuals.
 An administrative rule or some regulations made by some statutory body like
SEBI, RBI, etc. will also come under the ambit of the law.
 The term “law in force” implies that the laws made by any legislature or any other
competent authority before the commencement of the constitution.
However, certain instruments that do not have the force of law are not covered within the
definition of "law" under Article 13(3):
 Personal laws like Hindu Law or Muslim law will not fall under the ambit of Article
13(3) of the constitution. However, the position regarding whether personal laws fall
within the ambit of Article 13(3) is not entirely settled, and different courts have
taken different views on this issue. Supreme Court's view is that personal laws do fall
within the definition of "law" under Article 13(3), and any personal law that violates
fundamental rights can be challenged as unconstitutional.
In the case of State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84., the Supreme
Court of India had to decide whether personal laws, which are based on religion, could be
challenged as violative of fundamental rights under Article 13(1) of the Constitution.

The petitioner in this case challenged the validity of certain provisions of the Bombay
Prevention of Bigamous Hindu Marriages Act, 1946, which prohibited Hindu men from
marrying a second wife during the lifetime of the first wife. The petitioner argued that the
Act violated his right to freedom of religion guaranteed under Article 25(1) of the
Constitution.

The Supreme Court, in its judgment, held that personal laws, which are based on religion, are
not "laws" within the meaning of Article 13(3) of the Constitution. The court observed that
Article 13(3) only applies to laws made by the state or other statutory authorities and does not
extend to personal laws.

The court further held that personal laws, which are based on religion, are outside the scope
of Article 13(1) of the Constitution. The court observed that personal laws are protected
under Article 25(1) of the Constitution, which guarantees freedom of religion and the right to
practice and propagate religion subject to public order, morality, and health.
Therefore, the Supreme Court in the case of State of Bombay v. Narasu Appa Mali held that
personal laws, which are based on religion, are not subject to challenge as violative of
fundamental rights under Article 13(1) of the Constitution, as they are not "laws" within the
meaning of Article 13(3).
However, personal laws are subject to the limitation of public order, morality, and health
under Article 25(1) of the Constitution.
It is important to note that the decision in this case was specific to personal laws and did not
apply to other forms of customary law or usage that have the force of law. The Supreme
Court in subsequent cases has taken a different view and held that customary law or usage, if
found to be violative of fundamental rights, can be struck down as unconstitutional under
Article 13(2) of the Constitution.
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Shayara Bano v. Union of India (2017) (2017) 9 SCC 1., the Supreme Court held that the
practice of triple talaq, which is a form of divorce under Islamic personal law, is
unconstitutional and violates the fundamental rights of Muslim women. In this case, the
Supreme Court specifically held that personal laws fall within the ambit of Article 13(3) of
the Constitution, and any personal law that violates fundamental rights can be struck down as
unconstitutional.
Therefore, the position on personal laws under Article 13(3) remains that personal laws are
considered "laws" under the Constitution, and any personal law that violates fundamental
rights can be challenged as unconstitutional.

In the subsequent case of Indian Young Lawyers Association v. The State of Kerala
(2018) 11 SCC 1, Supreme Court has held that personal laws, while protected under Article
25 of the Constitution, must also be in conformity with other fundamental rights guaranteed
under the Constitution and that Sabarimala temple's custom of excluding women of
menstruating age was not an essential religious practice protected under the Indian
Constitution and could not be justified on the basis of personal law. Therefore, any personal
law that is found to be discriminatory or violative of fundamental rights can be struck down
as unconstitutional.
 Administrative instructions, executive orders, or mere guidelines that do not have
the force of law are not included within the ambit of the definition of "law" under
Article 13(3). This means that any action taken by an executive or administrative
authority, which does not have the force of law, cannot be challenged as a violation of
fundamental rights under Article 13(2) of the Constitution.
The case of Union of India v. R. Gandhi (2010) 11 SCC 1 dealt with the issue of whether
administrative instructions issued by the Government of India can override the provisions of
a law enacted by the Parliament of India.
In this case, the Ministry of Finance issued an administrative instruction stating that
employees who had been promoted with retrospective effect would not be entitled to arrears
of pay and allowances for the period prior to the date of actual promotion. The employees
challenged this instruction, arguing that it was contrary to the provisions of the Central Civil
Services (Revised Pay) Rules, 1997, which entitled them to arrears of pay and allowances for
the entire period of their promotion.
The Supreme Court of India held that the administrative instruction was invalid and could not
override the provisions of the law enacted by the Parliament. The court emphasized that
administrative instructions or executive orders cannot be used to modify the provisions of the
law enacted by the legislature. The court observed that administrative instructions or
executive orders must be consistent with the law and cannot be used to circumvent or modify
the provisions of the law.
The court also noted that administrative instructions or executive orders are not laws within
the meaning of Article 13(3) of the Indian Constitution and therefore cannot be challenged
under that provision. The court held that only laws enacted by the legislature or delegated
legislation made by the executive under the authority of the legislature can be challenged
under Article 13(3).
Overall, the case of Union of India v. R. Gandhi reaffirms the principle that administrative
instructions or executive orders cannot override the provisions of the law enacted by the
legislature and that they must be consistent with the law.

Grey Area:
Whether an amendment of the constitution amounts to “law” under article 13?
Can amendments be challenged under article 13?
What comes under the ambit and scope of basic doctrine structure?
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In this part, the questions that surfaced before the court (as mentioned above) will be
discussed broadly. There is a series of case law which needs to be pinpointed whenever we
talk about the relation among article 13(4) , article 368 and doctrine of basic structure.

Looking At Article 13 Vis-À-Vis The Basic Structure Doctrine

While discussing about this doctrine two most important articles do come into the picture,
one is article 13, which acts as the protector of the fundamental rights and another one is
article 368, which holds the power to amend the constitution. The doctrine is merely a big
tussle of power between the judiciary and the parliament of India.

On one side, Article 13(2) of the Indian Constitution says that the Parliament cannot make a
law that takes away or abridges fundamental rights. On the other, Article 368 gives the
Parliament the power to amend the fundamental rights by a special majority in the
Parliament.

In Shankari Prasad v. Union of India (1951) SCR 747., which is a landmark case in Indian
constitutional law the Supreme Court of India addressed the issue of whether the Parliament
of India has the power to amend fundamental rights enshrined in the Constitution. The case
arose when the Parliament passed the Constitution (First Amendment) Act, 1951, which
inserted Article 31A and Article 31B into the Constitution. These provisions aimed to protect
laws that were enacted to implement the Directive Principles of State Policy from being
challenged on the grounds of violation of fundamental rights. The petitioner, Shankari
Prasad, challenged the Constitution (First Amendment) Act on the grounds that it violated the
fundamental rights enshrined in the Constitution, particularly Article 14 (right to equality)
and Article 19 (right to freedom of speech and expression). The petitioner argued that the
Parliament did not have the power to amend fundamental rights. The Supreme Court,
however, held that the Parliament did have the power to amend fundamental rights under
Article 368 of the Constitution. The court noted that Article 13(2) of the Constitution only
prohibited the state from making laws that were inconsistent with the fundamental rights and
did not prevent the Parliament from amending the Constitution to abridge or take away the
fundamental rights. The court held that the power to amend the Constitution includes the
power to amend fundamental rights. The court noted that the Constitution itself provides for
the amendment of fundamental rights and that the Parliament is the supreme law-making
body in India.

Sajjan Singh v. State of Rajasthan ((1965) 1 SCR 933 is a notable case in Indian
constitutional law that deals with the relationship between fundamental rights and executive
action. In this case, the Supreme Court of India addressed the issue of whether an amendment
to the Constitution made by the Parliament of India can be challenged on the grounds of
violation of fundamental rights. The case arose when the Parliament passed the Constitution
(Seventeenth Amendment) Act, 1964, which amended Article 31C of the Constitution. The
amended Article 31C provided that any law made to give effect to the Directive Principles of
State Policy contained in Articles 39(b) and (c) cannot be challenged on the grounds that it
violates the fundamental rights guaranteed under Articles 14, 19 and 31 of the Constitution.
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The petitioner, Sajan Singh, challenged the Constitution (Seventeenth Amendment) Act on
the grounds that it violated his fundamental rights guaranteed under Articles 14, 19 and 31 of
the Constitution. The petitioner argued that the amendment was in conflict with the basic
structure of the Constitution and therefore, void. The Supreme Court of India held that the
Parliament did have the power to amend the Constitution under Article 368, which empowers
the Parliament to amend the Constitution by a special majority. The court noted that Article
368 is a comprehensive provision that gives the Parliament wide powers to amend the
Constitution.

The court also held that the power of amendment under Article 368 includes the power to
amend any part of the Constitution, including the fundamental rights. The court noted that
Article 13(2) of the Constitution, which prohibits the state from making any law that takes
away or abridges the fundamental rights, does not apply to constitutional amendments made
under Article 368. The court noted that while the Parliament has the power to amend the
Constitution, it cannot change the basic structure of the Constitution, which includes the
fundamental rights.

Overall, the judgment in Sajan Singh v. State of Rajasthan (17th CAA) established the
principle that the Parliament of India has the power to amend the Constitution under Article
368, including the power to amend the fundamental rights. However, this power is subject to
certain limitations and cannot be used to alter the basic structure of the Constitution.

Another case came into picture which was I. C. Golaknath & Ors vs the State Of Punjab
(1967 AIR 1643, 1967 SCR (2) 762), 17 Constitution Amendment Act was again challenged
but the question was whether the power to amend the fundamental rights is unlimited or
limited in this case everything was reversed. The Supreme Court stated that the power to
amend the constitution including the fundamental rights is not unlimited and it is subject to
limitation of judicial review Until this case, it was found that the article 368 had an unlimited
power that even Article 3 team could not stop it. But in this case, the position was reversed,
and Article 368 was brought to subject to judicial review. The Supreme Court could even
vent went ahead and said that the parliament does not have any power to amend an abridged
the fundamental right in the way of amendment. Further the ambit of Article 13(2) was
discussed and said that the word law used under Article 13(2) clause two includes
amendment and if any amendment voided fundamental right, it would be void.

In order to nullify this judgement parliament passed 24th amendment, 1971by saying that:

Any amendment made under article 368 would not be considered as law and hence article
13(4) is different from the word law used in article 13(3). So, the crux of this amendment was
to explore the applicability of the article 13 on to article 368. Therefore, everything held in

Article 13(4)
“Nothing in this article shall apply to any amendment of this Constitution made under
article 368.”
This Article 13(4) was introduced in the Constitution by the 24th constitutional
Amendment in 1971. It is an overriding provision which states that any amendment made
under Article 368 of the constitution will not be challenged under Article 13 of the
constitution. It is important to note that even if the said amendment violates the provision
of fundamental rights, still Article 13 will not be applicable to them. This provision was
incorporated because of the continuous struggle of power between the executive and the
judiciary during the time of Indira Gandhi
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Golaknath case, holds no value after 24th amendment act. Thus, it became clear that
parliament can dilute the constitution including the fundamental right.

Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225. is a landmark constitutional

case in India, which was decided by a 13-judge bench of the Supreme Court in 1973. The
case was about the extent of the Parliament's power to amend the Constitution under Article
368. The petitioner, Kesavananda Bharati, was the head of a Hindu monastery in Kerala. He
challenged the validity of the 29th Constitutional Amendment Act, which had inserted certain
provisions in the Ninth Schedule of the Constitution. The Ninth Schedule provides protection
to laws that are included in it from being challenged on the grounds of violation of
fundamental rights guaranteed under Part III of the Constitution. The main argument
advanced by the petitioner was that the Parliament's power to amend the Constitution under
Article 368 was not absolute, and that there were certain basic features of the Constitution
that could not be amended. He argued that the insertion of laws in the Ninth Schedule that
violated fundamental rights was a violation of these basic features. The Supreme Court, in a
historic decision, upheld the petitioner's argument and held that the Parliament's power to
amend the Constitution was not absolute. The Court held that there were certain basic
features of the Constitution, such as the supremacy of the Constitution, the democratic
system, the rule of law, and the independence of the judiciary, which could not be amended
by the Parliament. The Court also held that the power of judicial review was a basic feature
of the Constitution.

The Court further held that any amendment that sought to abrogate or damage these basic
features would be unconstitutional and void. However, the Court did not provide an
exhaustive list of what constituted these basic features, leaving it to be determined on a case-
by-case basis.

In its judgment, the Court also clarified that the power of the Parliament to amend the
Constitution under Article 368 did not include the power to alter the Constitution's basic
structure. The Court held that the Constitution's basic structure was inviolable and that any
amendment that sought to alter it would be unconstitutional.

The Kesavananda Bharati case established the principle of the basic structure doctrine, which
limits the Parliament's power to amend the Constitution. The case has been widely regarded
as one of the most significant and influential judgments in the history of Indian constitutional
law.
Basic structure doctrine:
The importance of the Basic Structure Doctrine lies in its ability to preserve the fundamental
principles and values of the Constitution. It ensures that the Constitution remains true to its
core ideals, and that the basic framework of the Constitution is not altered in a manner that
would be detrimental to the principles of democracy, secularism, federalism, and the rule of
law. The Basic Structure Doctrine has been applied in several cases since the Kesavananda
Bharati judgment, and has been used to strike down several amendments to the Constitution
that were found to be in violation of its basic structure.
The principles of the Basic Structure Doctrine are as follows:
 The Constitution has a basic structure that is inviolable and cannot be amended by the
Parliament.
 The basic structure includes features such as the supremacy of the Constitution,
democracy, secularism, federalism, and the rule of law.
 Any amendment that seeks to abrogate or damage the basic structure would be
unconstitutional and void.
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After the introduction of the basic structure of the constitution, the parliament introduced
42nd amendment, 1975 which is also called as the mini constitution or the constitution of
Indra (Indra Gandhi), it gave the power to the parliament to amend any law in the
constitution including the basic structure of the constitution. It brought about a number of
changes to the Constitution of India, including amendments to the basic doctrine theory and
Articles 368 and 13. The basic doctrine theory is a constitutional principle that holds that
certain features of the Constitution of India are so fundamental that they cannot be amended
by the Parliament. These features include the supremacy of the Constitution, the rule of law,
and the separation of powers between the legislature, executive, and judiciary. The 42nd
Amendment Act did not explicitly mention the basic doctrine theory, but it introduced
changes that were seen as a threat to the doctrine. Article 368 of the Constitution deals with
the power of the Parliament to amend the Constitution. The 42nd Amendment Act amended
this article to make it clear that the power of the Parliament to amend the Constitution is
unlimited, and that any amendment, including those that affect the basic structure of the
Constitution, can be made by a two-thirds majority of both houses of Parliament. Article 13
of the Constitution deals with the doctrine of judicial review, which allows the judiciary to
strike down laws that are found to be unconstitutional. The 42nd Amendment Act amended
this article to make it clear that the Parliament has the power to amend any part of the
Constitution, including fundamental rights, and that such amendments cannot be challenged
in court on the ground of violation of fundamental rights.

The changes introduced by the 42nd Amendment Act were controversial and led to
widespread protests. Subsequent judicial decisions, however, have upheld the basic doctrine
theory and have placed limits on the power of the Parliament to amend the Constitution.

Scope of amendment under article 368: How far can the provision of article
368 be amended?

Indira Gandhi v Raj Narain (1975) Supp SCC 1, also known as the "Election case," is a
landmark judgment by the Supreme Court of India. The case was heard in 1975 and arose out
of a petition filed by Raj Narain, a political opponent of then Prime Minister Indira Gandhi,
challenging her election to the Lok Sabha in 1971.

During the course of the hearing, the Supreme Court also examined the constitutional validity
of the 39th Amendment Act, which had been passed by the Parliament in 1975. The 39th
Amendment had sought to insert a new Article 329A into the Constitution, which would have
made certain election-related matters non-justiciable and immune from judicial review.

The Supreme Court, in its judgment, struck down the 39th Amendment as unconstitutional on
the ground that it violated the basic structure of the Constitution. The Court held that while
the Parliament had the power to amend the Constitution under Article 368, this power was
subject to the limitation that the Parliament cannot amend the basic structure of the
Constitution.

The Court also held that the principle of judicial review is an integral part of the basic
structure of the Constitution, and that any amendment that seeks to abrogate or curtail this
principle would be unconstitutional. Therefore, the Court held that the new Article 329A,
which sought to take away the power of the judiciary to review election-related matters, was
unconstitutional.
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The Indira Gandhi v Raj Narain case is significant as it reaffirmed the principle of judicial
review and the limits of the Parliament's power to amend the Constitution. It established that
the power of the Parliament to amend the Constitution under Article 368 is not absolute and
is subject to the limitation that it cannot amend the basic structure of the Constitution.

In Minerva Mills case (1980) 3 SCC 625., the Supreme Court held that the Parliament's
power to amend the Constitution under Article 368 is not absolute and that the Parliament
cannot amend the Constitution in a way that destroys or damages its basic structure. The
Court further held that the power of judicial review is an integral part of the basic structure of
the Constitution and that any amendment that seeks to take away or abridge this power would
be unconstitutional. After this case, it was finally settled that the constitution is supreme and
parliament can’t exercise unlimited amending power and finally it was said “constitution is a
precious heritage” therefore nobody can destroy its identity.

Conclusion

In the history of our Constitution, Article 13 has played a vital role in shaping our
constitutional jurisprudence by the mechanism of judicial review. This Article served as a
ground on which the legality of various pre-constitutional and post-constitutional laws are
ascertained.

The two terms provided under Article 13 namely “inconsistency and contravention” played a
vital role in striking off those statutes that are violative of our fundamental rights and enforce
the spirit of constitutionalism in the society. Lastly, it can be said that Article 13 provided
teeth to our fundamental rights by making them justifiable in nature.

The meaning of Article 13 may appear to be simple at first glance, but over the years, its
purpose and definition have undergone several interpretations. Article 13 and its ambit have
developed with every case that discussed its implications on both pre-and post-colonial laws.
It has been vital for our Constitution as it successfully made several repressive laws void, and
in some cases, inoperative. Further, it is essential to remember that the legislature cannot
encroach upon judicial review under Article 368. It is an inherent and implied limitation on
the legislature’s power of constitutional amendment. In recent years, the Supreme Court of
India has continued to apply the basic structure doctrine and the principle of judicial review
in cases related to Article 368 and Article 13 of the Constitution.

In 2018, the Court upheld the validity of the 97th Amendment Act, which had inserted a new
Article 43B into the Constitution, mandating the formation of cooperative societies. The
Court held that the amendment did not violate the basic structure of the Constitution and was
aimed at fulfilling the objectives of the DPSPs.

In 2020, the Court struck down the 97th Amendment Act in so far as it sought to bring
cooperative societies within the purview of the Right to Information Act, 2005. The Court
held that the amendment was contrary to the principles of federalism and autonomy of the
cooperative societies, which are part of the basic structure of the Constitution.

These cases demonstrate the ongoing importance of Article 13 and Article 368 in ensuring
that constitutional amendments are made in accordance with the basic principles of the
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Constitution and that the power of judicial review is an essential component of the Indian
constitutional system.

To conclude , we can say that the framers of the constitution had a clear perception of part III
in their minds thus to protect the same, Article 13 was brought into being. Therefore, while
Article 13 and Article 368 are distinct provisions of the Constitution, they are closely
interconnected. The power of judicial review under Article 13 ensures that any amendment to
the Constitution made under Article 368 must be in conformity with the fundamental
principles of the Constitution and the basic structure doctrine. Together, these provisions
ensure that the Constitution remains a living document that can adapt to changing times while
upholding the fundamental principles of democracy, equality, and justice. It is worth noting
that Article 13 not only differentiates between state and other laws, but also clearly specifies
the field of application. Though the wordings in this article are concise in nature, still the
Article implicitly manages to lay several doctrines to clarify any contingency that arises.
Thus, we can say that it is as a backbone of constitution as are the fundamental rights as these
rights would have been abridged numerous times if Article 13 would not have been in
existence.
-Thank you!

References

 Article 13: A Bête Noire in the Indian Constitution? - JURIST - Commentary - Legal

News & Commentary

 Article 12 and 13 Of The Constitution Of India - Academike (lawctopus.com)

 Article 13 in The Constitution of India, 1949 – Legal Study Material

 Doctrines of Indian Constitution (finology.in)

 Article 13 Of Indian Constitution: An Overview (legalserviceindia.com)

 Analysing the Ambit & Meaning of Article 13 (with case laws) - Academike

(lawctopus.com)
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 Article 13 of the Indian Constitution - Article 13 of the Indian Constitution Article 13

has been - Studocu

 Article 13 of the Indian Constitution - Indian Legal Solution