Analysing the Ambit and Meaning of

Article 13: How Did the Judiciary

Interpret It?
June 4, 2021 · Read time: 10 min
Article 13 reserve and preserve the fundamental rights of the citizen,
protecting from laws that may otherwise infringe upon our freedom.
Article 13 requires that all amendments and laws passed by the
Parliament are tested based on their validity under the Indian
Constitution. Highlighting the transformative character of the
Constitution, Anamika Mishra decodes Article 13, peeling it Clause
by Clause. The underlying theme of the article also reflects on
judicial review and its affect on interpreting Article 13.
Analysing the Ambit and Meaning of Article 13: How Did the Judiciary Interpret
It?
By Anamika Mishra, currently pursuing law from Faculty of Law, Delhi
University.
Introduction
In the Second Treatises of government, John Locke wrote that the contract between
the government and ‘men’ works only if the sovereign protects all men and their
property in exchange for rights.
Further, in Chapter XVIII under Section 201 and 202 of the book, he states that if
the government or sovereign uses such power to pass arbitrary and irregular
commands, they will be treated like ‘any other man who by force invades the right
of another’. Therefore, ‘men’ are well within their rights to question the
government’s powers if they transgress one’s liberty and freedom. This means that
citizens, first as humans, have the right to their legal rights by the sheer dint of
being human.

The Indian Constitution provides for a similar contractual agreement between the
State and the citizen. Therefore, if any legislation inflicts upon a person’s
constitutional rights mentioned in Part III of the Constitution, they can approach
the judiciary under Article 226 and 32.

In L. Chandra Kumar v. Union of India (1997), the Supreme Court recognised

the power of the High Courts under Article 226 and Article 227 of the
Constitution. Additionally, in Indira Nehru Gandhi vs Shri Raj Narain & Anr
case(1975), the Court affirmed that judicial review is part of the basic structure of
the Constitution.
The Constitution allows the Indian judiciary to assess such legislations and strike
them down if considered void or unconstitutional.

Similarly, discussing Article 13 of the Indian Constitution becomes crucial to

realise Locke’s words completely. Article 13 aids the court and citizens to keep the
powers of the legislature under preview. Article 13 of the Indian Constitution
describes the means for judicial review.
It enjoins a duty on the Indian State to respect and implement the fundamental
right. And at the same time, it confers a power on the courts to declare a law or an
act void if it infringes the fundamental rights.

This piece aims to peruse Article 13 and its Clauses while also understanding how
the courts’ interpretations shaped how Article 13 is understood today. This piece
will explain Article 13, Clause by Clause, and its significance as read by the Indian
judiciary. It will also emphasise the importance of judicial review vis-a-vis Article
13.

What Is Article 13? Construing The Clauses Vis-À-Vis

Precedents
Article 13 is the guardian of Rights mentioned in Part III of our Constitution.
Clause (1) of the said Article emphasises that all inconsistent existing laws become
void from the commencement of the Constitution.

Article 13 (1) was first interpreted by the Supreme Court in adjudicating whether
Article 13 had any retrospective effect as far as laws inconsistent with the
fundamental rights were concerned.
In Keshavan Madhava Menon v The State Of Bombay (1951), a seven-judge
Bench heard the appeal of a petitioner prosecuted under the Indian Press
(Emergency Powers) Act. Part of the appeal posed if Article 13 (1) of the Indian
Constitution could ‘declare all laws inconsistent with the fundamental rights to be
void as if they had never been passed and existed’ or void ab initio.
The Court ordered that Article 13(1) does not make existing laws inconsistent with
the fundamental rights, or void ab initio, for all purposes. But Article 13 makes
such laws’ ineffectual and void’ prospectively based on its exercise of
fundamental rights on and after the commencement of the Constitution.
Justice Das, on behalf of the bench (barring the dissent Justice Fazl Ali), observed,

“There is no fundamental right that a person cannot be prosecuted

and punished for an offence committed before the Constitution came
into force. So far as past acts are concerned, the law exists.”
Therefore, if a law becomes void from the applicability of the Constitution, as it is
inconsistent with the rights imbibed in part III, it will still apply to citizens and
non-citizens who committed an offence under the said law.

Do Non-Citizens have Access to Article 13(2)?

Article 13(2) of the Indian Constitution says that the State must not make laws that
are not in ‘consonance’ with the Constitution. And if the law drafted intervened
with an individual’s fundamental rights, the said law will become void to the
extent of the contravention. This is an express ground for judicial review after
legislation.
The State Of Gujarat And Another v. Shri Ambica Mills Ltd. is one of the
many cases that add to the conundrum of interpreting Article 13(2). For some
context, in 1961, the State of Gujarat had enacted the Bombay Welfare Fund
(Gujarat Extension and Amendment Act) following the bifurcation of the State of
Bombay in May 1960.
The Amendment Act made several changes in the Bombay Welfare Fund Act
1953. The respondent, a company registered under the Companies Act (1956),
raised ‘several contentions’. One of them posed that specific provisions of the
Amendment Act ‘violated the fundamental right of citizen employers and
employees under Article 19 (1)(f)’. Hence, the Act was not authorised under law
and void under Article 13(2).

Among other things, the Constitutional Bench of the Supreme Court also had
to answer if ‘Ambika Mill’, a non-citizen, could claim the law to be void
or non-est based on Article 13(2).
On behalf of the Constitutional Bench of the Supreme Court, Justice Mathew
observed that with the advent of the Constitution of India, special rights were given
only to citizens, which render them protection against a post unconstitutional law.
But these provisions, although unconstitutional for the citizen, were not non-
est for non-citizens like the employer in this case. The Court also observed with
respect to Article 13(1), as interpreted by the Keshavan Madhava case, the word
‘void’ would not apply for non-citizen from pre-constitution laws.
With respect to Article 13 (2), the Court observed,

“Therefore, when article 13(2) uses the expression ‘void’, it can only
mean void as against persons whose fundamental rights are taken
away or abridged by law. The law might be ‘still-born’ so far as the
persons, entities or denominations whose fundamental rights are
taken away or abridged. Still, there is no reason why the law should
be void or ‘still-born’ as against those who have no fundamental
rights (meaning non-citizens).”
Do Personal Laws Fall under the Ambit of Article 13(3)?
Article 13(3)(a) includes any law including ordinance, order, bye-laws, rule,
regulations, notification, custom or usage having in the territory of India the force
of law. In a nutshell, the Clause is not exhaustive and shall contain all those laws
that violate fundamental rights.
Article 13(3)(b) includes laws passed or made by the legislature or other
competent authority in the territory of India before the commencement of this
Constitution and not previously repealed. It means the same thing as ‘existing law’
defined in Article 372 of the Indian Constitution.
Comprehensively and with a combined reading of both Clauses (2) and (3) (a) of
Article 13, Clause (2) states that the State shall not make any law that violates the
fundamental right of the individual. Clause (3) (a) states law includes custom and
usage. The issue is custom and usage in a territory cannot be made by the
legislature thereof. Then how is it included in the inclusive definition of law?

But here is where the language of the statutes is interpreted differently. And even
the interpretation, in some ways, remains inconsistent.

In State of Bombay v. Narasu Appa Mali (1951), 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).
Hon’ble. Justice M.C. Chagla felt that Article 13 (3) (a) uses the expression ‘law’
and not ‘personal law’. The issue was whether personal law should be included in
Article 13 (3) (a) or Article 13 (3) (b). The former includes statutory law, and the
latter is far wider, including all law enforced after 1950. 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.

However, in Ahmedabad Women’s Action Group v. Union of India (1997), the

Supreme Court held that if religious personal laws are a part of the codified laws
by the legislature, then the codification must be for the fundamental rights.
The quandary that begins from Narasu judgement continues to loom in the Triple
Talaq judgement and even after that—further confusing the ambit and definition of
law and ‘law in force’ in Article 13(3)(a) and (b).

In 2017, in Shayara Bano v. Union of India And Ors. (also called Triple Talaq
judgement) the Hon’ble Supreme Court had an opportunity to observe the
inclusion of personal laws in Article 13. But the Court believed that since Shariat
law is a statutory law codified by the central legislative assembly, the rights with
Muslim men to pronounce triple talaq and get divorced is arbitrary and
unreasonable.
Justice Fali Nariman and J. Lalit were of the opinion that the 1937 Act fell under
the expression ‘law in force’ under Article 13(3)(b). And therefore, the Triple
Talaq law was pronounced inconsistent with the Indian Constitution. Justice
Nariman also doubted the interpretation of Narusu Judgement that drew a
difference between the two kinds of laws.
In 2018, Indian Young Lawyers Association v. The State Of Kerala, also called
the Sabarimala Case, dealt with the same question. The Court, in this case, said
that the ‘individual’ is at the heart of the Indian Constitution, and as far as any law
affected the individual, it could fall under Article 13(3). The Court observed:
“As per Article 13(3)(a) of the Constitution, “law” includes custom
or usage, and would have the force of law.”
The Court had said that prohibiting women of 10-50 years of age in the Sabarimala
Temple under a custom is not reasonable or ‘universal’. And all valid customs
must be ‘reasonable, certain and continous’.
Looking At Article 13 Vis-À-Vis The Basic Structure
Doctrine
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 I. C. Golaknath & Ors vs the State Of Punjab, the Court dealt with whether
exercising power under Article 368 can nullify the effects of Article 13 of the
Indian Constitution; and whether Parliament had the power to amend Part III of the
Constitution.
In its order, the majority Bench of six to seven held that every constitutional
amendment also partakes the same features as a normal statute. Therefore, it is
covered under Article 13 (3) (a).

Once it is covered, the limitation of Article 13 (2) comes into the picture, which
states that ‘the State shall not make any law which takes away or abridges the
rights’. Then no such amendment could be made that abridges any part of the
Constitution.

Although the Court in the Golaknath case held that the Parliament had no power to
amend Part III of the Indian Constitution, the Parliament responded by enacting the
Twenty-fourth Constitutional Amendment. Using which the Parliament inserted a
new Clause to Article 13; Article 13(4).

Article 13 (4) read:

“Nothing in this article shall apply to any amendment of this

Constitution made under Article 368 Right of Equality”
The Validity of the Twenty-Fourth Amendment was further challenged
in Kesavananda Bharati v. State Of Kerala And Anr (1973). In which a
majority Bench of 7 to 6 overruled the Golak Nath case.
The Hon’ble Court held that the power to amend was prior to the Twenty-Fourth
Amendment (Article 368). It further observed:

“The Amendment just made it explicit and declaratory. The term

“Amendment” per se postulates that the original Constitution must
survive with its basic features”.
Hence, the basic features were enumerated by J. Sikhri, which, however, was not
exhaustive. These Basic Features, if touched upon, will declare the law or the Act
to be void and accordingly unconstitutional.
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

This piece has also implicitly applied the importance of judicial review,
responsible for clearly reading Article 13 to shield fundamental rights. Although
the case laws interpreting Article 13 has been inconsistent, it does answer some
important questions.