Constitution of India 2022 Article 13

ARTICLE 13
Article 13. Laws inconsistent with or in derogation of the
fundamental rights. —
(1) All laws in force in the territory of India immediately
before the commencement of this Constitution, in so far
as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent
of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(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Constitution and not previously repealed,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.

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Constitution of India 2022 Article 13

What does Article 13 do?

Article 13 tells us ‘What laws are not valid’
i.e whatever is inconsistent or in contravention or abridges Part III of constitution
are void laws.
Supreme Court and High court can declare the laws in violation of Article 13 as
void by using its power of ‘Judicial Review’
13(4) Amendments are not covered (but the amendment should not be in violation of Basic
Structure of Constitution)

Before you move on to the 2 doctrines , read this, mentioning here because
these are also related to the same thing i.e. repealing of old contravening and
inconsistent law
Article 372. Continuance in force of existing laws and their adaptation –
Subject to Article 395 and other provisions, all laws in force in the territory of
India immediately before the commencement of the Constitution shall
continue in force until altered or repealed or amended by a competent
Legislature

This means the laws inconsistent or in derogation part III will not
automatically be repealed, they have to be amended or repealed by
parliament or legislature

Article 395. Repeals. - The Indian Independence Act, 1947, and the
Government of India Act, 1935, together with all enactments amending or
supplementing the latter Act, but not including the Abolition of Privy Council
Jurisdiction Act, 1949, are hereby repealed.

These Acts are automatically repealed

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Constitution of India 2022 Article 13

Doctrine of Severability – To separate

The Doctrine of severability is also known as the doctrine of separability. It means
that an Act may not be void as a whole, only a part of it may be void and if that part is
severable from the rest which is valid, and then the rest may continue to stand and
remain operative.

A.K. Gopalan v. State of Madras (1950)

Section 14 Preventive detection act was inconsistent with Fundamental

Rights, so it was removed, but this removal did not affect the validity of
the rest of the act.

The State of Bombay v. FN Balsara (1951)

The Court declared Section 13(b) of the Bombay Prohibition Act of 1949
as void because it violated Article 19(1) (f) of the Constitution. The Court
again held that only the part of the statute that is violative of Part III is
inoperative and not the whole Statute.

R.M.D.C v. Union of India (1957) - Nuances of Doctrine of Severability was

explained in detail:

1. The intention of the legislature is the determining factor. The test to

be applied is whether the legislature would have enacted the valid part
if it had known that the rest of the statute was invalid. In determining
the legislative intent on the question of separability, it will be legitimate
to take into account the history of legislation, its object, the title and
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. If they are so
distinct and separate that after striking out what is invalid, what
remains is in itself a complete code independent of the rest, then it will
be upheld notwithstanding that the rest has become unenforceable.
3. Even when the provisions which are valid and distinct and separate from
those which are invalid, if they all form part of a single scheme which is

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Constitution of India 2022 Article 13

intended to be operative as a whole, then also the invalidity of a part

will result in the failure of the whole.
4. Likewise, when the valid and invalid parts of a statute are independent
and do 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
5. 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, as otherwise
it will amount to judicial legislation.

Kihoto Hollohan v. Zachilhu (1992) (Defection Case)

Court Declared paragraph 7 of the Tenth Schedule (which was inserted

by the 52nd Amendment Act, 1985) as unconstitutional for violating the
provision under Article 368(2). It upheld the rest of the Tenth Schedule.

Doctrine of Eclipse – To hide

The doctrine of eclipse declares fundamental rights as prospective in nature.
According to Doctrine of Eclipse pre-constitutional law inconsistent with the
fundamental rights are not nullity or void ab initio but only remains unenforceable
i.e., remains in a dormant state.
These dormant laws are still enforceable for past rights and duties and also valid for
those who don’t get fundamental rights, like some fundamental rights are not
available to non-citizens (Articles 15, 16, 19, 29, 30)

Keshav Madhav Menon v. State of Bombay (1951)

The petitioner was prosecuted under the provisions of the 1931 act, the
Indian Press (Emergency Powers) Act, for publishing a pamphlet with no
permission. The case was still pending when the Constitution came into
force and thus raised questions regarding the prospective and
retrospective nature of Article 13(1) and the word “void”. The question
before the Court was whether the impugned Act was violative of Article
19(1) (a) and if so whether it should be declared void.

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Constitution of India 2022 Article 13

The Court held that the act is void but not retrospectively, and as the
petitioner was charged under the act before the enactment of the
constitution, the proceedings going on before the enactment of the
constitution will not be affected as the law is void prospectively and not
void-ab-initio.

Bhikaji v. State of M.P (1955)

The Doctrine of Eclipse was introduced and established in India with the
help of this case.

Certain Sections of Berar Motor Vehicle Act, 1947 empowered govt. to

take over motor transport business, these sections became violative of
Article 19, so article 19 eclipsed these sections, later due to
amendments in article 19 and those sections were no more in violation
of article 19, so those sections will become active again

Deep Chand v. State of Uttar Pradesh (1959)

It was clarified in regard to Doctrine of Eclipse that any post

constitutional law infringing fundamental rights are void ab initio and
the doctrine of eclipse cannot apply. A clear distinction between the two
clauses of Article 13 of the Indian Constitution was made. Under clause
(1) a pre-Constitutional law subsists except to the extent of its
inconsistency with the provisions of Part III, whereas as per clause (2),
no post-Constitutional law can be made contravening the provisions of
Part III and therefore the law to that extent, though made, is a nullity
from its inception.

State of Gujarat v. Ambica Mills (1974)

Shri Ambica Mills was a company registered under the Companies Act
which filed the petition to declare certain provisions of Bombay Labour
Welfare Fund Act, 1953 as unconstitutional as it is violative of 19(1)(f)
‘right to property’, High court ruled in favour of Ambica Mills, but the
Supreme Court held that Article 19 is only available to citizens and
Ambica Mill is not a citizen. So, Doctrine of eclipse won’t apply to the
disputed law in regard to Ambica Mills.

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 Constitution of India 2022 Article 13

13(3) talks about what is law BUT but does it apply on Personal laws ?

State of Bombay v. Narasu Appa Mali (1952)

In this case, the High Court held that “personal law” is not included in
the expression “laws in force” used in Article 13(1) of the Constitution.
The Narasu Appa Mali judgement Still acts as a precedent but the opinion of
Justice Chandrachud in Sabarimala Judgement may be the first big step in
removing this precedent

Indian Young Lawyers Association vs State Of Kerala (2018)

It was held that As per Article 13(3), “law” includes “customs and usages
having the force of law”.

Justice Chandrachud , while refuting Narasu Case in

the Sabrimala judgment, said that the definition of “law” under Article
13(3) is an inclusive definition and it would be inappropriate to put a
restrictive interpretation upon terms of wider denotation. Going by the
scriptural texts, he decided on the inclusion of personal laws in “customs
and usages” under Article 13, and how they have been creating a
menace by not being subjected to judicial review for years.

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