ARTICLE 13 of the Constitution of India

 

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Article-13: Laws inconsistent with or in derogation of the Fundamental Rights:

CLAUSE (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

In Keshavan Madhava Menon Vs The State Of Bombay On 22 January, 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.

In other hand, the Supreme Court observed that “There is no Fundamental Rights that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So for as Acts are concerned the law exists notwithstanding that it does not exist with respect to the future exercise of the Fundamental Rights.”

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Doctrine of separability

Shall be declared void to that extent of such inconsistency:-

If some parts of the statue/Act are inconsistent with that of the fundamental rights, then the whole statue would not be declared to be void but that particular clause would be treated to be void by the court of law. all the pre-existing constitutional laws are to be filtered out.

In A.K. Gopalan Vs The State Of Madras, Air 1950, Section 14 of Preventive detention Act,1950 was challenged according to this section if any person is being detained under this act then he may not disclose the grounds of his or her detention in court of law. Thus, if we do apply the doctrine of severability here so the whole act of (Preventive detention Act,1950) would not be declared as void but only section 14 of the act would be declared as void as it is inconsistent with the fundamental rights.

In The State Of Bombay And Another Vs F.N. Balsara On 25 May, 1951, the Court was held that the provision of the Bombay Prohibition Act, 1949 where the entire act was declared as void and it did not affected the rest of the part and there was no need to declare the whole statute as void.

In case of Kihoto Hollohan vs Zachillhu And Others on 18 February, 1992 this case is also known as the “defection case”. In this case the paragraph 7 of the Tenth Schedule which was first inserted by the 52^nd Amendment Act of 1985 was challenged and declared as unconstitutional because it had violated the provisions under Article 368 (2). But, the whole part was not declared unconstitutional. So, the rest of the Tenth Schedule excluding paragraph 7 was upheld by the Constitution.

Doctrine of ECLIPSE

The doctrine of Eclipse is on the principle that a laws which violating fundamental rights, is not nullity or void ab-initio but becomes only enforceable.

In Bhikaji Narain Dhakras and Ors v. State of Madhya Pradesh, air 1955, Berar Motor Vehicles Act 1947 challenged Authorized state government to monopolize motor business When enacted valid After 1950 became invalid Art. 19(1)(g) In 1951, art 19 amended and clause (6) and authorised monopoly of government.

CLAUSE (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.

The main objective of Article 13 is to secure the paramountcy of the Constitution specially will regard to Fundamental Rights. This clause talks about only post-constitutional law.

In Deep Chand vs The State Of Uttar Pradesh,15 January, 1959, the Court held that the doctrine of eclipse does not apply to post constitutional law, a subsequent constitutional amendment cannot revive it. Post constitutional law is nullity and void ab initio at the inception.

In Mahendra Jain vs The State Of Uttar Pradesh, 1963,  the Court held that the doctrine of eclipse applies only to pre-constitutional law, Article 13(1) and not to post-constitutional law Article 13(2). Thus, doctrine of eclipse does not apply to post constitutional laws.

In The State Of Gujarat And Another vs Shri Ambica Mills Ltd., 26 March, 1974, Certain labour welfare fund Act was challenged, as certain sections in it were against the fundamental rights. Since the fact that the laws made by the state after the constitution is framed would be declared void if those laws are against the fundamental rights, but here the question arose that fundamental rights are only granted to citizens but what will happen in the case of non-citizens or a company (company here is the respondent i.e Ambika mills). It was held by the apex court that since the fundamental rights are only granted to the citizens but not to the company or any non-citizen, therefore the labour welfare fund Act is valid.

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).”

Doctrine of Waiver

The Doctrine of Waiver or the Waiver of Rights is a concept that is founded on the idea that a person is his own best judge and that he has the freedom to renounce the enjoyment of rights conferred on him by the state.

However, the individual must be aware of his or her rights, and the waiver must be voluntary. The obligation falls on the State to make sure that the Fundamental Rights of a person are not infringed and give maximum protection to these rights.

The term “waive” means “to give away” or “surrender”. In the Indian Constitution, there is no such Doctrine because these fundamental rights are a part of the Nation’s public policy, and the state is obligated to protect these rights at all costs.

In Behram Khurshed Pesikaka v. The State of Bombay, 1954, the court observed that the fundamental rights are based on such principles which are embodied in the preamble of the Indian Constitution. Fundamental rights are a matter of public policy and the same cannot be waived. The doctrine of waiver has no application on matters that are a part of constitutional policy.

In the case of Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors, the Court ruled that anybody has the right to waive a legal right or privilege that has been bestowed on him. In the event of a tenant-owner dispute, for example, if a notice is provided and no representation is made by the owner, tenant, or sub-tenant, it is a waiver of opportunity, and that party cannot be permitted to change their mind afterward.

CLAUSE (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;

But there are two exceptions to the same, firstly the administrative and the executive orders are being covered under article 13 but if their nature is just to give instructions or guidelines then they would not be covered under article 13. Second exception is the personal laws which are not being covered under article

·       Ordinances under 123 and 213

·       personal laws excluded

Law means law made by the legislature and includes intra virus statutory orders made in the exercise of powers conferred by statutory rules but not administrative orders.

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.

Laws passed or made by a Legislature or other competent authority in the territory of India Includes administrative orders by executive 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.

In Indian Young Lawyers Association v. The State Of Kerala, is also known as “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).

In, Shayara Bano v. Union of India and Ors., 2017, (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.

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.

CLAUSE (4):-

Nothing in this article shall apply to any amendment of this Constitution made  under article 368. Inserted by the Constiution(24th amendment) Act, 1971.

The Validity of the Twenty-Fourth Amendment was further challenged in Kesavananda Bharti v. State of Kerala, AIR 1973 . In which a majority Bench of 7 to 6 overruled the Golak Nath case. Gave birth to a landmark doctrine- “Basic structure doctrine”.

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.

Considered for the first time in Shankari Prasad v U.O.I., 1951 and the court held that the word Law under Art. 13(2) does not include Constitutional amendments/law made by Parliament under Art. 368. and this judgment was followed in the case of Sajjan Singh vs State Of Rajasthan, 1964.

In case of I. C. Golaknath & Ors vs State Of Punjab & Anrs., 1967 the Supreme Court overruled the decision of the both cases Shankari Prasad v U.O.I. and  Sajjan Singh vs State Of Rajasthan, 1964  and held that law includes every branch of law- statutory, constitutional etc.-any amendment which takes away Fundamental Rights will be declared void. 24th Amendment 1971 new clause added in Art. 13 as 13(4).

Judicial review

First time propounded by the Supreme Court of America in the case of Marbury vs Madison. Judicial Review can be understood as a form of court proceeding, usually in the Administrative Court where the lawfulness of a decision or action is reviewed by the judge. Where there is no effective means of challenge, judicial review is available.

Judicial review plays an important role as a protector when the executive, judiciary and legislature harm the Constitutional values and deny the rights. The judicial assessment is considered as an indispensable feature in the country. In India, there is parliamentary form of democracy where every section of people is involved in decision making and policy making process. It is true that the primary duty of the court to apply rule of law and is the groundwork of social equality. By exercising new powers of Parliament, rule of law which is to be applied by the court cannot be modified.

If any person’s Fundamental right is violated he can approach the court under Article 32 or Article 226 of the constitution. Article 251 and 254 states that if there is any inconsistency between the union and state law, the law of union shall prevail and the state law shall be deemed void. Power of Judicial Review is vested in many articles such as 13, 32,131-136, 143, 226, 145, 246, 251, 254 and 372. 

In Mitthu v. State of Punjab The Supreme Court of India has struck down Section 303 of Indian Penal Code, 1860. This section had made death sentence mandatory. In case Article twenty-one of the Indian Constitution was illustrated by the S.C.I. complete its frequent pronouncement.

Fundamental Rights available against State and not against private individuals:-

Private rights being available only against the state and not against private individuals raises an issue, considering Article 15(2) which is discrimination, here if many people suffer from discrimination done by other individuals and taking up Article 17 which talks about untouchability is also done by private individuals. Article 23 which is for trafficking and Article 24 which prohibits the employment of children in hazardous industries should also be made available against a private individual.

If this is not made available against the private individual then the main purpose of the law to provide justice will get defeated.