.jpeg) |
| www.realstudieshub.com |
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.”
.jpeg) |
| www.realstudieshub.com |
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 52nd 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.
.jpeg)
.jpeg)
.jpeg)
.jpeg)