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Article 13 of the Indian Constitution – challenges and evolution

Providing citizens with fundamental rights is not enough for governance, It must make sure that those rights are being implemented and protected. Article 13 of the Indian constitution does the same thing. Part 3 of the Indian constitution provided fundamental rights to every citizen and to protect those rights, Art 13 has been included.

The article provides for judicial review for all the legislatures. This article is a tool to ensure the implementation of the rights. This article protects the fundamental rights of every citizen from being infringed by the state.

It upholds the supremacy of fundamental rights over the state's legislative power. This article also makes the legislature accountable to the judiciary for the laws it makes. It gives power to the judiciary to review the laws made by the state.

The draft Constitution of India 1948 vs. Constitution of India 1950
In the draft constitution of India, 1948 clause 2 of article 13 allowed the state to make laws inconsistent with fundamental rights for removing any inequality, disparity, disadvantage or discrimination arising out of any existing law. But this part of the clause was removed from the Constitution of India 1950.

Clause 3 of article 13 defined only 'law' in the draft constitution whereas in the constitution of India 1950 it defined both 'law' and 'law in force'.

After debates and discussions in the constituent assembly the sentence 'unless the context otherwise requires' is added to clause 3 after the words 'In this article' to remove the confusion of different definitions.

Clause 4 of this article has been into many controversies which states that nothing in this article shall apply to any amendment of this constitution made under article 368. This clause was introduced by the 24th Amendment Act.

All the clauses of this article have been discussed in many cases and they have been into different controversies and challenged in many cases.

Clause 1 of article 13
It states that all laws in force in India before the commencement of the Indian constitution will become void to the extent they infringe on fundamental rights. Even though this clause does not provide a retrospective effect for this article it has a prospective effect only.

This clause was challenged in the case of Keshava Madhava Menon vs. the state of Bombay in 1951. In this case, the petitioner faced prosecution for the violation of sections 15(1) and 18(1) of the Indian Press (emergency powers) Act, 1931. While the proceedings were pending, the constitution of India came into force.

Later, in this case, the retrospective prosecution for the violation of the Indian Press (Emergency Powers) Act, 1931 during the pendency of the trial after the constitution of India came into force was questioned and they contended that any law inconsistent with the constitution should be declared void ab initio.

It was held that article 13(1) of the Indian constitution does not have retrospective operation and did not intend to give it such effect. Emphasized that the fundamental right for the citizen is granted only after the commencement of the constitution, therefore, questions regarding the inconsistency of existing laws could only arise from that date onwards.

As the appellant does not possess the fundamental rights at the time of occurrence of the offence he cannot claim relief from the rights that were not in existence at the time. They held that even if a law had become void under Article 13(1) of the Indian constitution, it could not be applied to the ongoing cases. The focus should be on the state of law at the time the offence was committed.

Clause 2 of article 13
Clause 2 of Article 13 of the Indian constitution prohibits the state from making any laws that are inconsistent with fundamental rights. And if any law is made in contravention of fundamental rights. The law shall become void to the extent of the contravention.

The question of whether a non-citizen could claim rights under this article is being challenged in the case of the state of Gujarat and another vs. Shri Ambica Mills Ltd. It was held that the rights can only be claimed by the person whose fundamental rights are taken away or abridged by law. So non-citizens (the company) cannot claim rights under this article as it has no fundamental rights.

Clause 3 of article 13
Article 13(3)(a) states the definition of 'law' and article 13(3)(b) states the definition of 'law in force'. According to this article, the law includes ordinances, orders, bylaws, rules, regulations, notifications, custom or usage in the territory of the force of law. The question of whether personal laws are included in the ambit of law defined in Article 13(3)(a) has been challenged in many cases.

One of the cases is the state of Bombay vs. Narasu Appa Mali which challenged the validity of the Bombay Prevention of Bigamous Marriages Act 1946. In this case, it was held that personal laws could not be part of the inclusive definition of 'law' under Article 13. It was held that the expression 'personal law' is not used in the definition because personal laws are left out of the ambit of part 3 of the Indian constitution by the framers.

In the case of Ahmedabad Women's Action Group vs. Union of India, the court upheld the judgement of the state of Bombay vs. Narasu appa mali case.

In the landmark case of Shayara Bano vs. Union of India. Which challenged Muslim personal laws. The court believed that since the Shariat law is a statutory law codified by the central legislative assembly, the pronouncement of triple talaq and getting a divorce is arbitrary and unreasonable.

Indian Young Lawyers Association vs. the state of Kerela also called the Sabarimala case, challenged the same question. The court observed that under article 13(3)(a) of the constitution, the law includes custom or usage of the prohibition of women of age 10-50 in the Sabarimala temple comes under unreasonable custom. It was also held that as far as any law affected the individual, it could fall under Article 13(3).

With all the series of cases challenging the same question, it is still in a state of confusion and unclear.

Clause 4 of article 13
This clause states that nothing in this article shall apply to any amendments made under article 368, which is added by the 24th Amendment Act. Article 368 of the Indian constitution gives the legislature the power to amend the constitution with the process provided in the article. With Article 13(4) the amendment power of the state is made superior to the fundamental rights of the citizen.

The question of amending the constitution against fundamental rights is raised in the case of Golaknath with which the 24th Amendment act was introduced.

If we look into the case of, 1967 Golaknath vs. the state of Punjab, this case challenged the validity of the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act under Article 32 of the Indian constitution which gives rights to every citizen of India to seek constitutional remedy from the SC of they have been deprived of their fundamental rights. The above-mentioned land reform acts are included in the 9th schedule by the 17th CAA. The validity of the 17th CAA was also challenged. 1st and 17th CAA was previously challenged by Sankari Prasad's and Sajjan Singh's case respectively and the court upheld the validity of these amendments.

In the case of Golaknath, the court held that the parliament cannot amend in contravention of Article 13 of the Indian constitution.

24th Constitutional Amendment Act,1971
The 24th CAA was enacted by the then Congress government headed by Indira Gandhi, to abrogate the Supreme Court ruling in the Golaknath case. This CAA amended Article 13 and Article 368 of the Indian constitution. This amendment added to clause 4 to article 13 which says 'nothing in this article shall apply to any amendment of this constitution made under article 368.

Clause 3 was also added to article 368 of the Indian constitution which reads 'nothing in article 13 shall apply to any amendment made under this article'.

Basic Structure Doctrine
At the time of the 24th amendment, the landmark case of Keshavananda Barati was pending which challenged the Land Reforms Act and the 25th and 26th amendments were also passed at this time which curtailed the fundamental rights of citizens. In this case, Kesavananda Barati filed a petition challenging the said amendments. This led to the landmark judgement and introduction of the basic structure doctrine which limits the amending power of parliament

The doctrine of basic structure says that certain fundamental features of the constitution cannot be amended by the parliament. Features like supremacy of the constitution, the rule of law, independence of judiciary so on. The list of features is not fixed features are added to the list from different cases and judgements. Judiciary to review the amendments made by the parliament.

In conclusion, Article 13 of the Indian Constitution stands as a cornerstone in safeguarding the fundamental rights of Indian citizens. It provides a framework for judicial review, ensuring that laws do not infringe upon these rights. Over the years, its evolution and the emergence of the Basic Structure Doctrine have solidified its role in preserving the core principles and values of the Constitution. Article 13 remains a crucial instrument in maintaining the delicate balance between legislative authority and individual liberties in India.

Award Winning Article Is Written By: Ms.Prathyushna Thota
Awarded certificate of Excellence
Authentication No: SP363523724955-23-0923

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