Fundamental rights are considered to be on the level of God thus no
one cannot amend them
. Article 13 of the constitution do upholds the supremacy over Indian
constitution and do paves the way to judicial review. This prescription do
enables us to review the pre-constitutional and existing laws.
intervention of the judiciary in constitutional matters is a debatable topic,
yet in most of the cases, the power of judiciary is considered to be the supreme
and is summoned to guard and enforce the fundamental rights guaranteed in the
Indian constitution under part III.
Meaning and scope
through this article (article 13), the parliament and state legislatures are
being terminated from making such laws that may infringe or take away the
fundamental rights that are being guaranteed by the Indian constitution itself.
The pre- constitutional laws may not be able to meet the changing and
developing needs of today's world, therefore article 13 do gives the power to
the supreme court and high court of India to re-write the pre-constitutional
laws, so as to make the laws meet the changing conditions of today's lifestyle
Similarly, the laws made after adopting the constitution must prove
their similarity with the pre-constitutional laws, then only they would be
considered as valid otherwise they would be assumed to be void. Part III of the
constitution do exist with this objective that the rights and freedom of people
do gets the protection from the arbitary invasions of the state.
Introduction to article 13
Article 13 of the constitution do talks about the four principles relating to
fundamental rights. Fundamental rights do exist from the date on which the
Indian constitution came into force i.e on 26th January 1950 hence fundamental
rights became operative from this date only.
article 13(1) talks about the pre-constitutional laws i.e the day from which the
constitution came in existence there were many laws in the country and when the
constitution came into existence fundamental rights do came, therefore the laws
before the existence of the constitution must prove their compatibility
with the fundamental rights, only then these laws would be considered to be
valid otherwise they would be declared to be void.
For example article 15 of the
constitution do gives the right to education to all without any discrimination
on the basis of caste, sex, religion, etc, but an Education act which came in
existence in 1930 says that:
A particular group of kids would not be provided
education on the basis of their caste'. As this particular clause of the act is
inconsistent with that of the fundamental rights therefore it is declared to be
null and void.
Moreover article 13(1) is prospective in nature but not
retrospective i.e the article will be in effect from the day when constitution
came in effect ..(26th jan.,1950) and the person who committed offence
afterwards will be prosecuted according to the laws of Indian constitution but
not according to the pre-constitutional laws.
Keshva Madhav Menon v. State of Bombay, Air 1951
In this case the petitioner published a pamphlet according to the
pre-constitutional laws in 1949 but as the Indian constitution came in effect
from 1950 it gave the freedom of speech and expression under article 19 of the
Indian constitution, therefore the apex court said that the petitioner's trial
must go on as the benefit of article 13 would not be given to him because
article 13 is not retrospective in nature:
Doctrine of severabilityThe doctrine says that if some parts of the statue 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.
A.K Gopalan v. State of Madras, air 1950
In this case section 14 of Preventive detention act,1950 was challenged. Section
14 of the act says that if any person is being detained under this act then he
or she may not disclose the grounds of his or her detention in court of law,
this particular statement is inconsistent with that of fundamental rights as per
article 22 of the Indian constitution, thus if we do apply the doctrine of
severability here so the whole act (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.
Doctrine of eclipseThe doctrine says that if some laws are violating fundamental rights , so they
would not be declared void ab-initio but would be unenforceable for a time being
i.e such laws are over-shadowed by the fundamental rights, thus in the case of
non-citizens of India the law may be applicable.
Here doctrine of severability (discussed above) says that all the pre-existing
constitutional laws are to be filtered out in respect with that of the
fundamental rights so as to make them valid and the laws which do not respect
the fundamental rights would not be declared void completely but would be over
shadowed by fundamental rights and in future if any amendment is made related to
such a law, it becomes valid provided that the pre-constitutional law must be
consistent with that of the fundamental right.
Introduction To Article 13(2)
article 13 (2) talks about the post constitutional laws i.e it says that once
the constitution is framed and came in effect then any of the state may not make
laws that takes away or abridges the fundamental rights of an indivisual and if
done so then it would be void till the extent of contravention.
State of Gujrat v. Ambika mills, air 1974
Here a 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.
Introduction To Article 13(3)
article 13(3) talks about the meaning of law i.e the laws whether by laws,
notifications, rules, regulations, customs, usage, etc if do effect the legal
rights of the citizens do come under the definition of law, thus would be
considered as laws under article 13 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 13.
Introduction To Article 13(4)
This clause of article 13 do says that any of the amendment made in article 368
of the Indian constitution would not be challenged under article 13 moreover if
the amendment so made would be against the fundamental rights then also it
would not be challenged under article 13.
Article 13 (4) gave birth to a landmark doctrine to our constitution moreover it
prohibits the parliament to make laws or amendments which are inconsistent to
the fundamental rights.
The doctrine being mentioned above is the Basic Structure Doctrine.
While discussing about this doctrine two most important articles do comes into
the picture, one is article 13, which acts as the protector of the fundamental
rights and another one is article 368, which holds the power to amend the
constitution. The doctrine is merely a big tussle of power between the judiciary
and the parliament of India i.e as the power of amending the laws exercised
under article 368 do gives the power to the parliament to amend the
constitution, fundamental rights and the preamble too? or the Indian judiciary
is supreme which do acts as the protector of law.
Shankari prasad case (Shankari prasad v. Union of India
, air 1951) here in
the case a question arose that as per article 13, if parliament do makes any law
which is inconsistent to fundamental rights would be considered invalid but if
any amendment done by parliament under article 368 would be considered as valid
or not? So, while answering this question it was held that in article 14 only
the ordinary laws are being talked about but not the constitutional amendments .
Another case came into picture which was I.C Golaknath case (Golaknath v. State
air 1967) in this case the court over-rulled it's judgement given
in Shankari prasad case by saying that:
Article 13 do includes the ordinary
laws and the constitutional amendments too which means parliament cannot make
any law or make any constitutional amendments which is inconsistent to
In order to nulify this judgement parliament passed 24th
amendment, 1971 by saying that:
Any amendment made under article 368 would
not be considered as law and hence article 13(4) is different from the word
used in article 13(3) then again this 24th amendment was challenged in the
case of Kesavananda Bharti case (Kesavananda bharti v. state of Kerala
1973) in the following case the apex court was of the view that: 24th
amendment is valid and the judgement give in Golaknath case
is also valid but a
basic structure of the constitution do exist which cannot be amended hence the
parliament cannot even touch them i.e the Supreme court introduced a basic
After the introduction of the basic structure of the constitution, the
parliament introduced 42nd amendment, 1975 which is also called as the mini constitution
or the constitution of Indra (Indra Gandhi)
it gave the power to the parliament to amend any law in the constitution
including the basic structure of the constitution, but this was again over-rulled
in Minerva Mills case (Minerva Mills v. Union of India
, air 1980), in this
case the court was of the view that judicial review is the basic feature of the
constitution hence cannot be amended therefore any amendment made by parliament
will go through the process of judicial review.
Written By: Anirudh Gupta
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