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Article 13 Of Indian Constitution Easy Explanation

Article 13

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 law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas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

Article 13 aids the court and citizens to keep the powers of the legislature under preview. Article 13 of the Indian Constitution describes the means for judicial review.
It enjoins a duty on the Indian State to respect and implement the fundamental right. And at the same time, it confers a power on the courts to declare a law or an act void if it infringes the fundamental rights.

The judiciary plays a very important role as a protector of the constitutional rights. The primary responsibility for implementation of the rule of law lies that the judiciary. It is the significance of judicial review, to ensure that democracy is inclusive and there is accountability of everyone who wields or Exercises public power.

The principle of judicial review becomes an essential feature of Indian constitution. The power of judicial review is incorporated in article 226 and 227 of the Constitution as the high courts are concerned and in regard to Supreme Court article 32 and 136 of the Constitution.

Judicial review is the power of go to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void.

There is a saying that power corrupts a man and absolute power corrupts absolutely. Therefore any act of the ordinary lawmaking bodies which country wins the provisions of the supreme law must be void

Background of judicial review
The doctrine of judicial review was for the first time propounded by the Supreme Court of America. Originally there was no express provision for judicial review under Constitution of America. For the first time in 1803 the Supreme Court in William Marbury versus James Madison confirms the legal principle of judicial review, the ability of the supreme Court to limit congressional power by declaring legislation unconstitutional.

The acts of congress in conflict with the Constitution or not law and therefore not binding to the quotes and that the judiciary is responsible always to uphold the Constitution.


Article 13(1) existing laws inconsistent with the Constitution

All laws in force which clash with the exercise of fundamental rights conferred by part III shall to the extent be void.
This does not make the existing laws which are inconsistent with the fundamental rights void ab initio. The entire part III of the Constitution is prospective in nature.

It is not possible to impeach the validity of that part of the proceeding which had taken place under the inconsistent law prior to the commencement of the Constitution.

There for if any subsequent point of time the inconsistent provision is amended so as to remove its inconsistency with the fundamental rights, the amended provision cannot be challenged on the ground that the provision had become dead at the commencement of the Constitution and cannot be revived by the amendment.

All acts done under the law since the amendment will be valid notwithstanding the fact of inconsistency before the amendment. It is known as the doctrine of Eclipse.

Any action taken under any law which was valid at the time when such action was taken (prior to the coming Into force of the Constitution) cannot be challenged as unconstitutional.

A person whose interest had been lawfully put to an end before the Constitution came into force is not entitled to invoke the protection.

Article 13 is the guardian of Rights mentioned in Part III of our Constitution. Clause (1) of the said Article emphasises that all inconsistent existing laws become void from the commencement of the Constitution.

Article 13 (1) was first interpreted by the Supreme Court in adjudicating whether Article 13 had any retrospective effect as far as laws inconsistent with the fundamental rights were concerned.

Article 13(2) of the Indian Constitution says that the State must not make laws that are not in ‘consonance' with the Constitution. And if the law drafted intervened with an individual's fundamental rights, the said law will become void to the extent of the contravention. This is an express ground for judicial review after legislation.

Any law made by any legislation or other authority after the commencement of the Constitution which contravenes any of the fundamental rights shall to the extent of the contravention be void.

The distinction from clause (1) and clause (2) is that former declares the law void and latter declared the law void ab initio

The expression shall be void does not mean that any inconsistent law becomes void without any declaration from the court that effect.

Who can challenge the constitutionality of a law:

  • Person whose rights are directly affected by law.
  • Person who have sustained or immediately in danger of sustaining some direct injury as a result of enforcement of the statute.
Article 13(3)(a) includes any law including ordinance, order, bye-laws, rule, regulations, notification, custom or usage having in the territory of India the force of law. In a nutshell, the Clause is not exhaustive and shall contain all those laws that violate fundamental rights.

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.

The definition of law is not exhaustive and it includes not only laws made by the Indian legislature but also English rules of common law as applied in India, subordinate legislation such as order, by-laws, rules, regulation, notification as well as personal law, custom or usage having the force of law.

Article 13(3)(b) includes laws passed or made by the legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed. It means the same thing as ‘existing law' defined in Article 372 of the Indian Constitution.

In 2018, Indian Young Lawyers Association v. The State Of Kerala, also called the 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).

Article 13(4)
This clause was inserted by the 24th constitutional amendment act of 1971.
This constitutional amendment was passed to override the effect of Golak Nath v. State of Punjab judgement.

Golak Nath case held that constitutional amendment passed according to article 368 is a law within the meaning of article 13.
24th amendment act 1971 override this judgement and declare that amendment under article 368 is not law within the meaning of article 13.

However 24th amendment act 1971 was declared void in Minerva Mills case, where it was stated that amendment under article 368 is law within the meaning of article 13 and if it contravenes fundamental rights it can be declared void.

Keswananda Bharati v. State of Kerala 1973

The Supreme Court of India propounded the basic structure doctrine according to which it said the legislation can amend the constitution but it cannot violate the basic structure.
However there is no definition of basic structure of the Constitution.

SM Sikri, chief Justice mention few basic features:

  1. Supremacy of Constitution
  2. Democratic and republic government
  3. Secular character
  4. Separation of power
  5. Federal character

L.Chandra Kumar v. union of India, Held that the power of judicial review over legislative action vested in High Court under article 226 and in the Supreme Court under article 32 of the Constitution and it is the integral and essential feature of Constitution constituting basic structure.

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