13. Laws inconsistent with or in derogation of the fundamental rights:
- 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
- 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.
- 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previously repealed, notwithstanding that any such law or any part thereof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
- 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
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
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
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
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
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
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
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.
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
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).
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
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:
L.Chandra Kumar v. union of India
- Supremacy of Constitution
- Democratic and republic government
- Secular character
- Separation of power
- Federal character
, 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.