The concept of human rights has been evolved from French
revolution 1789 and natural law philosophers Locke and Rousseau
propounded the theory of social compact to preserve these rights. The
idea of entrenching [ guaranteed rights cannot be taken away by
ordinary law] is to ensure that a person may have minimum
guaranteed freedom. Fundamental rights are that they may not be
violated , tampered or interfered with by an oppressive government.
Such fundamental rights are the foundation stone for democracy.
Fundamental Rights In India:
There are certain reasons that made our drafters make
fundamental rights unavoidable in our constitution.
- Firstly the main political party congress had been fighting for
these rights under British rule.
- Secondly India is a country with varied religious, cultural and
linguistic groups where a sense of security and confidence had to be
given to people.
The Supreme court in Pratap Singh v State of Jharkhand
(2005) 3 SCC 551 held that Part III of our constitution protects
substantive as well as procedural rights. It was being discussed for 38
days. Fundamental rights became operative from 26th January 1950.
Article 13 is the key provision as it gives teeth to
fundamental rights and makes them justifiable. It protects the people
where fundamental rights cannot be violated either by passing on a law
or through administrative action. Article 13 talks about four
principles relating to fundamental rights.
Doctrine Of Judicial Review:
Judicial review is an important factor in protecting
the constitutional rights and freedom when the
executive, judiciary, and legislature frame laws. The three principles
of judicial review are as follows:
- The Constitution is the supreme law of the country.
- The Supreme Court has the ultimate authority in ruling on
- The judiciary must rule against any law that conflicts with the
Article 13 (1) - Pre Constitutional Laws
All laws that were in force before the constitution
became operative in India are called pre constitutional laws. It is
prospective in nature and not retrospective. The framers of the
constitution clarified that those acts, rules, orders etc. passed in pre
independence shall be continued ,subject to the condition that such
laws should not violate the fundamental rights conferred in part III.
For example the Indian penal code 1860 was enacted
in 1860. Such all laws in force in India immediately before the
commencement of this constitution will be continued. However, if any
act or rules or sections or any law is inconsistent with the fundamental
rights such law ,act etc. is held void.
In Mithu vs State
(1983 CRLJ 811) the Supreme Court of India
quashed section 33 of the Indian penal code 1860, as unconstitutional
and removed it from the code.
People's Union for Civil liberties VS Union of India
(AIR 1997 SC 568) Telephone tapping case
The petitioner filed a writ petition under Article 32
alleging that in the telephone tapping by the telephone and police
department is violative of Article 19 and 21 there were several news
published in the newspapers that CBI was starting telephones of
politicians phones the union government tried to defend the telephone
tapping under Section 5 of the Indian Telegraph act of 1885 in the
interest of public.
The Supreme Court considered the writ petition as a PIL,
and gave judgement in favor of the petitioners. According to the
provisions of Article 13 , Section 5 of the Indian Telegraph Act ,1885 is
void , as it is against the Fundamental Rights , particularly against
Article 19 and 21.
This Article 13(1) gave rise to two doctrines called as:
- Doctrine of severability
- Doctrine of eclipse
Doctrine Of Severability:
The court here has clarified that only the invalid part of the law
shall be severed and declared invalid if it can be really separated (i.e)
once the invalid part is separated the valid part of law should be
capable of giving the legislature's intention otherwise the entire law
will be invalid. This is known as Rule of Severability.
In A.K. Gopalan v/s State of Madras
, A.I.R 1950 S.C. 27 the
Supreme Court ruled that where an act was partly invalid , if the valid
portion was severable from the rest , the valid portion would be
maintained , provided that it was sufficient to carry out the purpose of
In Jia Lal vs. Delhi Administration
The appellant was prosecuted for an offence under
Section 19(f) of the Arms Act,1878. In fact Section 29 of the same Act
provides that in certain areas, in which the petitioner was residing, it
was not necessary to obtain a license for possession of a firearm.
Therefore the petitioner did not obtain any license. Section
29 was challenged as ultra vires and unconstitutional as offending Article 14 and also Section 19(f) of the Arms Act 1878 on the ground
that the two sections were not severable.
The Supreme Court gave judgement on the question of
severability that Section 29 was Ultra vires, but not Section 19(1)(f).
Doctrine Of Eclipse:
An existing law inconsistent with the fundamental rights
becomes inoperative but it's not dead all together. So the laws made
before the commencement of the Constitution remain eclipsed or
dormant. It will be under the shadow of the Constitution. In case any
amendment of the Constitution removes the prohibition brought by
fundamental rights, it becomes active and effective again. This is known
as the Doctrine of Eclipse.
This Doctrine was first evolved in Bhikaji Narayan Dhakras
vs State Of MP
and 1955 SC 781
The Madhya Pradesh state legislature passed an act
in January 1950 (before the constitution) nationalizing the motor
transport before commencement of the constitution. The statue was
challenged by the petitioner under Article 19(1)(g). The Parliament
passed the fourth Constitutional Amendment Act 1955 on 27-4-1955
enabling the states to nationalize motor transport.
The supreme court
held that the statue of Madhya Pradesh state nationalizing the motor
transport in 1950 was cured by 4th Constitutional Amendment Act
1955 and therefore, the doctrine of eclipse has been applied and the
MP Act was held valid Deep Chand vs State of UP
(AIR 1959 SC 648)
The Uttar Pradesh state legislature passed an action 24-04-1955 nationalizing
the motor transport. In fact on that day the UP State
was not competent to make any law on motor transport, being it was
in the Central list.
The Parliament passed the4th Constitutional
Amendment Act 1955 on 27-4-1956 enabling the states to Nationalize
the motor transport. The Supreme Court held the statue made by the UP
state could not be cured and is void by the doctrine of eclipse, being
such statute was a post-constitutional one..
Article 13(2)-Post Constitutional Laws
Article 13(2) relates to future laws (i.e.) laws made after
the commencement of the constitution. After the constitution comes
into force the state shall not make any law which takes away the rights
conferred by Part III and if such a law is made, it shall be void to the
extent to which it curtails any such right.
Article 13(3) defines what law is and includes temporary
laws such as ordinances and permanent laws such as acts. It also
emphasizes that rules and regulations orders, by laws made by
statutory authority will be law. Non legislative sources like custom and
usage will also have the force of law. Article 12 states the definition
of state and Article 13 states the meaning of law and the legislatures
or any authority who are framing laws should keep in mind the
constitutional provisions of the constitution.
Article 13(4) was inserted by the 24th constitutional
amendment which was directly in conflict with Article 368 which
talks about power of parliament to amend the constitution. The result
of which gave rise to the doctrine of basic structure after a series of
judgements which solved the tussle between the power of judiciary and
the parliament of India.
Doctrine Of Basic Structure:
- Shankari Prasad vs Union of India AIR 1951 SC 458:
The validity of first amendment to the
constitution was challenged. The supreme court held that power to
amend constitution including fundamental rights is contained in Article
368.this decision was further being approved by a majority judgement
in Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.
- Golaknath vs State of Punjab AIR 1967 SC 1643:
The supreme court overruled the Shankari Prasad and
Sajjan Singh cases and said fundamental rights are outside the
amendatory process. It also said Article 368 lays the procedure and the
purpose for amendment.
- The 24th constitutional amendment act in 1971:
The Parliament introduces certain changes in Article 13 and Article 368 so that the power of the Parliament to
amend the fundamental rights has been asserted. Here the effect of
Golaknath case was nullified.
- Kesavananda Bharati vs State of Kerala AIR 1973 SC 1461:
The supreme court upheld the validity of the
24th constitutional amendment Parliament and amended any part of
the constitution including the fundamental rights but the court made it
clear that Parliament cannot alter the basic structure of the
- Indira Gandhi VS Raj Narain AIR 1975 SC 2299:
The appellant challenged the decision of the
Allahabad High Court who declared that the election was invalid.
Immediately the Parliament passed the 39th amendment withdrawing
the control of the supreme court over election disputes. Now the
exclusion of Judicial review in election disputes in this manner
damaged the basic structure.The doctrine of basic structure placed a
limitation on the powers of the Parliament to introduce substantial
alterations or to make a new constitution.
- The 42nd amendment act of 1976:
This amendment added two new clauses to Article 368 clause(4)- it says that no amendment of the Constitution
made before or after the 42nd amendment shall be questioned in any
Court clause(5) -says that there shall be limitation on the
constitutional power of the Parliament to amend by way of addition
variation or repeal the provisions of this constitution made under
- Minerva Mills vs Union of India A I R 1980 SC 1789:
The supreme court said that clauses( 4) and( 5) of Article 368 and Section 55 of the 42nd amendment act as
unconstitutional as it is damaging or destroying the basic structure of
- Waman Rao vs Union of India 1981 2 SCC 362:
The supreme court said that amendments
to the constitution made on or after 24.4.1973 by which the 9th
schedule was amended from time to time by inclusion of various acts
and regulations were open to challenge on the ground that they are
beyond the constitutional power of the Parliament and they damage the
of basic features of the Constitution or its basic structure.
Doctrine Of Waiver:
The doctrine of waiver of rights is based
on that a person has the liberty to waive the enjoyment of rights. This
Doctrine was discussed in Basheshar Nath vs Income Tax commissioner
AIR 1959 SC 149 where the majority expressed its view against the
waiver of fundamental right. It was held that it was not open to citizens
to waive any of the fundamental rights.
Thus Article 13 serves as a protector and ensures
rights of freedom to citizens in the form of fundamental rights and
safeguards people from arbitrariness of the state
Written By: Sajeetha.A,
- Indian constitutional law - MP Jain
II Year - Tamilnadu Dr. Ambedkar Law University
Suggested Articles on Article 13:
Article 13 of the Constitution of India
Article 12 and 13 of the constitution of India
Article 13 - Constitution of India
Judicial Review In India
Article 13 Of Indian Constitution Easy Explanation