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Reaction Paper on Article 13

Article 13
Article 13 is one of the most important articles in the constitution. It defines what a law is and states that laws that are in violation of fundamental rights are not laws. The author speaks about the entire case law that finally decided that amendments are also laws.

The Indian constitution is supreme. It means' supremacy of the Constitution, i.e., all laws must be in accordance with the provisions of the constitution. Parliament, while passing legislation, must act in strict adherence to the specific mandates of the constitution. In other words, Article 13 of the constitution envisages supremacy of the constitution. Article 13 not only asserts the supremacy of the Indian Constitution but also makes way for judicial review.

This legislation creates scope for reviewing pre-constitutional and existing laws. Although the legitimacy of judicial intervention in constitutional matters has sparked debates, in most cases, the power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.

Clauses
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 void.

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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

In L. Chandra Kumar v. Union of India (1997), the Supreme Court recognised the power of the High Courts under Article 226 and Article 227 of the Constitution. Additionally, in the Indira Nehru Gandhi vs. Shri Raj Narain & Anr. case(1995), the Court affirmed that judicial review is part of the basic structure of the Constitution.

In Keshavan Madhava Menon v The State Of Bombay (1951), a seven-judge Bench heard the appeal of a petitioner prosecuted under the Indian Press (Emergency Powers) Act. Part of the appeal posed if Article 13 (1) of the Indian Constitution could 'declare all laws inconsistent with the fundamental rights to be void as if they had never been passed and existed' or void ab initio.

The Court ordered that Article 13(1) does not make existing laws inconsistent with the fundamental rights, or void ab initio, for all purposes. But Article 13 makes such laws "ineffectual and void" prospectively based on their exercise of fundamental rights on and after the commencement of the Constitution.

In 2017, in Shayara Bano v. Union of India and Ors. (also called the Triple Talaq judgement), the Hon'ble Supreme Court had an opportunity to observe the inclusion of personal laws in Article 13. But the Court believed that since Shariat law is a statutory law codified by the central legislative assembly, the rights of Muslim men to pronounce triple talaq and get divorced are arbitrary and unreasonable.

The Honorable Justice Fali Nariman and J. Lalit were of the opinion that the 1937 Act fell under the expression "law in force" under Article 13(3)(b). And therefore, the Triple Talaq law was pronounced inconsistent with the Indian Constitution. Justice Nariman also doubted the interpretation of Narusu's judgment that drew a difference between the two kinds of laws.

In 2018, the 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 affects the individual, it could fall under Article 13(3).

References:
  • https://www.lawctopus.com/academike/article-13-analysis/
  • https://www.jusdicere.in/importance-and-requirement-of-analysis-on-article-13-of-the-constitution/

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