Article 13

Article 13 

Article 13 of the constitution 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. 

Clause (1) – All pre-Constitution or existing laws i.e. laws which were in force immediately before the commencement of the Constitution shall be void to the extent to which they are inconsistent with fundamental rights from the date of the commencement of Constitution 

Clause (2) – The State shall not make any law which takes away or abridges the fundamental rights, and any law in contravention of fundamental rights shall to the extent of contravention, be void 

[Thus, Art. 13(2) applies to post-Constitution laws ] 

Clause (3) – The term ‘law’ includes any ordinance, order, bye law, rule, regulation, I notification, custom or usage having in the territory of India the force of law. 

Article 13, in fact, provides for the ‘judicial review’ of all legislations in India, past as well as future. All laws whether made by a legislature or by a delegated authority and all executive acts must respect and conform to the fundamental rights. The ordinances promulgated by the President under Art. 123 or by the Governor under Art. 213 must also not be inconsistent with the fundamental rights Art. 13 imposes an obligation on the State to respect and implement the fundamental rights and at the same time confers a power on the courts (Supreme and High Courts via Art. 32 and Art. 228) to declare a law/ Act void if it infringes a fundamental right. Art. 13, thus, provides teeth to the fundamental rights and makes them justiciable i.e. enforceable in the courts. 

The words “to the extent of such inconsistency be void” in Art. 13 means that only the repugnant provisions of the law in question shall be treated by courts as void and not the entire statute.

A person was being prosecuted under a law before the Constitution came into force. After the Constitution came into force, the law became void under Art. 19(1)(a). Keshva Madhav Menon v. State of Bombay, 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. It was held. 13(1) could not apply to him as the offence had been committed before the enforcement of the Constitution and, therefore, the proceedings against him were not affected. 

But the procedure through which rights and liabilities were being enforced in the pre- Constitution era is a different matter. A discriminatory procedure becomes void after the commencement of the Constitution and so it cannot operate even to enforce the pre-Constitution rights and liabilities, Lachmandas v. State of Maharashtra. 

A law inconsistent with a Fundamental Right is not void as a whole. It is void only to the extent of inconsistency. This means that the doctrine of severability has to be applied and the offending portion of the law has to be severed from the valid portion thereof, Sub-Inspector Rooplal v. Lt. Governor. 

DOCTRINE OF SEVERABILITY 

According to Art. 13, a law is void only “to the extent of the inconsistency or contravention” with the relevant Fundamental Right. The above provision means that an Act may not be void as a whole; only a part of it may be void and if that part is severable from the rest which is valid, 

then the rest may continue to stand and remain operative. The Act will then be read as if the invalid portion was not there. If the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder the court will declare the entire Act void. 

A.K Gopalan v. State of Madras 

In this case section 14 of the 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. 

R.M.D.C. v. Union of India 

The Supreme Court has explained the doctrine as follows “When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But when the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the Court on a consideration of the provisions of the Act”. 

DOCTRINE OF ECLIPSE 

The prospective nature of Art. 13(1) has given rise to the doctrine of eclipse. The Doctrine of Eclipse is based on the principle that a law which violates Fundamental Rights is not nullity or void ab initio but becomes only unenforceable. It is over-shadowed by the Fundamental rights and remains dormant, but it is not dead. They exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. The doctrine of eclipse envisages that a pre-Constitution law inconsistent with a Fundamental Right was not wiped out altogether from the statute book after the commencement 

of the Constitution as it continued to exist in respect of rights and liabilities which had accrued before the date of the Constitution. Therefore, the law in question will be regarded as having been ‘eclipsed’ for the time being by the relevant Fundamental Right. It was in a dormant or moribund condition for the time being. Such a law was not dead for all purposes. If the relevant Fundamental Right is amended then the effect would be “to remove the shadow and to make the impugned Act free from all blemish or infirmity”. 

A legal provision enacted in 1948, authorising the State Government to exclude all private motor transport business, became inconsistent with Art. 19(1)(g) when the Constitution came into force in 1950. In 1951, Art. 19(1) (g) was amended so as to permit the State Government to monopolise any business. What was the effect of the constitutional amendment of 1951 on the law of 1948? Whether the law having become void was dead once for all and so could not be revitalised by a subsequent constitutional amendment without being re-enacted, or whether it was revived

automatically? It was to solve this problem that the Supreme Court enunciated the doctrine of eclipse in Bhikaji v. State of Madhya Pradesh. 

The doctrine of eclipse has been held to apply only to the pre-Constitution and not to the post- Constitution laws. The reason is that while a pre-Constitution law was valid when enacted and, therefore, was not void ab initio, but its voidity supervened when the Constitution came into force, a post-Constitution law infringing a Fundamental Right is unconstitutional and a nullity from its very inception. Therefore, it cannot be vitalised by a subsequent amendment of the Constitution removing the infirmity in the way of passing the law. 

Post- constitutional law: 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 individual and if done so then it would be void till the extent of contravention. 

Does the doctrine of eclipse apply to a post-Constitution law? 

Art. 13(2) deals with post-Constitution or future laws [while clause (1) deals wjth pre-Constitution or existing laws] As distinguished from clause (1), clause (2) makes the inconsistent laws void ab initio (void from their very inception or still- born law) and even convictions made under such laws shall have to be set aside. Also, such laws cannot be revived by subsequent amendment of the Constitution. It is to be noted that in both clause (1) and (2) of Art. 13, a declaration by the court of their invalidity will be necessary, to make the laws invalid. 

In Deep Chand v State of U.P (AIR 1959 SC 648) and Mahendra Lal Jain v State of U.P. (AIR 1963 SC 1019), held that the doctrine of eclipse applies only to pre-Constitution law, and not to post-Constitution law, because voidness of the latter is from its very inception and such a law cannot exist for any purpose. 

State of Gujrat v. Ambika mills 

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. In this case SC modified its view as expressed in Deep Chand case. In case the law contravenes a Fundamental Right limited to the citizens only, it will operate with respect to the non-citizens. Such a law will be regarded as ‘still-born’ vis-à-vis the citizens even though it may be operative qua the non- citizens, and so it will have to be re-enacted if it is desired to make it valid qua the citizens. 

Art. 13 is not applicable to law declared by the Supreme Court u/Arts. 141-142 

The judgement of the Supreme Court in Mandal case declaring that Rangachari ratio did not correctly interpret Arts. 16(1) and 16(4) is a declaratory law under Art. 141 of the Constitution. Art. 13(1) and (2) deal with the statute law and not the law declared by the Supreme Court under Art. 141 and directions/orders under Art. 142. 

Is the Constitutional Amendment a law under article 13? 

The question whether the word “law” in clause (2) of Art.13 also includes a ‘Constitutional amendment’ was for the first time considered by the supreme court in Shankari Prasad Singh Deo v. Union of India the Constitutional (1st Amendment) Act, 1951, which amended the fundamental rights guaranteed under the constitution, which was challenged on the ground that since the amendment has the effect of abridging the fundamental rights it was not valid law within the meaning of clause (2) of Article 13. The contention was rejected by the apex court and held that the word ‘law’ in clause (2) did not include a law made by the Parliament under Article 

368 amending the constitution. It was said that the word ‘law’ means the “the rules and regulations enacted by legislatures” and not the “constitutional amendments made in exercise of constituent powers.” Therefore, this judgement was followed by a majority of judgments such as in Sajjan Singh v. State of Rajasthan. However, in the case of Golak Nath v. State of Punjab, the apex court by 6:5 majority held that the word ‘law’ in Article 13 (2) included the amendment of the constitution and as a consequence, if an amendment abridged or took away fundamental rights guaranteed under Part III of the Constitution of India, the amending Act itself will become void and ultra vires. Subsequently, in the case of Kesavananda Bharati v. State of Kerala, the Supreme Court of India overruled the Golak Nath case and unanimously held that the Constitution (24th amendment) Act, 1971, which inserted clause (4) in Article 13 and clause (3) in Article 368 was valid. Therefore, all the judges agreed that the amended Article 368, all the provisions including those enshrining fundamental rights (Part III) could be amended.