ARTICLE 13 OF THE CONSTITUTION OF INDIA
INTRODUCTION
Article 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, –
a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
b) “Laws in force” includes laws passed or made by a 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.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.
In A. K. Gopalan v. State of Madras, Kania C. J., commenting on Article 13, said “the inclusion of Article 13(1) and (2) appears to be a matter of abundant caution. Even in their absence, if any of the Fundamental Rights was infringed by any legislative enactment, the court has always the power to declare the enactment to the extent it transgresses the limits, invalid.”
“LAW” AND “LAW IN FORCE”
Article 13(3) (a) defines “law” very widely by an inclusive definition. It does not expressly include a law enacted by the legislature, for such an enactment is obviously law. The definition of law includes:
i. An ordinance, because it is made in the exercise of the legislative powers of the executive; ii. An order, bye-laws, rule, regulation and notification having the force of law, because ordinarily they fall in the category of subordinate delegated legislation and are not enacted by the legislature;
iii. Custom or usage having the force of law, because they are not enacted law at all. This extended definition of “law” appears to have been given, in order to forestall a possible contention that law can only mean law enacted by the legislature.
The expression “law in force” used in Article 13(1) and 13(3)(b) has not been defined but in Edward Mills Co. Ltd. v. Ajmer (1995), it was held that “law in force” means the same thing as “existing law” which has been defined in Article 372 to mean: “any law, ordinance, order, bye law, rule or regulation passed or made before the commencement of this Constitution by any legislature, authority, or person having power to make such a law, ordinance, order, bye-law, rule or regulation.”
WHETHER “AMENDMENT” TO THE CONSTITUTION IS “LAW AS PER ARTICLE 13
Article 13(4) declares, “Nothing in this Article shall apply to any amendment of this Constitution made under Article 368”. This clause was inserted by the 24th Amendment Act, 1972.
In Sankari Prasad v. Union of India (1952) the Supreme Court unanimously held that an amendment of the Constitution under Article 368 was not “law” within the meaning of Article 13(3) (a). The court distinguished between a law made in the exercise of legislative power and a law made in the exercise of Constituent power; and held that Article 13(3) (a) applied only to a
law made in the exercise of legislative power. This distinction was affirmed by a majority of 3 to 2 in Sajjan Singh v. State of Rajasthan (1965).
These cases were overruled in I. C. Golak Nath v. State of Punjab (1967) but I. C. Golak Nath v. State of Punjab (1967) was decisively overruled in Keshvananda Bharti v. State of Kerala (1973). However no conclusive comment was made on the above issue in this case as well.
However, the matter was set at rest by the Constitution in the 24th Amendment Act, 1972, which inserted a new clause (4) in Article 13 which expressly excluded an amendment of the Constitution from Article 13. This interpretation is possible because the Keshvananda Bharti v. State of Kerala (1973) was silent on this point.
EFFECTS OF ARTICLE 13
We now consider the effect of Article 13 on:
i) existing laws (“law in force”), i.e., Pre-Constitutional Laws, and
ii) laws made by the legislatures setup under our Constitution i.e., Post-Constitutional Laws.
I. PRE-CONSTITUTIONAL LAWS – ARTICLE 13(1)
Article 13(1) reads:
“All laws in force in the territory or 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.”
So, we can state the following:
i. The “laws” in question must have been in force in the territory of India immediately before the commencement of the Constitution.
ii. Some part of the law in question is inconsistent with the Fundamental Rights under part Ill of the Constitution
iii. In the above events, the law in question will be void only to the extent of inconsistency and not wholly.
Principle of retrospectivity:
The provisions of the Constitution relating to the Fundamental Rights have no retrospective effect. All inconsistent existing laws therefore become void only from the commencement of the Constitution. Acts done before the commencement of the constitution in pursuance or in contravention of the provisions of any law, which after the commencement of the constitution became void because of inconsistency with the Fundamental Rights, are not affected. The inconsistent law is not wiped out so far as the Pre-Constitutional acts are concerned.
In Keshavan Madhava Menon v. State of Bombay (1951), the effect of Article 13(1) was considered in order to decide whether a prosecution commenced [under Section 18, Indian press (emergency powers) Act, 1931] before the coming into effect of the Constitution, could be continued after the constitution came into force if the Act became void or violative of Article 19(1) (a) and (2)
Das, J., speaking for the majority held that the prosecution could be continued, because the provisions of the Constitution were not retrospective, unless made so expressly or by necessary intendment, and because there was nothing in the language of Article 13(1) which indicated that it was retrospective.
Article 13(1) did not render existing laws void ab initio, but only to the extent of their inconsistency with Fundamental Rights i.e., after the commencement of the Constitution, no existing law could be allowed to stand in the way of the exercise of Fundamental Rights. Such inconsistent laws were not wiped out or obliterated from the statute book, for so to hold, would be to give Fundamental Rights a retrospective effect which the court held they are not.
Das J. observed, “There is no Fundamental Right that a person cannot be prosecuted and punished for an offence committed before the Constitution came into force. So far as past acts are concerned, the law exists”.
Notably, in Lakshmandas v. State of Bombay (AIR 1952 SC) it was held that if two procedures are there, nobody can claim his rights and liabilities to be enforced under a particular procedure which becomes void. A discriminatory procedure laid down by a Pre-Constitutional Law need not be followed.
Doctrine of Eclipse:
From the above, flows the concept of eclipse, which envisages that, the inconsistent Pre Constitutional law is not wiped out completely it rather remains dormant or eclipsed. It revives with the same force the moment the defect is cured by a legislative enactment.
In light of the above doctrine of retrospectivity, it is clear that a Pre-Constitutional law which inconsistent with the provisions of part III (Fundamental Rights) of the Constitution is not a nullity is not void ab initio; rather it exists for Pre-Constitutional Acts. It also remains valid for those person who have not been given the Fundamental Rights (i.e., non-citizens in some cases) even for Post Constitutional acts.
Thus, if a law becomes void from 26-1-1950 as it is inconsistent with the Fundamental Rights will still be applicable against a citizen or a non-citizen who committed an offence under the said before 1950, say in 1940. Also, it will be applicable (only against) a non-citizen if he commits offence after 26-1-1950, say in 1960.
Now, the question arises that if the law is not void ab initio and is not completely wiped out; can it be revived and made effective by an amendment of the law in question:
The law otherwise valid becomes void, merely because the Fundamental Rights came into operation, from 26-1-1950 and the shadow of these Fundamental Rights falls upon the said law.
In other words, the said law, in so far as it is inconsistent with the Fundamental Rights, becomes eclipsed by the Fundamental Rights. This shadow or eclipse, is removed the moment, the defect in the said law is removed by a constitutional amendment. The reason being that the law never became non-existent; it was always there behind the shadow of the Fundamental Rights. The moment the shadow is removed, the law will automatically come to the fore or revive.
The Supreme Court in Bhikaji v. State of M.P. (1955) decided the case on the above grounds. In that case, the C.P. and Berar Motor Vehicles (Amendment) Act, 1947 authorised the state government to take up the entire motor transport business in the state to the exclusion of the private operators. This law became void on 26-1-1950 as it was violative of Article 19(1) (g). However this defect was cured in 1951 by the Amendment Act, which amended Article 19(6) so as to authorise the government to monopolise any business. It was held that the amendment had removed the shadow and therefore the law became operative from the date of the amendment against the citizens also.
The Rule of Severability:
According to Article 13(1) it is not the whole Act, which is rendered void, if it violates any Fundamental Right, but only that part of an Act is held inoperative which is inconsistent with Fundamental Rights and only to the extent of such inconsistency. The rest of the Act, minus the impugned provision(s) may remain active.
In State of Bombay v. F. N. Balsara, (1951) the Supreme Court stated that, the provisions under the Bombay Prohibition Act, (1949) was held ultra vires on the ground that they infringed the Fundamental Rights of the citizens, but the Act, minus the invalid provisions, was allowed to stand. The Supreme Court said: “The decision declaring some of the provisions of the Act to be invalid does not affect the validity of the Act as it remains”.
In certain cases, Provisions of an act may be so closely related and mixed up that the valid and invalid portions cannot be separated from one another. In such case, the invalidity of the impugned portion shall result in the invalidity of the Act in entirety. Since what remains valid is so
inextricably wound up with the part declared invalid, that the valid part cannot survive independently. In determining whether the valid parts of a statute are severable from the invalid parts, the intention of the legislature is the determining factor i.e. it should be asked whether the legislature would have enacted at all that which survives without enacting the part found ultra vires.
II. POST-CONSTITUTIONAL LAWS – ARTICLE 13(2)
Article 13(2) declares:
“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.”
This clause deals with Post-Constitutional Laws, i.e., laws made after the commencement of the Constitution. The duty not to make a law contravening the Fundamental Rights could be carried out only after the Fundamental Rights came into force.
The state is prohibited from making any law which takes away or abridges any of the right conferred by part III. So, “state”, as understood via Article 12;
∙ Shall not make any law, contravening the mandate not to take or abridge the Fundamental Rights.
∙ In case, a law in contravention is made, such a law shall be void
∙ The voidness of the law is only to the extent of the contravention i.e., if only a part of the law is in contravention, only that part will be void and not the whole law. (Provided that part is Severable)
The main issues with respect to Article 13(2) are:
1) Whether the law declared to be void under Article 13(2), void ab initio i.e. a complete nullity?
2) Whether the law declared void under Article 13(2) would be non-est with respect to non-citizens also.
3) Whether the doctrine of eclipse applies to Article 13(2).
∙ As regards the first issue:
Article 13(2) enjoins a duty upon the state not to make laws in contravention of the Fundamental Rights. Thus if such a law is made, it is ultra vires and hence void. Unlike a law under Article 13(1), a law under Article 13(2) is void ab initio and a stillborn law. This is so because such a law could never have been validly made whereas the law under Article 13(1) was valid in the Pre-Constitutional times. It is important to note that the above view does not hold good now as the State of Gujarat v. Ambica Mills (1974) has modified the concept. The actual position now is that like pre-constitutional laws even the post constitutional laws are not void ab initio or non-est.
However a declaration of the voidness by the court is required. Nevertheless, whether such a law is a non-est has to be seen. Even convictions made under the unconstitutional laws have to be set aside as the law is void ab initio.
∙ As regards the second issue:
The Fundamental Rights are available to citizens only and the directive under Article 13(2) is with respect to the Fundamental Rights only. Therefore the law in question has to be void with respect only to those people to whom the Fundamental Rights are available. Hence the law has to be void ab initio or non-est only with respect to citizens and not non citizens.
∙ As regards the third issue:
In this regard initial arguments were: As the inconsistent law is void ab initio or a nullity with respect to citizens, the question of its being shadowed or eclipsed by the Fundamental Rights does not arise. If there is no valid law at all, then what is to be eclipsed by the fundamental rights. Therefore the doctrine of eclipse should not apply to Post
Constitutional Laws with respect to citizens
As to non-citizens the question of applicability of Article 13(2) does not arise as the law cannot be inconsistent hence void for non-citizens as far as Fundamental Rights are not available to them. The law is and will always be valid and applicable for non-citizens. Taking a clue from above, it can equally be argued, that as the law still remains valid against non-citizens, it cannot be said to be non-est or a nullity against citizens also, and therefore the law should become valid and applicable against citizens also once the defect is cured. i.e., the doctrine of eclipse should apply against citizens also.
This seems to be the logic behind the decision by the Supreme Court in Dulare Lodh v. 3rd Additional District Judge, Kanpur (1984) SC. Therein, an ejectment order was passed by the court of small causes in 1973 against a tenant under a 1972 Act. However, an amendment was subsequently made to the Act which made the decree inexcusable. Hence the execution order could not be obtained for 13 years. Subsequently in 1986, a further amendment in the Act was made, with retrospective effect. The decree once again became executable. The Court held, “The first amendment had merely made the Act dormant, and the 2nd Amendment, by removing the defect, had made the Act, applicable once again. Doctrine of eclipse was applied in the present case to citizens also.”
In Deep Chand v. State of Uttar Pradesh (1963) SC, it was observed that a Pre-Constitutional Law is not void from its inception whereas a Post-Constitutional Law is void from its inception and therefore it cannot exist for any purpose.
The view held in the above cases was modified in State of Gujarat v. Ambica Mills (1974) SC. The two main issues to be decided were:
1. Whether the law declared void under Article 13(2) would be non-est with respect to non-citizens also
2. Whether the doctrine of eclipse applies to Article 13(2)
Mathew J. held that even Post-Constitutional Laws, like Pre-Constitutional Laws, remained operative against non-citizens. The meaning of void is the same for both Article 13(1) and (2). Voidness is not in rem but to the extent of inconsistency or contravention. If a law takes away the Fundamental Right of one class of persons, it does not become inoperative against even the others
who have no such Fundamental Rights. Accordingly it was held that the Bombay Labour Welfare Fund Act, 1953, which was void against citizens, was valid in respect of the respondent company. The respondent company was not a citizen for the purpose of Part-III of the Constitution.
CONCLUSION
The citizens (and in some cases, even non-citizens) have been given the Fundamental Rights. The Fundamental Rights protect the basic and inherent rights and liberties of a person. The purpose of the Fundamental Rights is to act as a check upon the unbridled powers of the state, so that the state does not transgress upon the basic human values, liberty and dignity. A question that arises is: “if a person has been given the Fundamental Rights for his own benefit, can he not say that he does not need the Fundamental Right and can he not waive his Fundamental Right? Can an accused person waive his Fundamental Rights and got convicted?”
The answer to the above question lies in the very concept and purpose of conferring the Fundamental Rights upon the citizens. The purpose of the Fundamental Rights is not merely to protect the individual. The larger purpose is to set up an orderly and just society. They have been granted as a matter of public policy and an obligation has been imposed upon the state to protect the Fundamental Rights of persons. The state cannot be relieved of this duty. In a divergent society like India, where a majority of people are economically, educationally and politically backward, and are unconscious of their rights, it would be unpractical and short sighted to apply the doctrine of waiver which has been formulated by some U.S. Judges.
The issue of waiver of Fundamental Rights directly arose in the case of Basheshar Nath v. ITC (1959) SC. The majority in this case, on the above grounds held that the doctrine of waiver does not apply to India. It is not open to a citizen to waive any of the Fundamental Rights conferred by Part III of the Constitution.
