Article -13 |Justiciability of Fundamental Rights

Introduction

Indian Constitution is a Supreme. It means ‘Supremacy of the Constitution i.e., all laws must be in accordance with the provisions of Constitution. Parliament, while passing legislation must act in strict adherence to the specific mandates, of the constitution.

Article 13

Art.13 of the Constitution envisages supremacy of the Constitution. It reads as follows-

Art. 13 say that 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, insofar 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 such contravention, be void.

Article 13 contains the clauses. They are:-

  • Pre -Constitutional Laws (Art.13(1)).
  • Post-Constitutional Laws (Art.13(2)).

Pre-Constitutional Laws 

 Art.13(1) of the Constitution declares that all laws in force in the territory of India immediately before the commencement of the Indian Constitution shall be void to the extent to which they are inconsistent with the fundamental rights under Part-III of the Constitution.

Post-Constitutional Laws

Art.13(2) of the Constitution Prohibits state to make any law, which takes away or abridges rights conferred by Part-III of the Constitution, If a state makes such a law, it becomes ultra vires and void to the extent of the contravention.

Case Laws Under the Art.13(1) : 

Keshava 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 into effect in 1950 it gave the freedom of speech and expression under Art. 19 of the Indian constitution, therefore the apex court said that the petitioner’s trial must go on as the benefits of At.13 would not be given to him because Art.13 is not retrospective;

  • Doctrine of Severability

The doctrine says that if some parts of the statute are inconsistent with that of the fundamental rights, then the whole statute would not be declared to be void but that particular clause would be treated to be void by the court of law.

 The expression ‘Severability’ literally means “Separation”. It means to separate the valid portion of the law from the invalid portion, where an Act or legislation contains both void and valid provisions.”

A.K.Gopalan V. State of Madras

   In this case, the Supreme Court struck down sec.14 of the Preventive Detention Act, 1950 on the ground that it is violated of the fundamental right guaranteed under Art.22 of the constitution.

The court separated that section from the impugned Act (Preventive Detention Act) and held the remaining part of the impugned Act could remain unaffected (i.e., the Act minus Sec.14 is declared valid).

  • Doctrine of Eclipse

          The doctrine of Eclipse says that if some laws are violating fundamental rights, they would not be declared void-ab-initio but would be unenforceable for a time being i.e such laws are over-shadowed by the fundamental rights, thus in the case of non-citizens of India, the law may be applicable.

Here, the doctrine of severability (discussed above) says that all the pre-existing constitutional laws are to be filtered out in respect with that of the fundamental rights to make them valid and the laws which do not respect the fundamental rights would not be declared void completely but would be overshadowed by fundamental rights and on future if any amendment is made related to such a law.

It becomes valid provided that the pre-constitutional law must be consistent with that of the fundamental right.

Case Laws Under Art.13(2) 

Art.13(2) say about the Post constitutional laws i.e It says that once the constitution is framed and came in effect then any of the states may not make laws that take away or abridges the fundamental rights of an individual and if done so then it would be void till the extent of contravention.

State of Gurajrat V. Ambika Mills, AIR 1974.

In this case, a certain labour welfare fund act was challenged, as certain sections on it were against 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, here the question arises 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  Ambila 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.

Article.13(3)

  • “Law” includes any Ordinance, Order, bye-laws, rule, regulation, notification, custom or usage 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 replace, not withstanding that any such law.

By Virtue of the comprehensive nature of the term ‘law’, it also includes subordinate legislature, rules, regulations, and order made by the Government.

Therefore, Executive order or administration order, however, would not come within the purview of the law. Similarly, statutory notifications would be law in force whereas executive notification would not.

Article 13(4)

Art.13 say’s that any of the amendments made in Art.368 of the Indian Constitution would not be challenged under Art.13 moreover if the amendment so made would be against the fundamental rights then also it would not be challenged under Art.13.

Art.13(4) gave birth to a landmark doctrine to our constitution moreover it prohibits the parliament to make laws or amendments which are inconsistent with the fundamental rights. The doctrine above mentioned is Basic Structure Doctrine.

Landmark cases

Shankari Prasad V. Union of India

In this case, a question arises that as per Art.13, if parliament does makes any laws which is inconsistent with fundamental rights would be considered invalid but if any amendment done by parliament under Art.368 would be considered valid or not?

The supreme court held that the word ‘Law’ in Art.13(2) doesn’t include the law/amendment made by the parliament under Art.368.

Golaknath V. State of Punjab

To remove the uncertainty created by Golaknath’s decision, the constitution (24th Amendment) Act, 1971 was passed and a new clause (4) was added to Art.13. Art.13(4) makes clear that constitutional amendment shall not be considered as ‘law’ under Art.13.

Finally, the supreme court in Kesavananda Bharati V. State of Kerala, AIR 1973 SC 146 upheld the validity of the constitution (24th Amendment)Act, 1971 and overruled the decision of Golaknath’s Case.

Conclusion

Here, we conclude that Fundamental rights are given to enjoy and secure our rights. Before the ADM Jabalpur case the fundamental rights are not fundamental rights after this judgment there has been so many changes noticed.

Since then there are many to still strive for them, whether it is the prison reform which is to be changed and the system is to be made more transparent, the legal mechanism to carry out the functioning of Art.13 which means the whole definition of law has to be armed till teeth.

Author/Editor

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