MAKING LAW SIMPLE!

BASIC STRUCTURE OF THE CONSTITUTION: Article 13!

Article 13

Article 13 is the key provision as it gives teeth to the FUNDAMENTAL RIGHTS and makes them Justiciable, it is a protection and an index of the importance of the part-III of the Indian Constitution.
Article 13 (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”

Article 13(1) deals with the pre-Constitutional laws, or if they inconsistency with the Fundamental right, shall be void from the date of Commencement of the Indian Constitutional Act 1950, 26th November 1950.

Pre-Constitutional laws are those laws that apply in Indian before the Commencement of the Indian Constitution.

The provision of Article 13, has given rise to the Doctrine of Eclipse, which states that if any law made by the legislature is inconsistent with the Part-III of the Indian Constitution then the law is invalid or considered void.

This doctrine makes an act inactive, and it may be again active by future amendments as per need.

ACC. To Article 13, a law is Void only “to the extent of the inconsistency or Contravention with the relevant Fundamental Rights.

This article is also deal with the Doctrine of severability which state that “only a part of the act is void and if that part is severable from the rest which then the rest may continue to stand and remain operative.

LANDMARK CASE

This doctrine is clear with one of the most famous cases i.e.

AK Gopalam v. State of Madras in which that, if the nature of the Structure of the legislature is not changed by the omission of the void portion, then that portion will be omitted and rest will follow as it is.

Article 13(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.”

Article 13(2) deals with post-Constitution laws that the state shall not make any law that takes away or abridges the fundamental rights. If any such laws violate the fundamental right it becomes void-ab-initio means no rights can’t be infringed by either legislature or administration actions.

Like in 2014, the BJP government introduce or pass a new act called “Nation Judicial Appointment Committee Article 124” which deals with the appointment of Supreme Court and High Court judges and Chief justice of India but later on Supreme Court declare this as unconstitutional.

Article 13(3)
In this article, unless the context otherwise requires

the 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 include 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.
Article 13(3) (a) state that, not only a piece of the legislature but any of the thing mention here can be challenged as infringing a Fundamental right, UOI v. Col LSN Murthy.

Article 13(3) (b) state that the expression “law in force” includes a law passed or made by a legislature or other competent authority.

Exceptions

There are the certain exception of Article 13(3) i.e.

  • Personal laws
  • Customs
  • Personal law
  • Personal law is that law that belongs to a particle commodity like Hindi law, Muslim law etc.

State of Bombay v. Narasu Appa Mali,

The framers of the Constitution wanted to leave the personal laws outside the ambit of the part-III of the Constitution because they knew that personal laws needed to be reformed and in fact, they wanted to abolish these personal laws and to evolve one common code.

Yet they didn’t wish that the provision of personal laws was challenged because of the Fundamental Rights.

Ahmedabad women Action Group v. Union of Indian

In this case, a PIL was filed through a Writ petition to declare the Muslim personal law which allows Polygamy/ Bigamy as void offending Articles 14 and 15. The Court held that the remedy lies somewhere else rather than Court (Legislative).

Customs

Administrative directions/instructions for Guidance and no means as an enforceable legal obligation.

Madhu Kishwar v. State of Bihar
yet the customs inconsistency with or repugnant to Constitution scheme must always place to Fundamental rights.

The doctrine of Basic Structure of the Constitution

Can Constitutional Amendment is “law”? This question seems very easy, simple but if we deep dig into this question we found the correct meaning of this question i.e. whether the Parliament is supreme or Supreme Court is Supreme.

If Constitutional Amendment is a law, then parliament is empowered to amend any part of the Indian Constitutional then parliament is Supreme or if the constitutional amendment is not a law, then Supreme Court is Supreme Court.

Shankari prashad v. UOI

In this case, the first Constitutional Amendment act was challenged. This act is known as “abolition as Zamidari System”. Certain laws were brought about which were curtailing the right to protect.

To protect that law, Articles 31A or 31B were inserted in the constitution. So people start looking at these acts as an infringement of fundamental rights i.e. Right to property

A question was raised that whether the Parliament have the power to amend the Fundamental Rights. The Court held that the law including under Article 13 is just in an ordinary sense Thus Article 368 includes the power to amend the Constitution Rights.

Sajjan Singh v. State of Rajasthan

In this case, the 17th Amended act was challenged because it restricts the power of the High Court then again a discussion takes place that what can be an amendment or what can’t. The court upheld the judgement of Shankari Prasad v. UOI.

Golaknath v. State of Punjab

In this case, again 17th Amended act was challenged, this time a question was raised whether the power to amend the Fundamental right is unlimited or limited? 11 benches of the judge was set up as the largest bench till the time.

The first time it held that the amending power of fundamental rights is limited, it is subject to the limitation of judicial review. This case revers the judgement of the judiciary, the word “law” use under article 13(2) included the constitutional amendment means if it infringes the Fundament right, it would be considered void.

24th Amendment act,

This amendment act included 13(4) which state nothing in article 13 would apply to Article 368 shall not be challenged under Article 13 i.e. Judicial review and this act also changed the heading of Article 368 previously it was read as “the procedure to amending the Constitution” but now it reads “Power of the parliament to amend the Constitution and Procedure, therefore” this act also included clause 3 in the article 368 which state that nothing in the article 13 shall be applied to Article 368.

Kesavananda Bharti v. State of Kerala

The 24th amendment act was challenged under this again the same question arose but this time Supreme Court give a very balanced judgement in which they held that the parliament has right to amend the Constitution to form a new constitution but without touching the basic structure of the Constitution So, this case impose some restrictions on the parliament to amend the constitution.

Indira Gandhi v. Raj Narain

This case includes clauses 4 and 5, which state that if part III of the Constitution was amended it can’t be questioned In any code they mention that there is so restriction to amend the Constitution.

The case put an end to the question that who is Supreme? The Supreme Court said that parliament is Supreme because Parliament represent the will of the People and if people want to amend the Constitution, then they can exercise their powers through parliament. (basic structure of the constitution).

Minerva Mills v. union of India

In this case, the 42nd amendment act was challenged and it was said that the clause 4 and 5 of Article 368, destroy the basic structure of the Constitution. So, Supreme Court declares it Unconstitutional.

After this case it was finally settled that no one is Supreme, only Constitution is Supreme and it was said that parliament can’t exercise unlimited amending powers, hence can’t disturb the basic structure of the constitution.

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