Article 13

 Laws Inconsistent with the Fundamental Rights (Article-13)

According to Article-13, the different clauses are:

13(1) Article-13 declares that, all the laws in force in the territory of India before the commencement of this constitution shall be void to the extent to which they are inconsistent with the provisions of Part-3 of the constitution.

13(2) It provides that the state shall not make any law which takes away the fundamental rights conferred by Part-3 of the constitution and any law made in contravention of the fundamental rights shall be void.

13(3) This Article gives the term “Law” which includes any ordinance, order, bye-law, rule, notification, custom or usages having the force of the law.

Objective of Article-13(2):

The main objective of Article-13 is to secure the constitution especially with regard to the fundamental rights.

Power of Judicial Review:

Article-13 provides the Judicial Review of all the legislations in India, past as well as future.

This power has been conferred on the High Court and Supreme Court of India (Article226 and 32 respectively), which can declare a law as unconstitutional if it is inconsistent with any of the provisions of Part-3 of the constitution.

Article -13

Clause-1 Clause-2

Pre- Constitutional Law Post- Constitutional Law

Enforced Before- 1950 Enforced After- 1950

From the Commencement     In Operative from Beginning

Of the Constitution (Void/ Inoperative)

Doctrine of Severability a)  Doctrine of Waiver

Doctrine of Eclipse b)  Doctrine of Lifting 

the Veil

Article- 13 is given in 2 ways:

1. Pre- Constitution laws
2. Post- Constitution laws

Pre-Constitution laws:

According to clause (1) of Article-13,

all the laws in force in the territory of India before the commencement of this constitution shall be void to the extent to which they are inconsistent with the provisions of Part-3 of the constitution.

This is given in 2 types:

1. Doctrine of Severability
2. Doctrine of Eclipse

Doctrine of Severability:

This doctrine means, if an offending provision can be separated from the constitution then only that part which is offending is to be declared as void and not the entire statute.

In RMDC

     V

    Union of India

In this case, Section-2(d) of the Prize Competition Act, includes the competitions of a gambling nature as well as the competitions involving the skill was involved.

The Supreme Court held that the provisions of the act were Severable and struck down those provisions which was related to the competition not involving the skill.

The court in RMDC case held that, if an offending provision can be separated from the constitution then only that part which is offending is to be declared as void and not the entire statute.

Doctrine of Eclipse:

It is based on the principle that, a law which violates the fundamental rights is not void but becomes only unenforceable.

It is over-shadowed by the fundamental rights and remains as dormant, but it is not dead.

They exist for all the past transactions for the enforcement of rights before the present constitution that came into the force.

In Bhikaji

    V

State of Madhya Pradesh

The Supreme court held that, the effect of the amendment was to remove the shadow and to make the act free from the infirmity.

It became enforceable against the citizens as well as non-citizens after the constitutional impediment was removed.

This law was eclipsed for the time being by the fundamental rights.

As soon as the eclipse is removed the law begins to operate.

Post-Constitution Law:

According to Clause-(2) of the Article-13,

It provides that the state shall not make any law which takes away the fundamental rights conferred by Part-3 of the constitution and any law made in contravention of the fundamental rights shall be void.

In Deep Chand

V

State of Uttar Pradesh

The Supreme Court held that a post-constitution law made under Article-13(2) which constitutes a fundamental right is Void and the doctrine of Eclipse does not apply.

In Ambica Mills

V

State of Gujrat

The Supreme Court modified its view as expressed in Deep Chand case and held that a post-constitution law which is inconsistent with the fundamental rights is not Void in all the cases.

This Post – constitution is given in 2 doctrines:

1. Doctrine of Waiver
2. Doctrine of Lifting the Veil

Doctrine of Waiver:

Can a citizen waive his fundamental rights?

The doctrine of waiver has no application to the provision of law enshrined in Part-3 of the constitution.

It is not open to an accused person to waive up or to give up his constitutional rights and get convicted.

In Basheer Nath

V

Income Tax Commissioner

The Court held that, it is not open to an accused person to waive up or to give up his constitutional rights and get convicted.

Doctrine of Lifting the Veil:

To test the constitutional validity of the Act, on the violation of the fundamental rights, it is necessary to ascertain its true nature, character and impact of the act, for which the court may take into consideration all the factors like history of the legislation etc. 

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