Laws Inconsistent with or in Derogation of Fundamental Rights (Article 13)

At a Glance

• What it is The Article that declares laws inconsistent with the Fundamental Rights void, which is the basis of judicial review of laws
• Article Article 13, in Part III
• Who decides The Supreme Court under Article 32 and the high courts under Article 226
• Linked doctrines Severability, eclipse and non-waiver
• Exam link UPSC Prelims, Polity: Fundamental Rights

Where Does It Fit?

This is the second topic of the category on Fundamental Rights. Article 12 defined the State; Article 13 now says what happens to a law of the State that goes against a Fundamental Right. It gives the courts their power to strike down such a law.

What Does Article 13 Provide?

Article 13 declares that all laws that are inconsistent with or in derogation of any of the Fundamental Rights shall be void. In other words, it expressly provides for the doctrine of judicial review. The power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226), which can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

Article 13(1) deals with the pre-constitution laws and declares that all such laws are void to the extent to which they are inconsistent with the Fundamental Rights. Article 13(2) deals with the post-constitution laws and prohibits the state from making a law which takes away or abridges the Fundamental Rights; any such law is void to the extent of the contravention.

What Is Meant by “Law”?

The term “law” in Article 13 has been given a wide meaning. It includes the following:

Thus not only legislation but any of these can be challenged in the courts as violating a Fundamental Right and can be declared void.

Is a Constitutional Amendment a “Law”?

This question moved through four stages in the Supreme Court. In the Shankari Prasad case (1951) the Court ruled that “law” in Article 13 includes only ordinary laws and not constitutional amendment acts, so Parliament could take away Fundamental Rights by an amendment. The Sajjan Singh case (1964) re-affirmed this stand.

In the Golak Nath case (1967) the Court reversed itself. It said the Fundamental Rights have a “transcendental and immutable” position and that a constitutional amendment is also a law under Article 13. Parliament reacted with the 24th Amendment Act (1971), which amended Articles 13 and 368 and declared that an amendment is not a law under Article 13.

In the Kesavananda Bharati case (1973) the Court overruled Golak Nath and upheld the 24th Amendment. At the same time it laid down the doctrine of the ‘basic structure’. A constitutional amendment can be challenged and declared void if it violates a Fundamental Right that forms part of the basic structure.

Doctrine of Severability

When part of a law is declared unconstitutional, the question is whether the whole law is void or only the offending part. According to the doctrine of severability, if the offending provision can be separated from the constitutional provisions, only that part is declared void. If the valid part cannot be separated from the invalid part, the whole law is void. Article 13 is the basis of this doctrine, since both clauses say a law is void “to the extent” of the inconsistency.

The key test is the intention of the legislature: would it have enacted the valid part if it had known that the rest was invalid? In A.K. Gopalan v. State of Madras (1950) the Court struck down Section 14 of the Preventive Detention Act (1950) and held the rest of the Act valid. In Kihoto Hollohan v. Zachillhu (1992) it struck down paragraph 7 of the Tenth Schedule and upheld the rest.

Doctrine of Eclipse

The doctrine of eclipse flows from Article 13(1). A pre-constitution law that is inconsistent with a Fundamental Right is not a nullity from its very inception. It becomes only inoperative from the commencement of the Constitution. It is overshadowed or eclipsed by the Fundamental Right, remains dormant, and is not dead.

The law continues for past transactions, for rights acquired and liabilities incurred before 26 January 1950, and for non-citizens who do not have the Fundamental Right. If the shadow is removed by an amendment of the Constitution, the law becomes enforceable again. The Court enunciated the doctrine in the Bhikaji case (1955), where a motor transport provision that became void under Article 19(1)(g) revived after the 1st Amendment Act (1951) amended Article 19(6).

Doctrine of Waiver

Under the doctrine of waiver a person may give up a right voluntarily. The Supreme Court held that this doctrine does not apply to the Fundamental Rights in India. A citizen cannot waive a Fundamental Right, because the rights are mandatory on the State and are placed in the Constitution as a matter of public policy and not only for individual benefit. In Basheshar Nath (1958) the Court held that the right under Article 14 could not be waived, and in Olga Tellis (1985) it said there can be no estoppel against the Constitution.

Why Is This Topic Important?

• Source of judicial review Article 13 is the textual basis of the power to strike down laws
• Link to the basic structure The amendment cases turn on whether an amendment is a law under Article 13
• Frequent in Prelims The meaning of law and the three doctrines are asked often

What Came Next?

The next topic covers the Right to Equality under Articles 14 to 18, the first of the six Fundamental Rights.

Key People and Terms

• Void Having no legal force to the extent of the inconsistency
• Judicial review The power of the courts to declare laws unconstitutional
• Severability Only the offending part of a law is struck down
• Eclipse A pre-constitution law is dormant, not dead, because of a Fundamental Right
• Waiver Giving up a right voluntarily; not allowed for Fundamental Rights
• Basic structure Features of the Constitution that Parliament cannot alter

Exam Corner

Mains Angle

Questions on this topic usually ask how the courts protect the Fundamental Rights against legislation. Use these points to add depth.

• Judicial review Article 13 together with Articles 32 and 226 lets courts strike down laws
• Wide meaning of law Ordinances, rules, notifications and custom can all be challenged
• Amendments The shift from Shankari Prasad to Kesavananda Bharati shaped the basic structure doctrine
• Supporting doctrines Severability limits the damage, eclipse preserves old laws, and non-waiver protects the rights