Importance and Requirement of Analysis on Article 13 of the Constitution

Article 13 is one of the most important articles in the constitution. It defines what a law is and states that laws which are in violation of fundamental rights are not laws. The author speaks about the entire case law that finally decided that amendments are also laws. Read along to know more!

The Indian constitution is supreme. It means ‘Supremacy of the Constitution i.e. all law must be in accordance with the provision of the constitution. Parliament, while passing legislation must act in strict adherence to the specific mandates of the constitution. In other words Article 13 of the constitution envisages supremacy of the constitution. Article 13 not only asserts the supremacy of the Indian Constitution but also makes way for judicial review. This legislation creates scope for reviewing pre-constitutional and existing laws. Although the legitimacy of judicial interventions in Constitutional matters has sparked debates, yet in most cases, the power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.

Article 13 of the Constitution

  1. Laws inconsistent with or in derogation of the fundamental rights
  2. 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
  3. 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
  4. In this article, unless the context otherwise requires 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 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

 4[1]. Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

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A brief explanation of Article 13: Clauses

ARTICLE 13 CLAUSE (1)

EXISTING LAW

Clause (1) deals with pre-constitution or existing lawI.e- laws which were in force immediately before the commencement of the constitution .It gives an inclusive definition of laws in force[2].Under clause (1) all laws in force so far as they are inconsistent with the fundamental rights, shall to the extent of inconsistency become void from the date of commencement of the constitution. They become void only after court declare inconsistent with fundamental right or else till then it remain in force. Sometimes a law may be found against the fundamental rights long after the commencement of the constitution[3].

It has no retrospective effect. All inconsistent existing law become void only from the commencement of the constitution .Act done before the commencement of constitution in contravention of provision of any law which after commencement of constitution become void because of inconsistency with the fundamental right are not affected[4].In Keshavanmadhava Menon case proceeding started against the appellant for an offence punishable under sec 18 of the Act.[5]It was contended on behalf of the appellant that the act was inconsistent with fundamental right and therefore become void, under article 13(1) after January 26th 1950.Supreme court rejected this contention and held article 13(1) has no retrospective effect.

ARTICLE 13 CLAUSE (2)

FUTURE LAW

Clause (2) of article 13 relates to future law I.e-laws are made after the commencement of constitution.the states is prohibited from making any law which

takes away or abridges any of the right conferred .The concept of voidness has eventually come to considered as one of relatively void .In case of Ambica mills Ltd[6] it was raised that whether a law which takes away the fundamental right would be void. It was further explained that the meaning of word void is same in article 13(1) and article 13(2) and for that reason a post constitution law takes away the right conferred by article 19 should be operative as regards non- citizens, as it is void only to the extent of the contravention of the right conferred on citizen under article 19.In other word the it is void, not in rem but to the extent of the contravention of the right conferred by part III.

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ARTICLE 13 CLAUSE (3)

DEFINITION OF LAW

Clause (3) defines the term Law in force .The definition is enumerative rather than substantive i.e.-it mention some of the normal forms in which the law finds its expression .So understood, the definition mention the following as included in the expression “law”

Statutory law .According to Art 13 (3) the term law includes any ordinance, order, bye law rule, regulation, notification, custom or usage having the force of law. However it was held that personal law such as Hindu Law or

Muslim Law are not covered by the term “Law” under Article 13[7].

The expression ‘law in force’ under article 13 (3) includes “law passed or made by a legislature or other competent authority in the territory of India before the commencement of the constitution  not previously repealed .It includes customs and usages and also the laws passed by the British Parliament and applicable to India[8].

ARTICLE 13 CLAUSE (4)

CONSTITUTIONAL AMENDMENTS

Here in the case of Shankari Prasad v. Union of India[9] the constitution (1st Amendment) Act 1951 which amended the fundamental right guaranteed under the constitution was challenged on the ground that since the amendment had the effect fundamental right. It was not valid under article 13 (2).Supreme court rejected the contention and held that “law” in clause (2) did not include law made by parliament under article 368 amending the constitution. It followed the same principle in the case of Sajjansingh v. state of Rajasthan[10].

But in the case of Golak nath[11] the supreme court held that the word “law “in clause (2) of Article 13 included amendment to the constitution and consequently, if it take away the fundamental right then it would be declare ad void  and ultra vires.

In KeshavanandaBharati case[12] ,Supreme Court overruled the decision of Golak nath case and held that constitution (24thAmendment ) Act 1971 which inserted Clause (4) in article 13 and clause (3) in article 368 was valid .it was decided that all provision of constitution including fundamental right can be amended but the basic structure would not be amended.

Also read Article 368: Keeping Constitution Alive

[1]Constitution (24thAmendment ) Act ,1971,sec-2

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[2]Definition of  “Existing Law” in Art.366(10)

[3]John Vallamattom v. Union of India (2003) 6 SCC 611

[4]Keshavanmadhavamenon v. state of bombay AIR 1951 SC 128

[5]Refer sec 18 ,Press(Emergency Power) Act ,1931

[6]State of Gujrat v. Ambica Mills Ltd(1974)4 SCC 656

[7]State of Bombay v. Narayan,AIR 1952 Bom ,84

[8]Fugitive Offenders Act ,1881

[9]Shankariprasad v. Union of India,AIR 1951 SC 458

[10]Sajjansingh v. State of Rajastan,AIR 1965 SC 845

[11]Golak Nath v. State of Punjab,AIR 1967 SC 1643

[12]KeshavanandaBharati v. State of Kerala,(1973) 4 SCC 225