The concept of the 6 Fundamental Rights of Indian constitution enshrined under part III is the identity of our constitution as they not only ensure our freedom but also protect us from arbitrary state enactments. However, the real significance of fundamental rights is given under Article 13 of the constitution of India. This Article makes all the fundamental rights justifiable. In other words, it ensures that all the laws and enactment shall be consistent with part III of the constitution. If any law violates our fundamental rights then it will be declared null and void.
In this article, we will explore the meaning and necessary ingredients of Article 13 of the constitution of India. Further, we will also look into the doctrine of eclipse and severability along with the definition of “law”.
Article 13 of the Constitution of India
In simple language, this Article talks about the legality of pre-constitutional and post-constitutional laws. This article states that if any law violates the provision of fundamental rights, then that law will be void to the extent of the violation. This Article plays an instrumental role in ensuring that parliament and the state legislature shall be bound by fundamental rights while exercising their law-making power.
Ingredients of Article 13
Article 13 talks about four principles relating to our fundamental rights. These provisions are as follows –
Article 13(1) – No Retrospective application of fundamental Rights
Our Constitution came into force on 26 January 1950 but various laws were prevalent even before that date. Article 13(1) deals with the legality of such pre-constitutional laws. As per this provision, all the pre-existing statute must prove their compatibility with the fundamental rights or either they will be declared void. In other words, if the pre-constitutional statutes violate the provision of fundamental rights, then they will be null and void.
For example – Article 15 of the constitution ensures that the right to education shall be provided to each and every citizen without any discrimination on the ground of caste, religion, sex, birth, etc. But at the time of 1930, an Education Act was enacted which provided that the education will only be provided to a certain category of students on the basis of their Caste. This Act was still in force at the time when the constitution came into force and consequently it was declared void on the ground of violating Article 15 of the Constitution.
However, the most important thing to note is that article 13(1) is only prospective in nature. It means that this provision came into force only after 26 January 1950 and not before that. If a person committed an offence prior to the aforesaid date, then that person will be subject only to the pre-constitutional laws even though they violated the provision of Part III of the constitution.
For example – Mr X was convicted on the ground of non-payment of a certain kind of tax on 24th January 1950. However, after 26th January 1950, this tax was abolished as it was in violation of certain fundamental rights. But, it is important to note that Mr X will be prosecuted as per the pre-constitutional law and will be subject to punishment thereafter. This is because of the fact that Article 13(1) is only prospective in nature.
However, the procedure for such prosecution shall not be in violation of the procedure established by our Constitution.
Doctrine of Eclipse
The literal meaning of eclipse is obscuring or hiding something for a period of time. This doctrine is provided under Article 13(1) of the constitution. It states that any pre-constitutional law which violates the fundamental right will not be invalid or dead but it is only overshadowed by the fundamental right. This shadow can be removed by a constitutional amendment in the fundamental right. After the amendment, the eclipse will be removed and the law will be operative once again.
This eclipse in Article 13(1) means that any violating pre-constitutional law will remain in the dormant situation and will not be deemed null and void.
Essential Elements of Eclipse
- This doctrine is only applicable to pre-constitutional law.
- The law must be inconsistent or in violation of the fundamental rights provided under Part III of the constitution.
- After the constitution came into force, these laws merely became inoperative and not dead or void.
- This eclipse can be removed by an amendment to that concerned fundamental right and that law will start functioning again.
Bhikaji v State of MP AIR 1955:
This is one of the landmark cases related to the doctrine of the eclipse. In that case, an Act was passed before the constitution came into force in relation to nationalizing the motor transport business. After the commencement of the constitution, the petitioner challenged its validity on the ground of Article 19 of the constitution. However, during the proceedings, the central government brought the 4th constitutional amendment that empowers the state to nationalize motor transport. The court held that the doctrine of eclipse will be applicable here as the shadow was removed by the 4th constitutional amendment. Thus, the Act will be operative again with a similar force.
It is important to note that the doctrine of Eclipse will have no bearing on the post-constitutional laws. In the case of Deep Chand Vs State of UP, it was held that the post-constitutional laws are void ab initio and they have no legal validity since their inception. Thus, this doctrine of the eclipse will not be applicable to them
Article 13(2): Validity of Post constitutional Laws
This provision mainly deals with those laws which are enacted after the commencement of the constitution. As per the Article, any law made by the parliament or by the state legislature that goes inconsistent with the fundamental rights will be void ab initio.
In the case of Mahendra v. State of U.P., the Supreme Court explained the true scope and nature of Article 13(2). The court held that this Article put a restriction on the law-making power of the state. The parliament or the state legislature necessarily need to comply with the provision of Article 13(2) and make sure the law is consistent with all the fundamental rights. This restriction is in addition to the restriction placed by the 7th schedule of the constitution relating to the power of making laws as per the 3 lists of the constitution.
Doctrine of Severability
The literal meaning of severability is “to separate something”. This doctrine is provided under Article 13(2) of the constitution. This doctrine states that if any post-constitutional law violates some fundamental rights, then after separating the offending provision from the statute, the rest of the law will be deemed as valid. In other words, we can say that if we separate the unconstitutional part from the statute, then we should only declare the separated part void and not the entire law.
The doctrine is derived from the wording “to the extent of such inconsistency” which means that only the inconsistent law will be deemed void and not the entire law.
A K Gopalan v. State of Madras (AIR 1950 SC 27)
This is the landmark case in relation to the doctrine of severability. In that case, Section 14 of the Preventive Detention Act, 1950 was challenged before the court as it curtailed the right of the detained person to know the ground of his detention. The Hon’ble Supreme Court applied the doctrine of severability and held that only Section 14 will be declared unconstitutional and not the entire Act.
Further clarity on the doctrine of severability was given by the Hon’ble Supreme Court in the case of R.M.D.C vs Union of India. In that case, the criteria behind the invoking of this doctrine were laid down. These criteria are as follows –
- This doctrine is only applicable when both the valid and the invalid portions can be severed or separated from each other.
- If in a case, both the valid and the invalid parts are closely intermingled and it is not possible to separate them, then the whole of the statute will be declared void.
In the case of Kartar Singh Vs State of Punjab, there was a similar case in which various provisions of the Terrorist and Disruptive Activities Act (TADA) was challenged before the court. The Hon’ble supreme analyzed various provisions and found that there are various instances in which the violation of the fundamental rights took place and it is not possible to remove them from the Act. So, the court declared the entire TADA Act unconstitutional and the doctrine of severability was not applied.
Article 13(3) – Definition of Law
The definition of the term “Law” and the “law in force” is given under Article 13(3) of the constitution. It is important to note that this definition is an inclusive one and it encompasses the following things –
- An Ordinance promulgated by the president because it is issued after exercising the legislative powers of the executive
- It also included an order, rules, regulations and bye-laws created for a particular purpose. They generally fall under the category of subordinate legislation which is not enacted by the legislative body.
- Any custom or usage having the force of law are also included in the ambit of Article 13(3). These customs and usages are not enacted by the legislature. The main purpose of giving this broad definition of law was to predict all possible scenarios that in future hamper the rights of individuals.
- An administrative rule or some regulations made by some statutory body like SEBI, RBI, etc. will also come under the ambit of the law.
- It is important to note that personal laws like Hindu Law or Muslim law will not fall under the ambit of Article 13(3) of the constitution.
- The term “law in force” implies that the laws made by any legislature or any other competent authority before the commencement of the constitution.
This Article 13(4) was introduced in the Constitution by the 24th constitutional Amendment in 1971. It is an overriding provision which states that any amendment made under Article 368 of the constitution will not be challenged under Article 13 of the constitution. It is important to note that even if the said amendment violates the provision of fundamental rights, still Article 13 will not be applicable to them.
This provision was incorporated as a result of the continuous struggle of power between the executive and the judiciary during the time of Indira Gandhi. In the Shankari Prasad Vs Union of India case, the Supreme Court held that an amendment to the constitution is not a law and the state has unlimited power to amend the constitution even if they violate the provision of the constitution.
However, In Golaknath Vs State of Punjab, the Supreme Court changed its earlier stance and held that the amendment under 368 will be considered as a “Law” provided under Article 13.
This tussle got settled in Kesavananda Bharati Vs State of Kerala wherein the Hon’ble court upheld the validity of the 24th Constitutional amendment and held that the amendment under Article 368 will not be considered as a law. But, it was also clarified that the power of amendment shall be subject to the basic structure of the constitution.
In the history of our Constitution, Article 13 has played a vital role in shaping our constitutional jurisprudence by the mechanism of judicial review. Our Constitution is dynamic in nature and with the help of Article 13 various old taboos and stigma from our society got abolished like triple talaq, homosexuality, etc. This Article served as a ground on which the legality of various pre-constitutional and post-constitutional laws are ascertained.
The two terms provided under Article 13 namely “inconsistency and contravention” played a vital role in striking off those statutes that are violative of our fundamental rights and enforce the spirit of constitutionalism in the society. Lastly, it can be said that Article 13 provided teeth to our fundamental rights by making them justifiable in nature.