Fundamental rights are considered to be on the level of God thus no one cannot amend them . Article 13 of the constitution do upholds the supremacy over Indian constitution and do paves the way to judicial review. This prescription do enables us to review the pre-constitutional and existing laws.

Although the intervention of the judiciary in constitutional matters is a debatable topic, yet in most of the cases, the power of judiciary is considered to be the supreme and is summoned to guard and enforce the fundamental rights guaranteed in the Indian constitution under part III.

Meaning and scope
through this article (article 13), the parliament and state legislatures are being terminated from making such laws that may infringe or take away the fundamental rights that are being guaranteed by the Indian constitution itself.

The pre- constitutional laws may not be able to meet the changing and developing needs of today's world, therefore article 13 do gives the power to the supreme court and high court of India to re-write the pre-constitutional laws, so as to make the laws meet the changing conditions of today's lifestyle of people.

Similarly, the laws made after adopting the constitution must prove their similarity with the pre-constitutional laws, then only they would be considered as valid otherwise they would be assumed to be void. Part III of the constitution do exist with this objective that the rights and freedom of people do gets the protection from the arbitary invasions of the state.

Introduction to article 13

Article 13 of the constitution do talks about the four principles relating to fundamental rights. Fundamental rights do exist from the date on which the Indian constitution came into force i.e on 26th January 1950 hence fundamental rights became operative from this date only.

article 13(1) talks about the pre-constitutional laws i.e the day from which the constitution came in existence there were many laws in the country and when the constitution came into existence fundamental rights do came, therefore the laws before the existence of the constitution must prove their compatibility with the fundamental rights, only then these laws would be considered to be valid otherwise they would be declared to be void.

For example article 15 of the constitution do gives the right to education to all without any discrimination on the basis of caste, sex, religion, etc, but an Education act which came in existence in 1930 says that:
A particular group of kids would not be provided education on the basis of their caste'. As this particular clause of the act is inconsistent with that of the fundamental rights therefore it is declared to be null and void.

Moreover article 13(1) is prospective in nature but not retrospective i.e the article will be in effect from the day when constitution came in effect ..(26th jan.,1950) and the person who committed offence afterwards will be prosecuted according to the laws of Indian constitution but not according to the pre-constitutional laws.

Case Law

Keshva Madhav Menon v. State of Bombay, Air 1951[1]

In this case the petitioner published a pamphlet according to the pre-constitutional laws in 1949 but as the Indian constitution came in effect from 1950 it gave the freedom of speech and expression under article 19 of the Indian constitution, therefore the apex court said that the petitioner's trial must go on as the benefit of article 13 would not be given to him because article 13 is not retrospective in nature:

• Doctrine of severability

  The doctrine says that if some parts of the statue are inconsistent with that of the fundamental rights, then the whole statue would not be declared to be void but that particular clause would be treated to be void by the court of law.
  
  

A.K Gopalan v. State of Madras, air 1950[2]

In this case section 14 of Preventive detention act,1950 was challenged. Section 14 of the act says that if any person is being detained under this act then he or she may not disclose the grounds of his or her detention in court of law, this particular statement is inconsistent with that of fundamental rights as per article 22 of the Indian constitution, thus if we do apply the doctrine of severability here so the whole act (preventive detention act,1950) would not be declared as void but only section 14 of the act would be declared as void as it is inconsistent with the fundamental rights.

• Doctrine of eclipse

  The doctrine says that if some laws are violating fundamental rights , so they would not be declared void ab-initio but would be unenforceable for a time being i.e such laws are over-shadowed by the fundamental rights, thus in the case of non-citizens of India the law may be applicable.
  
  

Here doctrine of severability (discussed above) says that all the pre-existing constitutional laws are to be filtered out in respect with that of the fundamental rights so as to make them valid and the laws which do not respect the fundamental rights would not be declared void completely but would be over shadowed by fundamental rights and in future if any amendment is made related to such a law, it becomes valid provided that the pre-constitutional law must be consistent with that of the fundamental right.

Introduction To Article 13(2)

article 13 (2) talks about the post constitutional laws i.e it says that once the constitution is framed and came in effect then any of the state may not make laws that takes away or abridges the fundamental rights of an indivisual and if done so then it would be void till the extent of contravention.

Case Law
State of Gujrat v. Ambika mills, air 1974[3]
Here a certain labour welfare fund act was challenged, as certain sections in it were against the fundamental rights. Since the fact that the laws made by the state after the constitution is framed would be declared void if those laws are against the fundamental rights, but here the question arose that fundamental rights are only granted to citizens but what will happen in the case of non-citizens or a company (company here is the respondent i.e Ambika mills). It was held by the apex court that since the fundamental rights are only granted to the citizens but not to the company or any non-citizen, therefore the labour welfare fund act is valid.

Introduction To Article 13(3)

article 13(3) talks about the meaning of law i.e the laws whether by laws, notifications, rules, regulations, customs, usage, etc if do effect the legal rights of the citizens do come under the definition of law, thus would be considered as laws under article 13 but there are two exceptions to the same, firstly the administrative and the executive orders are being covered under article 13 but if their nature is just to give instructions or guidelines then they would not be covered under article 13. Second exception is the personal laws which are not being covered under article 13.

Introduction To Article 13(4)

This clause of article 13 do says that any of the amendment made in article 368 of the Indian constitution would not be challenged under article 13 moreover if the amendment so made would be against the fundamental rights then also it would not be challenged under article 13.

Article 13 (4) gave birth to a landmark doctrine to our constitution moreover it prohibits the parliament to make laws or amendments which are inconsistent to the fundamental rights.
The doctrine being mentioned above is the Basic Structure Doctrine.

While discussing about this doctrine two most important articles do comes into the picture, one is article 13, which acts as the protector of the fundamental rights and another one is article 368, which holds the power to amend the constitution. The doctrine is merely a big tussle of power between the judiciary and the parliament of India i.e as the power of amending the laws exercised under article 368 do gives the power to the parliament to amend the constitution, fundamental rights and the preamble too? or the Indian judiciary is supreme which do acts as the protector of law.

Shankari prasad case (Shankari prasad v. Union of India, air 1951[4]) here in the case a question arose that as per article 13, if parliament do makes any law which is inconsistent to fundamental rights would be considered invalid but if any amendment done by parliament under article 368 would be considered as valid or not? So, while answering this question it was held that in article 14 only the ordinary laws are being talked about but not the constitutional amendments .

Another case came into picture which was I.C Golaknath case (Golaknath v. State of Punjab, air 1967[5]) in this case the court over-rulled it's judgement given in Shankari prasad case by saying that:
Article 13 do includes the ordinary laws and the constitutional amendments too which means parliament cannot make any law or make any constitutional amendments which is inconsistent to fundamental rights.

In order to nulify this judgement parliament passed 24th amendment, 1971[6] by saying that:
Any amendment made under article 368 would not be considered as law and hence article 13(4) is different from the word law used in article 13(3) then again this 24th amendment was challenged in the case of Kesavananda Bharti case (Kesavananda bharti v. state of Kerala, air 1973)[7] in the following case the apex court was of the view that: 24th amendment is valid and the judgement give in Golaknath case is also valid but a basic structure of the constitution do exist which cannot be amended hence the parliament cannot even touch them i.e the Supreme court introduced a basic structure doctrine[8].

After the introduction of the basic structure of the constitution, the parliament introduced 42nd amendment, 1975[9] which is also called as the mini constitution or the constitution of Indra (Indra Gandhi), it gave the power to the parliament to amend any law in the constitution including the basic structure of the constitution, but this was again over-rulled in Minerva Mills case (Minerva Mills v. Union of India, air 1980)[10], in this case the court was of the view that judicial review is the basic feature of the constitution hence cannot be amended therefore any amendment made by parliament will go through the process of judicial review.

End-Notes:

1. https://indiankanoon.org/doc/656658/
2. https://indiankanoon.org/doc/1857950
3. https://indiankanoon.org/doc/681436/
4. https://indiankanoon.org/doc/1706770/
5. https://indiankanoon.org/doc/120358/
6. https://www.civilserviceindia.com/subject/Law/notes/24th-amendment-act-1971.html
7. https://indiankanoon.org/doc/257876/
8. http://constitutionnet.org/vl/item/basic-structure-indian-constitution
9. https://en.wikipedia.org/wiki/Forty-second_Amendment_of_the_Constitution_of_India
10. https://indiankanoon.org/doc/1939993/

Written By: Anirudh Gupta