Article - 13: Laws inconsistent with or in derogation of the Fundamental Rights:

1. 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
2. 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.
3. In this article, unless the context otherwise requires:
   
   1. Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having in the territory of India the force of law;
   2. laws in force includes laws passed or made by a 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.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. Nothing in this article shall apply to any amendment of this Constitution made under article 368.] – Inserted by the Constitution(24th amendment) Act, 1971.

Part III of the Constitution exists with the same objective that our rights and freedoms should be protected against the State’s arbitrary invasion. So this means that Sate’s actions should be judged on the basis of their impact on the rights and freedoms of the people. And this entire concept is Article 13. Fundamental Rights have existed since the time our present Constitution has existed i.e. from 26 January 1950 that means fundamental rights have become operative from this day. Basically, Article 13 deals with 4 principles relating to Fundamental Rights.

1. 13(1) – It deals with Pre- Constitutional laws. Many different laws were present before the constitution came into being force, and remained in effect after that. So, this article provides that those laws (existing before the constitution) which are inconsistent with Fundamental Rights become void and others will remain valid.
   
   There are two doctrines which are related to this article that are the following:
   
   1. The doctrine of Severability (to separate):
      It is a type of filter for the laws in which every law has to be passed. The filter will see that the laws are consistent with the fundamental rights or not, if not then that law or article will be separated from the act.
      
      Case: A.K. Gopalan v. State of Madras AIR 1950 SC 27 – In this case section 14 of the Preventive Detention Act was challenged. According to section 14, if any person is detained under this act then he cannot know the grounds of detention in the court. So, this section was against FRs. If we apply the Doctrine of severability then only section 14 of this act was inconsistent with fundamental rights so, it will be separated from the act.
      
      
   2. The doctrine of Eclipse (to hide):
      Eclipse means to shadow something, to hide. Those rights which are inconsistent with FRs shall be shadowed by FRs which means that they shall not cease to exist, but only become inoperative. In the future when due to amendment these shadowed rights become consistent with FRs then they become operative again.
      
      Case: Bhikaji Narain Dhakras v. State of M.P. AIR 1955 SC 781:- In this case Berar Motor Vehicle Act was challenged. There were certain sections in this act which empowered the state government to transfer the ownership of all of the motor business to itself. After 1950 all those provisions become violate article 19. now all the rights which are inconsistent with FRs will be removed after that we will apply the doctrine of Eclipse, and say that FRs will prevail over these sections means all these sections will become inoperative.
      
      After some time Article 19 was amended and the government was authorized to monopolize certain businesses. So, those sections which were inoperative because of section 19, will now become operative.
      
      
2. 13(2): It deals with Post-Constitutional laws. According to this article after the enforcement, the State is prohibited to make such laws that are inconsistent with Fundamental Rights. They will become void.
   
   Case: State of Gujrat v. Ambica Mills AIR 1974:
   In this case, a certain labour welfare fund was challenged. It contained certain questions which were against fundamental rights. It was clear that laws that are inconsistent with fundamental rights will not be made but here the question arises that can we made laws that are inconsistent with fundamental rights for companies or non-citizens because this respondent was a company.
   
   It was said by the Supreme Court in this case that no law will be made which are inconsistent with fundamental rights and even if such law is made it shall not apply to the citizens. But all those categories of parties that have not been granted fundamental rights like companies, non-citizens, for them that piece of legislation is still operative that is not void, that is valid.
   
   
3. 13(3): This article said that all those laws which affect the legal rights of the citizen will cover under article 13 i.e. any ordinance, order, bye-law, rule, regulation, notification, custom, or usage. However, there are two exceptions to it:
   
   • Laws which has administrative directions/ instructions for guidance & not meant as an enforceable legal obligation then will not cover under this article.
   • Personal laws are not included in Article 13.
     
     
4. 13(4): Nothing in this article shall apply to any amendment of this Constitution made under article 368.

The question was arises that does amendment can be challenged or not? To answer this question that who is supreme the Supreme Court or the Parliament, for clarification this article was inserted by the 24th amendment,1971.

We can understand it by following case laws:

1. Shankari Prasad v. UOI AIR 1951 SC 458 – SC held that the meaning of law under article 13 does not include a constitutional amendment. So, constitutional amendments cannot be challenged u/a 13.
   
2. Golaknath v. State of Punjab AIR 1967 SC 1643 – In this SC held that the power of Judicial Review is supreme even amendments can be challenged u/a 13. So, the constitutional amendment can be challenged.
   
3. 24th Constitutional Amendment Act: this inserted article 13(4) in the constitution which said constitutional amendment made under article 368 cannot be challenged.
   
4. Kesavananda Bharti v. State of Kerala AIR 1973 SC 146 – in this case, the Supreme Court said that constitutional amendments cannot be challenged u/a 13.

Basic Structure of the Indian Constitution
Basic structure means the idea is to preserve the nature of Indian democracy and protect the rights and liberties of people. It is a conflict between Article 13 and Article 368. Article 13 serves as the protector of Fundamental Rights whereas article 368 holds the power to amend the constitution.

When these articles clash with each other then some important questions come before us like can the constitution can be amended by the parliament, can the preamble can be amended, can the fundamental rights be amended, is the amending power of article 368 absolute, etc. So, the whole discussion is for tussle of powers that who is supreme between the Judiciary or the Parliament. Let’s understand it in the following cases.

1. Shankari Prasad v. UOI:

   The first Constitutional Amendment Act was challenged in this case, widely known for the abolition of the Zamindari system. In this amendment act, certain laws were brought about which were curtailing the right to property, and to protect those laws articles 31a and 31b were inserted in the constitution. So people started looking at 31a and 31b as an attack on the Right to Property then the question arose whether the right to property can be served whether the parliamentarians amend the fundamental rights. The judgment followed that article 13(2) which is a protector of the FRs the word law in it only means in the ordinary sense that is when a law is made exercising the legislating power and now constituent authority therefore article 368 includes the power to amend the fundamental rights
   

2. Sajjan Singh v. State of Rajasthan:

   In this case, the seventeenth Constitutional Amendment Act was challenged because it was restricting the powers of the high court. Then again the question arises that what can be amended and what cannot be. So, in this case, they took a view of the earlier case that is Shankari Prasad case and said that the meaning of the words ‘amendment of this constitution’ u/a 368 meant amendment of any part of the constitution including fundamental rights. They said fundamental right is also a part like the other parts of the constitution that’s why they can also be amended. So, in this case, it was held that the whole constitution can be amended by the parliamentarians.
   

3. Golak Nath v. State of Punjab:

   In this case, again the 17th CAA was challenged this time the question was whether the power to amend the FRs is unlimited or limited. In this case, 11 Judge bench was constituted, such a large bench for the first time. Supreme Court reversed prior decisions of the court, they said that the power to amend the constitution including the fundamental rights is not unlimited. Article 368 has subject to limitations of Judicial Review in amendments, also the word ‘law’ used under Article 13(2) includes amendments and if any amendment violates fundamental rights it would be void.
   

4. 24th Constitutional Amendment Act:

   Through this amendment act, they inserted article 13(4), which means no judicial review over the amendments takes place which will amend u/a 368. So, now the parliament can dilute the constitution including the fundamental rights.
   

5. Kesvananda Bharti v. State of Kerala:

   In this case, the 24th CAA was challenged. Here the question arose that what does the scope of the amendment that the parliament reserves. This time the Supreme Court gives a balanced judgment, they said the power to amend the constitution was already implicit in the constitution the 24th amendment act merely made it explicit however they said the basic features cannot be amended. So, now they said that Parliament can amend the entire constitution to form a new constitution however it should survive through its basic features which means there are certain implied restrictions for amending the constitution and the basic features cannot be amended. Over the question ‘scope of amendment of article 368,’ the Supreme Court said that it was not the intention of the constitutional makers to use the word amendment in its widest sense it was their intention and belief that FRs along with fundamental features would always survive through in a welfare state.
   

6. Indira Gandi v. Raj Narain:

   In this case, it qualified certain features as basic features also through this case clauses 4 and 5 were added to article 368. Clauses 4 and 5 said that even if part III of the constitution was amended it cannot be questioned in any code. They clearly said that there is no limitation on the power of parliament to amend the constitution. It was held that parliament is the will of the people and if the people want to amend the constitution then they can use their power through parliament and the constitution can be amended, there should be no limitation over it.
   

7. Minerva Mills v.UOI:

   In this case, the validity of 42nd CAA and clauses 4 and 5 of article 368 that were inserted under 42nd CAA was challenged. The Supreme Court said that these two articles were attacking the basic features of the constitution therefore these two articles were held unconstitutional by the Supreme Court.
   
   After this case, it was finally settled that the Constitution is supreme neither the Judiciary nor the Parliament and the parliament cannot exercise unlimited amending powers. The Constitution is precious you cannot destroy it.
   
   Meaning of Basic structure is not defined anywhere but when there is a conflict between law and executive or legislature then to prohibit arbitrariness of the State and executive this concept was given.

Judicial Review:
Legislature has the power to make laws, this power is not absolute. Judicial Review is the process by which the Judiciary reviews the validity of laws passed by the Legislature. This power was conferred to the Supreme Court and High Court under article 13 of the Indian Constitution. This power protects and enforces the Fundamental Rights guaranteed in Part III of the Constitution.

Written By: Jagpravesh Singh