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Review of Article 13

Fundamental Rights:

The concept of human rights has been evolved from French revolution 1789 and natural law philosophers Locke and Rousseau propounded the theory of social compact to preserve these rights. The idea of entrenching [ guaranteed rights cannot be taken away by ordinary law] is to ensure that a person may have minimum guaranteed freedom. Fundamental rights are that they may not be violated , tampered or interfered with by an oppressive government. Such fundamental rights are the foundation stone for democracy.

Fundamental Rights In India:

There are certain reasons that made our drafters make fundamental rights unavoidable in our constitution.
  1. Firstly the main political party congress had been fighting for these rights under British rule.
  2. Secondly India is a country with varied religious, cultural and linguistic groups where a sense of security and confidence had to be given to people.

The Supreme court in Pratap Singh v State of Jharkhand (2005) 3 SCC 551 held that Part III of our constitution protects substantive as well as procedural rights. It was being discussed for 38 days. Fundamental rights became operative from 26th January 1950.

Article 13:
Article 13 is the key provision as it gives teeth to fundamental rights and makes them justifiable. It protects the people where fundamental rights cannot be violated either by passing on a law or through administrative action. Article 13 talks about four principles relating to fundamental rights.

Doctrine Of Judicial Review:

Judicial review is an important factor in protecting the constitutional rights and freedom when the executive, judiciary, and legislature frame laws. The three principles of judicial review are as follows:
  • The Constitution is the supreme law of the country.
  • The Supreme Court has the ultimate authority in ruling on constitutional matters.
  • The judiciary must rule against any law that conflicts with the Constitution.

Article 13 (1) - Pre Constitutional Laws

All laws that were in force before the constitution became operative in India are called pre constitutional laws. It is prospective in nature and not retrospective. The framers of the constitution clarified that those acts, rules, orders etc. passed in pre independence shall be continued ,subject to the condition that such laws should not violate the fundamental rights conferred in part III. For example the Indian penal code 1860 was enacted in 1860. Such all laws in force in India immediately before the commencement of this constitution will be continued. However, if any act or rules or sections or any law is inconsistent with the fundamental rights such law ,act etc. is held void.

In Mithu vs State (1983 CRLJ 811) the Supreme Court of India quashed section 33 of the Indian penal code 1860, as unconstitutional and removed it from the code.

People's Union for Civil liberties VS Union of India (AIR 1997 SC 568) Telephone tapping case The petitioner filed a writ petition under Article 32 alleging that in the telephone tapping by the telephone and police department is violative of Article 19 and 21 there were several news published in the newspapers that CBI was starting telephones of politicians phones the union government tried to defend the telephone tapping under Section 5 of the Indian Telegraph act of 1885 in the interest of public.

The Supreme Court considered the writ petition as a PIL, and gave judgement in favor of the petitioners. According to the provisions of Article 13 , Section 5 of the Indian Telegraph Act ,1885 is void , as it is against the Fundamental Rights , particularly against Article 19 and 21.

This Article 13(1) gave rise to two doctrines called as:
  • Doctrine of severability
  • Doctrine of eclipse

Doctrine Of Severability:

The court here has clarified that only the invalid part of the law shall be severed and declared invalid if it can be really separated (i.e) once the invalid part is separated the valid part of law should be capable of giving the legislature's intention otherwise the entire law will be invalid. This is known as Rule of Severability.

In A.K. Gopalan v/s State of Madras, A.I.R 1950 S.C. 27 the Supreme Court ruled that where an act was partly invalid , if the valid portion was severable from the rest , the valid portion would be maintained , provided that it was sufficient to carry out the purpose of the Act.

In Jia Lal vs. Delhi Administration (Air 1962) The appellant was prosecuted for an offence under Section 19(f) of the Arms Act,1878. In fact Section 29 of the same Act provides that in certain areas, in which the petitioner was residing, it was not necessary to obtain a license for possession of a firearm.

Therefore the petitioner did not obtain any license. Section 29 was challenged as ultra vires and unconstitutional as offending Article 14 and also Section 19(f) of the Arms Act 1878 on the ground that the two sections were not severable. The Supreme Court gave judgement on the question of severability that Section 29 was Ultra vires, but not Section 19(1)(f).

Doctrine Of Eclipse:

An existing law inconsistent with the fundamental rights becomes inoperative but it's not dead all together. So the laws made before the commencement of the Constitution remain eclipsed or dormant. It will be under the shadow of the Constitution. In case any amendment of the Constitution removes the prohibition brought by fundamental rights, it becomes active and effective again. This is known as the Doctrine of Eclipse.

This Doctrine was first evolved in Bhikaji Narayan Dhakras vs State Of MP and 1955 SC 781

The Madhya Pradesh state legislature passed an act in January 1950 (before the constitution) nationalizing the motor transport before commencement of the constitution. The statue was challenged by the petitioner under Article 19(1)(g). The Parliament passed the fourth Constitutional Amendment Act 1955 on 27-4-1955 enabling the states to nationalize motor transport.

The supreme court held that the statue of Madhya Pradesh state nationalizing the motor transport in 1950 was cured by 4th Constitutional Amendment Act 1955 and therefore, the doctrine of eclipse has been applied and the MP Act was held valid Deep Chand vs State of UP (AIR 1959 SC 648) The Uttar Pradesh state legislature passed an action 24-04-1955 nationalizing the motor transport. In fact on that day the UP State was not competent to make any law on motor transport, being it was in the Central list.

The Parliament passed the4th Constitutional Amendment Act 1955 on 27-4-1956 enabling the states to Nationalize the motor transport. The Supreme Court held the statue made by the UP state could not be cured and is void by the doctrine of eclipse, being such statute was a post-constitutional one..

Article 13(2)-Post Constitutional Laws

Article 13(2) relates to future laws (i.e.) laws made after the commencement of the constitution. After the constitution comes into force the state shall not make any law which takes away the rights conferred by Part III and if such a law is made, it shall be void to the extent to which it curtails any such right.

Article 13(3):

Article 13(3) defines what law is and includes temporary laws such as ordinances and permanent laws such as acts. It also emphasizes that rules and regulations orders, by laws made by statutory authority will be law. Non legislative sources like custom and usage will also have the force of law. Article 12 states the definition of state and Article 13 states the meaning of law and the legislatures or any authority who are framing laws should keep in mind the constitutional provisions of the constitution.

Article 13(4):

Article 13(4) was inserted by the 24th constitutional amendment which was directly in conflict with Article 368 which talks about power of parliament to amend the constitution. The result of which gave rise to the doctrine of basic structure after a series of judgements which solved the tussle between the power of judiciary and the parliament of India.

Doctrine Of Basic Structure:

  1. Shankari Prasad vs Union of India AIR 1951 SC 458:
    The validity of first amendment to the constitution was challenged. The supreme court held that power to amend constitution including fundamental rights is contained in Article 368.this decision was further being approved by a majority judgement in Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.
  2. Golaknath vs State of Punjab AIR 1967 SC 1643:
    The supreme court overruled the Shankari Prasad and Sajjan Singh cases and said fundamental rights are outside the amendatory process. It also said Article 368 lays the procedure and the purpose for amendment.
  3. The 24th constitutional amendment act in 1971:
    The Parliament introduces certain changes in Article 13 and Article 368 so that the power of the Parliament to amend the fundamental rights has been asserted. Here the effect of Golaknath case was nullified.
  4. Kesavananda Bharati vs State of Kerala AIR 1973 SC 1461:
    The supreme court upheld the validity of the 24th constitutional amendment Parliament and amended any part of the constitution including the fundamental rights but the court made it clear that Parliament cannot alter the basic structure of the constitution.
  5. Indira Gandhi VS Raj Narain AIR 1975 SC 2299:
    The appellant challenged the decision of the Allahabad High Court who declared that the election was invalid. Immediately the Parliament passed the 39th amendment withdrawing the control of the supreme court over election disputes. Now the exclusion of Judicial review in election disputes in this manner damaged the basic structure.The doctrine of basic structure placed a limitation on the powers of the Parliament to introduce substantial alterations or to make a new constitution.
  6. The 42nd amendment act of 1976:
    This amendment added two new clauses to Article 368 clause(4)- it says that no amendment of the Constitution made before or after the 42nd amendment shall be questioned in any Court clause(5) -says that there shall be limitation on the constitutional power of the Parliament to amend by way of addition variation or repeal the provisions of this constitution made under Article 368
  7. Minerva Mills vs Union of India A I R 1980 SC 1789:
    The supreme court said that clauses( 4) and( 5) of Article 368 and Section 55 of the 42nd amendment act as unconstitutional as it is damaging or destroying the basic structure of the constitution.
  8. Waman Rao vs Union of India 1981 2 SCC 362:
    The supreme court said that amendments to the constitution made on or after 24.4.1973 by which the 9th schedule was amended from time to time by inclusion of various acts and regulations were open to challenge on the ground that they are beyond the constitutional power of the Parliament and they damage the of basic features of the Constitution or its basic structure.

Doctrine Of Waiver:

The doctrine of waiver of rights is based on that a person has the liberty to waive the enjoyment of rights. This Doctrine was discussed in Basheshar Nath vs Income Tax commissioner AIR 1959 SC 149 where the majority expressed its view against the waiver of fundamental right. It was held that it was not open to citizens to waive any of the fundamental rights.

Thus Article 13 serves as a protector and ensures rights of freedom to citizens in the form of fundamental rights and safeguards people from arbitrariness of the state

  • Indian constitutional law - MP Jain

Written By: Sajeetha.A, II Year - Tamilnadu Dr. Ambedkar Law University

Suggested Articles on Article 13:

  1. Article 13 of the Constitution of India
  2. Article 12 and 13 of the constitution of India
  3. Article 13 - Constitution of India
  4. Judicial Review In India
  5. Article 13 Of Indian Constitution Easy Explanation

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