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Article 13 of the Indian Constitution

    Article 13 of the Indian Constitution
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    Article 13 of the Indian Constitution

    Article 13 of Indian constitution
    • Article 13 of the Indian Constitution declares that all laws that are inconsistent with or in derogation of any of the Fundamental Rights shall be void.
    • Article 13 openly confers the power of Judicial Review to the Supreme Court (Article 32) and the High Court (Article 226) to declare a law unconstitutional and invalid, if they violate Fundamental Rights.

    What is Article 13 (1)?

    Article 13 1
    • Article 13 (1) of the Indian constitution says that all the laws enforced in India immediately before the commencement of the Indian Constitution shall be unconstitutional & void if they violate one or more provisions of Part – 3, i.e Fundamental Rights.
    • Article 13 (1) talks about the pre-constitutional laws i.e the day from which the constitution came into existence there were many laws in the country and when the constitution came into existence.

    What are Pre-Constitutional Laws in Article 13?

    pre constitutional law
    • Laws which are made before the commencement of Indian Constitution.

    Explanation –

    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.

    But there are certain laws that were made before 26th January 1950 especially during the colonial rule before independence.


    Let us take a hypothetical example to understand it –

    Suppose Britishers during 1925 made some Law ( L 1 ) related to Press:

    Under L 1 Britishers made three laws –

    a) To open Press – One needs to take permission from the Government.

    b) Government can take away or Shut Down the Press at any point in time.

    c) Government can confiscate & can put you behind bars.

    Now Consider the above three laws in today’s scenario:

    In Option – 

    a) There is no violation of your Fundamental Right.

    b) There is a clear violation of your Right to Freedom of Speech and Expression ( Article 19(1)(a) )

    c) Here is a violation too. You need to informed and given the reason, on what grounds you were detained.


    So if Article 13 of the Indian Constitution is applied to the above three Laws under L 1. Option ( b ) & Option ( c ) will be declared unconstitutional & void.   

    NOTE- Explanation is for understanding only.


    Bhika Ji Narain Case 1955

    • The Supreme Court said that a Pre-constitutional Law remains dormant but not dead & can be revived again if any amendment to the law removed the clash between the law & the Fundamental Right.
    • So that law comes under the shadow of Fundamental Rights and remains eclipsed or under the shadow till the time the conflict is removed.

    Explanation –

    As we know Article 13 (1) says that the laws will be invalid on the ground of contravention of any of the Fundamental Rights.


    But it is the Wisdom of our Supreme Court which said that –

    Laws are made for some reason by the Parliament.

    So instead of completely removing them, let them be in a dormant state & if again needed to, bring them back.

    For Example, Armed Forces Special Powers Act (AFSPA) is misused many times, but it is also used to deal with extreme situations in some states.


    So Supreme Court applied logic and came with the theory of Doctrine of Eclipse.

    As we have seen in our hypothetical example above.

    Let’s say that Article 19 (1) (a) i.e Right to Freedom of Speech & Expression itself is removed from Fundamental Rights in the future.

    Hence, tomorrow we can revive our Law L 1 (b) which is “Government can take away or Shut Down your Press at any point in time.”
    Now it will not be a violation of Fundamental Rights.

    Until then we can make it eclipsed and not use it under “Doctrine of Eclipse”.

    Note – Explanation is for understanding only.


    Deepchand Case 1959

    • In Deepchand Case 1959, the Supreme Court said that Doctrine of Eclipse can be made applicable only to Pre-Constitutional Laws.
    • The Post Constitutional Laws cannot be revived as they are void ab-initio (from initially) so they do not get protection under Doctrine of Eclipse.

    Ambika Mill Case 1994

    • However, in Ambika Mill Case (1994), the Supreme Court overruled its earlier decision & held that Doctrine of Eclipse can be extended to protect a Post-Constitutional Law as well.

    What is Article 13 (2)?

    Article 13 2 post constitutional law
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    • Article 13(2) of the Indian Constitution says that the state shall not make a law that takes away or abridges one or more fundamental rights.
    • If such a law is made by the parliament, it shall be unconstitutional & void to the extent of inconsistency.
    • It talks about Post constitutional Laws violating one or more provisions of the Fundamental Rights shall be null and void.

    What are Post Constitutional Laws in Article 13?

    post constitutional law
    • Laws made after the commencement of the Indian Constitution.

    Shankari Prasad Case 1951

    • The First Amendment Act 1951 amended Article 15 & introduced Article 15(4). This was seemingly against the spirit of Article 13(2).
    • It also amended Article 19(6) putting reasonable restrictions on right to occupation.
    • It also brought 9th schedule to the constitution which took away the power of the Judicial Review.

    Supreme Court said that Parliament enjoys two types of powers –

    1. Ordinary Legislative Powers.
    2. Constitutional Legislative Powers.
    • So amending the Constitution comes under Constitutional Legislative Powers of the Parliament and it will not fall in the ambit of Law, mentioned in Article 13(2).
    • Therefore the Supreme Court upheld the Constitutional validity of the 1st Amendment Act.
    • However, the Court said, any enactment of parliament made in exercise of Ordinary Legislative Power will be called law which comes under the scope of Article 13(2) will be void if it violates Fundamental Rights.

    Explanation-

    Under Article 15

    Article 15(1) says that there should be No Discrimination on certain grounds ( such as Caste, religion, etc)

    But Article 15(4) was added under Article 15 by the 1st Amendment Act 1957.

    Article 15(4) says that there should be special provisions for Socially and Economically weaker sections. It tells about reservations.

    Article 15(4) was added later in the Indian constitution by the 1st Amendment act.

    Both Article 15(1) & Article 15(4) are contradicting each other.

    Therefore, the thing got challenged under Article 13(2) which led to the famous case “Shankari Prasad vs. Union of India case” in 1951.


    The argument of the supreme court came in favor of the parliament and the Supreme court said that the change in Fundamental Rights was done by amendment & amendment of the constitution can be done by parliament by exercising Constitutional Legislative Power.

    NOTE- Explanation is for understanding only.


    Golakhnath Case 1967

    • In Golakhnath Case 1967, the Supreme Court overruled its earlier decision & said that Article 368 contains only the procedures to amend the constitution.
    • It did not confer power to the Parliament to use this procedure to amend the constitution.
    • Therefore, the Parliament has only one type of legislative power which is ordinary legislative power & by using that Parliament cannot amend the constitution.

    Explanation –

    In Golakhnath Case 1967 the Supreme Court mentioned that Under Article 368, there are only procedures to amend the constitution.

    Nowhere it had mentioned that parliament had the power to use those procedures.

    Parliament Responded to the Judgement by bringing the 24th Amendment Act 1971. Parliament had changed the language and explicitly mentions the “powers and procedures” to the parliament.

    NOTE- Explanation is for understanding only.


    Parliament responded by 24th Amendment Act 1971 which amended the title of Article 368 which now reads-

    • ” The procedure to amend the constitution & power to amend the constitution.”

    Keshvanand Bharti vs State of Kerela case 1973

    • The court said that Parliament by virtue of its power can amend any part of the constitution including Fundamental Right provided it does not destroy the “Basic Structure Of The Constitution.”

    Explanation –

    The “24th Amendment Act” got challenged in the “Keshvanand Bharti vs State of Kerala case 1973.”


    At this time there was a New Bench.

    The court said that the 24th Amendment Act is legal, otherwise, the constitution will not be evolving with time.

    The Parliament should have the power to amend any part of the constitution including the Fundamental Rights but while touching they should not amend the “Basic Structure Of The Constitution.”

    NOTE- Explanation is for understanding only.


    Frequently Asked Questions (FAQ)

    What is the basic structure of the constitution?

    basic structure of the constitution
    • The basic structure of the constitution are those parts and features of the constitution without which the constitution loses its character.
    • The Supreme Court did not define exhaustively (completely) the basic structure of the constitution but in various judgments, we keep knowing them.



    Example: Judicial Review, Secularism, Sovereignty, Federalism, the mandate to build a welfare state, etc.

    Congratulations, you have finished article 13 of the Indian Constitution. If you have any doubts or queries, feel free to leave a comment below. We will respond as soon as possible.

    Or Email Us At support@namastesensei.in

    MORE ARTICLES:

    Article 15Article 16
    Article 14Article 17
    Preamble of Indian ConstitutionRight to Freedom Article [19-22]

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