Introduction & Summary
Article 13 of the Indian Constitution is a cornerstone of the Fundamental Rights (Part III), as it establishes the supremacy of these rights over all laws and confers the power of judicial review upon the courts to enforce this supremacy. It declares that any law inconsistent with or in derogation of Fundamental Rights shall be void to the extent of such inconsistency.
This fundamental principle applies to both pre-constitutional and post-constitutional laws. Article 13 also provides an inclusive definition of 'law', ensuring broad scrutiny. The interplay between Article 13 and Article 368 (power to amend the Constitution) has been a subject of intense judicial scrutiny, leading to important clarifications regarding constitutional amendments.
Furthermore, the Supreme Court has evolved several crucial doctrines like Severability and Eclipse to operationalize Article 13 effectively, shaping the landscape of constitutional law in India.
Article 13: The Pillar of Judicial Review
Article 13 is pivotal as it explicitly provides for the power of judicial review to the Supreme Court (under Article 32) and High Courts (under Article 226). This power enables them to declare any law unconstitutional and invalid if it contravenes any of the Fundamental Rights.
Article 13(1): Pre-constitutional Laws
"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 [Part III], shall, to the extent of such inconsistency, be void."
- Deals with laws pre-January 26, 1950.
- Inconsistent laws become void from Constitution's commencement.
- Generally prospective invalidation; past transactions unaffected.
- Key relevance for Doctrine of Eclipse.
Article 13(2): Post-constitutional Laws
"The State shall not make any law which takes away or abridges the rights conferred by this Part [Part III] and any law made in contravention of this clause shall, to the extent of the contravention, be void."
- Deals with laws made by 'State' on or after January 26, 1950.
- Explicitly prohibits curtailing Fundamental Rights.
- Laws made in contravention are void ab initio (from inception).
- Direct source of judicial review for new laws.
Article 13(3): Inclusive Definition of 'Law'
This clause ensures that not just primary legislation, but various forms of state action and even established customs can be challenged if they violate Fundamental Rights.
Ordinance
Issued by President (Art 123) or Governor (Art 213).
Order, Bye-law, Rule
Forms of delegated legislation by executive/authorities.
Regulation
Administrative rules for implementing statutes.
Notification
Official pronouncements having legal effect.
Custom or usage
Must have the "force of law" to be scrutinized under FRs. (Application to uncodified personal laws is complex.)
Article 13(4): Constitutional Amendments & Basic Structure
Added by the 24th Amendment, 1971, this clause clarified the relationship between ordinary laws and constitutional amendments regarding Fundamental Rights, leading to the landmark Basic Structure Doctrine.
Shankari Prasad (1951) & Sajjan Singh (1965)
SC held 'law' in Art 13(2) refers to ordinary laws, not Constitutional Amendment Acts. FRs could be amended by Parliament.
Golaknath vs. State of Punjab (1967)
SC overruled previous decisions, held a Constitutional Amendment Act is also 'law' under Art 13(2). FRs were deemed immutable.
24th Constitutional Amendment Act, 1971
Parliament added Art 13(4): "Nothing in this article shall apply to any amendment of this Constitution made under article 368." Aimed to nullify Golaknath.
Kesavananda Bharati vs. State of Kerala (1973)
SC upheld 24th Amendment (Art 13(4) valid). But introduced 'Basic Structure Doctrine': Parliament can amend FRs, but not alter or destroy the basic structure of the Constitution.
Doctrines Evolved by Supreme Court
To effectively apply Article 13, the Supreme Court has developed crucial interpretative doctrines.
Doctrine of Severability
If an unconstitutional part of a law can be separated from the valid part without affecting the whole scheme, then only the inconsistent part shall be declared void and not the whole law.
Test of Separability:
- Valid and invalid parts must not be inextricably mixed.
- The remaining part must survive independently and fulfill its original purpose.
Example:
In A.K. Gopalan vs. State of Madras (1950), Section 14 of the Preventive Detention Act, 1950, was struck down as unconstitutional, but the rest of the Act was held valid.
Doctrine of Eclipse
Applies primarily to pre-constitutional laws (Article 13(1)) that are inconsistent with Fundamental Rights. Such a law is not dead but becomes dormant or overshadowed (eclipsed) by the Fundamental Right.
Key Aspects:
- The law remains on the statute book but is inoperative.
- If the constitutional impediment is removed by an amendment, the law can become active again.
- Generally NOT applicable to post-constitutional laws (void ab initio under Art 13(2)).
Example:
In Bhikaji Narain Dhakras vs. State of M.P. (1955), a pre-constitutional law authorizing state monopoly was revived after Article 19(6) was amended to permit state monopoly.
Doctrine of Waiver (Not Applicable)
The question was whether a citizen can waive their Fundamental Rights. The Supreme Court decisively ruled on this matter.
SC's View (Basheshar Nath vs. Commissioner of Income Tax, 1959):
- Fundamental Rights cannot be waived by an individual.
- Rationale: FRs are not merely for individual benefit but are public policy, upholding constitutional morality and checking state power.
- Prevents coercion of vulnerable individuals.
Current Position:
The Doctrine of Waiver is firmly NOT applicable to Fundamental Rights in India.
Strategic Learning Notes
Concise points and analytical insights for comprehensive exam preparation.
Prelims-Ready Quick Facts
- Article 13: Basis of Judicial Review. Declares laws inconsistent with FRs void.
- Article 13(1) (Pre-constitutional laws): Void to extent of inconsistency with FRs, from commencement of Constitution. (Doctrine of Eclipse applies).
- Article 13(2) (Post-constitutional laws): State shall not make laws abridging FRs. Such laws are void ab initio.
- Article 13(3) (Definition of 'law'): Includes Ordinance, order, bye-law, rule, regulation, notification, custom/usage having force of law.
- Article 13(4) (Added by 24th Am.): "Law" under Art 13 does NOT include Constitutional Amendment Acts (under Art 368).
- Kesavananda Bharati Case: Upheld 24th Am. & Art 13(4), BUT Const. Am. cannot violate Basic Structure.
- Doctrines: Severability (valid part remains), Eclipse (pre-const. laws revive), Waiver (NOT applicable to FRs).
- Basheshar Nath case: Citizens cannot waive their FRs.
Mains-Ready Analytical Insights
- Guardian of Fundamental Rights: Article 13 gives teeth to FRs, preventing legislative/executive overreach.
- Broad Definition of 'Law': Ensures scrutiny over diverse state actions & customs, challenging discriminatory practices.
- Art 13(4) & Basic Structure: A fine balance between parliamentary power and constitutional supremacy, protecting core FR sanctity.
- Doctrine of Eclipse: Practical utility for pre-constitutional laws, but void ab initio for post-constitutional laws ensures strong FR enforcement.
- Doctrine of Waiver Rejection: Upholds FRs as public policy, safeguarding vulnerable individuals from rights surrender.
- Judicial Review: Indispensable for constitutional governance, ensuring state conformity to limitations.
Current Affairs & Developments
How Article 13 continues to shape contemporary legal discourse.
Courts continuously apply Article 13 (via Article 32/226) to test the validity of new state or central laws (e.g., aspects of new criminal laws, data protection law) against Fundamental Rights like equality, free speech, or privacy. This is the most direct and frequent application of Article 13 principles in daily governance.
Discussions surrounding a Uniform Civil Code (UCC) often involve the question of whether personal laws (customary or religious) fall under "law" in Article 13(3)(a) and can be tested against FRs (e.g., Art 14, 15, 21). The judiciary has taken varied stances over time, generally being more interventionist with codified personal laws or specific state-enforced customs.
Rules, regulations, or notifications made by the executive (delegated legislation) are frequently challenged in courts for being inconsistent with Fundamental Rights, bringing Article 13(3)(a) into play. This ensures that executive actions under statutory powers also conform to constitutional limits.
The Basic Structure doctrine (linked to Art 13(4)'s interpretation via Kesavananda Bharati) continues to be a central point in debates about the extent of parliamentary power versus judicial supremacy, especially when significant constitutional amendments are discussed or challenged, ensuring the foundational principles are preserved.
UPSC Previous Year Questions
Practice with questions directly from past examinations.
Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice?
Answer: (b)
Explanation: The Supreme Court has interpreted the Right to Life and Personal Liberty under Article 21 to include the right to marry a person of one's choice (Hadiya case, Shafin Jahan vs. Asokan K.M.). While this is about a specific FR, it illustrates how laws/actions are tested against FRs, a principle rooted in Article 13.
The power of the Supreme Court of India to decide disputes between the Centre and the States falls under its:
Answer: (c)
Explanation: Disputes between Centre and States fall under SC's original jurisdiction (Article 131). Writ jurisdiction (Art 32) is for FR enforcement, which is linked to Art 13. This question helps differentiate types of judicial power.
The "Doctrine of Eclipse" is primarily relevant in the context of which provision of the Indian Constitution?
Answer: (a)
Explanation: The Doctrine of Eclipse predominantly applies to pre-constitutional laws under Article 13(1) that are inconsistent with Fundamental Rights.
What is 'Judicial Review'? Evaluate its significance as a bulwark of Fundamental Rights and a check on legislative and executive overreach in India, with specific reference to Article 13.
Direction/Value Points:
- Introduction: Define Judicial Review – power of judiciary to examine constitutionality of legislative/executive actions.
- Article 13 as Constitutional Basis: Explain Art 13(1) and 13(2) declaring laws inconsistent with FRs void. Art 13(3) defining 'law' broadly.
- Significance as Bulwark of FRs: Ensures FRs are not violated; SC/HCs as protectors (Art 32, 226); citizens can challenge.
- Significance as Check on Overreach: Upholds constitutional supremacy; prevents tyranny/arbitrary decisions; maintains rule of law.
- Doctrines: Severability, Eclipse as tools of Judicial Review.
- Conclusion: Indispensable for protecting FRs and ensuring constitutional governance.
"Article 13(2) of the Constitution of India is the bedrock of judicial review concerning post-constitutional laws." Explain this statement. How did the 24th Amendment and the Kesavananda Bharati judgment impact the relationship between Article 13 and Article 368?
Direction/Value Points:
- Introduction: Art 13(2) – State shall not make laws abridging FRs.
- Art 13(2) as Bedrock: Explicitly prohibits; declares void ab initio; directly empowers courts.
- Initial Conflict: Is Amendment 'law' under Art 13(2)? Shankari Prasad, Sajjan Singh (not law) vs. Golaknath (is law).
- Impact of 24th Amendment (1971): Added Art 13(4) to exclude amendments from Art 13 scrutiny.
- Impact of Kesavananda Bharati (1973): Upheld 24th Am.; BUT introduced Basic Structure: Amendment cannot alter basic structure (many FRs are part of it).
- Current Relationship: Amendment not tested against Art 13(2) directly, but against Basic Structure.
- Conclusion: Dynamic balance, protecting FRs while allowing amendment.
Discuss the doctrines of 'Severability' and 'Eclipse' as evolved by the Indian Supreme Court in the context of Article 13. Illustrate with examples how these doctrines have been applied.
Direction/Value Points:
- Introduction: Article 13's role and judicial doctrines to implement it.
- Doctrine of Severability: Meaning (invalid part separated); Test (can valid part survive); Application (pre/post-const. laws); Example (A.K. Gopalan).
- Doctrine of Eclipse: Meaning (pre-const. law dormant); Application (primarily Art 13(1)); Effect (inoperative, but revivable); Example (Bhikaji Narain Dhakras); Non-applicability to Post-Constitutional Laws (void ab initio).
- Purpose: Ensure FRs upheld, avoid unnecessary invalidation, practical dealing with old laws.
- Conclusion: Important jurisprudential tools for effective Art 13 implementation.
Original MCQs for Prelims
Test your understanding with fresh, challenging questions.
Article 13(2) of the Indian Constitution, which prohibits the State from making laws that abridge Fundamental Rights, primarily applies to:
Answer: (d)
Explanation: Article 13(2) specifically deals with laws made by the 'State' after the commencement of the Constitution, prohibiting such laws from infringing FRs. Article 13(1) deals with pre-constitutional laws.
Consider the following statements regarding Article 13 of the Indian Constitution:
- It explicitly grants the Supreme Court the power of judicial review over constitutional amendments.
- The term 'law' under Article 13(3) includes personal laws like Muslim personal law or Hindu personal law.
- A pre-constitutional law inconsistent with a Fundamental Right becomes void from the date of commencement of the Constitution.
Which of the statements given above is/are correct?
Answer: (a)
Explanation:
- Statement 1 is incorrect. Article 13(4) (post-24th Am.) excludes constitutional amendments from 'law' under Art 13. Judicial review of amendments comes from Basic Structure doctrine, not directly Art 13.
- Statement 2 is incorrect. The Supreme Court has generally held that uncodified personal laws are not "law" under Article 13(3)(a) for the purpose of being directly tested against FRs, though this is a debated area, especially for customs having the force of law and codified personal laws. A simple statement that it includes personal laws is an oversimplification/generally incorrect for uncodified ones.
- Statement 3 is correct. Article 13(1) states that pre-constitutional laws inconsistent with FRs shall be void to the extent of inconsistency from the commencement of the Constitution.
If a post-constitutional law is found to violate a Fundamental Right available only to citizens, and an amendment to the Constitution subsequently removes that specific Fundamental Right, what happens to the law?
Answer: (b)
Explanation: Post-constitutional laws violating FRs are generally held to be void ab initio (born dead) under Article 13(2). The Doctrine of Eclipse is primarily for pre-constitutional laws. Such a void law cannot be revived by a subsequent constitutional amendment removing the FR; it would need to be re-enacted. Option (c) is a nuance that applies when the law is inconsistent with an FR available only to citizens – it might be valid for non-citizens from the start, but the question is about its status if the FR itself is removed. The core principle for post-constitutional law violating FRs is void ab initio.
Original Descriptive Questions for Mains
Develop comprehensive answers for in-depth understanding.
"Article 13 of the Indian Constitution is not just a declaration but an operative tool that breathes life into Fundamental Rights." Discuss this statement, focusing on how the power of judicial review and the doctrines evolved thereunder ensure the primacy of Fundamental Rights.
Key Points/Structure for Answering:
- Introduction: Explain Article 13's role in making FRs enforceable.
- Article 13 as an Operative Tool: Judicial Review (Art 13(1) & 13(2)); Broad Definition of 'Law' (Art 13(3)).
- Doctrines Ensuring Primacy of FRs: Doctrine of Severability; Doctrine of Eclipse; Rejection of Doctrine of Waiver.
- Impact: Makes FRs meaningful, prevents them from being mere "parchment promises," establishes constitutional supremacy.
- Role of SC/HCs: Active enforcers.
- Conclusion: Article 13 transforms FRs into enforceable guarantees.
The relationship between Article 13 (laws inconsistent with FRs) and Article 368 (power to amend the Constitution) has been a site of significant constitutional contestation in India. Trace the evolution of this relationship through landmark judicial pronouncements and constitutional amendments, and analyze its current status.
Key Points/Structure for Answering:
- Introduction: Core issue: Can FRs be amended? Is an amendment 'law' under Art 13(2)?
- Phase 1: Parliamentary Supremacy (Shankari Prasad, Sajjan Singh): Amendment not 'law', FRs amendable.
- Phase 2: FRs as Sacrosanct (Golaknath): Amendment is 'law', FRs immutable.
- Phase 3: Parliamentary Reassertion (24th Amendment): Added Art 13(4) to exclude amendments from Art 13.
- Phase 4: Kesavananda Bharati Compromise & Basic Structure: Upheld 24th Am. BUT introduced Basic Structure Doctrine.
- Subsequent Developments: Minerva Mills, Waman Rao, I.R. Coelho.
- Current Status: Parliament can amend FRs, but not violate Basic Structure.
- Conclusion: Dynamic struggle balancing sovereignty and fundamental values.