Analysis of Article 13 of the Indian Constitution

Article 13 expressly lays down the supremacy of the Fundamental Rights over any other law if there is any inconsistency between the two. It prevents the legislature from making any law in contravention of Part III of the Constitution i.e., the Fundamental Rights.

Article 13 reserve and preserve the fundamental rights of the citizen, protecting them from laws that may otherwise infringe upon our freedom.

Article 13 requires that all amendments and laws passed by the Parliament are tested based on their validity under the Indian Constitution.

Article 13 also gives the power to declare any pre-constitutional law which is inconsistent with the Fundamental Rights as a void to the extent of its inconsistency. It thus helps review the pre constitutional law as well as the existing laws, thereby paving the way for judicial review.

The definition provided under article 13 is such that a law if not completely inconsistent with the fundamental rights, can be saved from being declared absolutely void.

The conditions under which such laws could be saved have been laid down buy the apex court of our country through its various landmark judgments.

The important doctrines laid down under the said article are Doctrine of eclipse, doctrine of severability and doctrine of waiver.

Article 13 of the Indian Constitution has four clauses.

Clause (1) of Article 13 deals with the pre constitutional law while clause (2) with the post constitutional law.

As per clause (1) any law that had been in force in the country before the commencement of the constitution if found to be inconsistent with the fundamental rights, would be declared void to the extent of its inconsistency. It is important to mention here that such laws become void only when so declared by the courts and not before that.

Acts done before the commencement of the constitution in contravention or in pursuance of the existing laws, that after the commencement of the constitution becomes inconsistent with the fundamental rights shall not be affected. Hence, the article does not have retrospective effect.

In Keshavan Madhava Menon v. State of Bombay, proceedings had been initiated against the appellant for an offence that was punishable under Section 18 of the Press (Emergency Powers) Act, 1931.

It was contended on behalf of the appellant that the impugned act was inconsistent with the fundamental rights guaranteed by the constitution, therefore it has become void and hence the proceedings against him cannot be continued further. But, the court rejected his contention and held that the article does not have retrospective effect and it cannot render such laws that has now become inconsistent with the fundamental rights, void ab initio for all purposes.

Clause (2) of Article 13 relates to post constitutional laws i.e., those laws that were made after the commencement of the constitution. As per this clause, the state cannot make any law that abridges or takes away the fundamental right of a person and if it does so, then such law would be be void to the extent of its contravention.

Clause (3) of the article defines the term “law” and “laws in force”.

The definition includes statutory laws that may be made either directly by the legislature or by the subordinate authorities in exercise of their delegated legislative powers.

Such laws made under delegated legislation include rules, notifications , orders, regulations and bye-laws as mentioned under this clause and other such laws.

Apart from this, administrative orders of the executive, made in pursuance of statutory authority, if affect the legal rights of the citizens, would very much fall within the meaning of “law” under this section.

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