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[Article 13]
[Constitution]
Constitution Subarticle
Article 13(4) in Constitution of India
Article 13 (1) states that all the laws which are made before the Constitution will be void as long as they are violating the provisions of the Fundamental Rights. It further states that only that part of the law which will be void which is against the provisions of the constitution and not the whole law itself. This guarantee is against the existing laws and future laws and not to the laws which are made before the commencement of the constitution.
Article 13(2) states that all the laws which are made after the commencement of the Constitution are void to the extent of the infringement of the Fundamental Rights given in part 3 of the Constitution.
The ‘Doctrine of Eclipse’ asserts that all the Pre-Constitutional laws which are against the fundamental rights of the Indian Constitution will become dormant and not dead. They will remain dormant as long as the state does not amend the law and its infringing nature. So this doctrine applies to only Article 13(1) of the Indian Constitution.
In Keshavan Madhvan Menon v. State of Bombay, the court said that the law which is infringing the rights of the citizens after the commencement of the constitution is ‘void ab initio’ for the citizens of the country but it will remain enforceable for the non-citizens and companies. The doctrine of Eclipse makes the law unenforceable but it doesn’t make the law void ab initio.
The ‘doctrine of Waiver’ means that a person who is receiving a right or a privilege can waive that right according to his will. Once the right is waived by the individual then they cannot claim it back. In Behram v. State of Bombay, it was decided by the court that the rights which are given in part 3 of the constitution cannot be waived by an individual.
The ‘Doctrine of Separability’ means that if a part of a law is against the provisions of the constitution then only that offending part will be declared as void and not the whole statute. This doctrine is applied in both Article 13 (1) and Article 13 (2) of the Indian Constitution. In R.M.D.C. v. Union of India, AIR 1957, Supreme Court has given some rules relating to this doctrine:
“1. It is important to understand the intention of the legislature before using this doctrine.
2. When separation of invalid part of the statute is very difficult then the whole law will be held as invalid.
3. If after deleting the invalid part, the valid part has no value left to it then the whole act will be rejected in its entirety.”
Article 13(3) (a) defines “Law”. According to this section, Law includes any ordinance, order, bye-Law, rule, regulation, notification, custom or usages. This definition of law is given a wide meaning so that it can be added to a wide variety of state instrumentalities.
In Ahmedabad Women Action Group v. Union of India, AIR 1977, Supreme Court said that personal laws (Hindu Law, Muslim Law, and Christian Law) are not part of the definition of Law under Article 13. The Bye-Laws made by the Cooperative Societies are also not part of the definition of Law.
There have also been other discussions on whether “Law” includes constitutional amendments. This question was first decided in the case of Shankari Prasad v. Union of India AIR 1951. In that case, the Supreme Court held that the word law under Article 13(2) doesn’t include a constitutional amendment. This entailed that the Parliament has power to amend the Fundamental Rights according to their will.
Later in the case of Golak Nath v. State of Punjab, AIR 1967, the Supreme Court overruled the Shankari Prasad verdict and stated that the word ‘Law’ in Article 13(2) includes the constitutional amendments. If any constitutional amendment is infringing the Fundamental rights then that amendment will be void.
To nullify the Golak Nath decision the Parliament passed the 24th Amendment Act, 1971, wherein parliament added Clause 4 in Article 13 which stated that nothing in Article 13 shall apply to any amendment of this Constitution made under Article 368.
Later in the case of the Kesavananda Bharati v. the State of Kerala, AIR 1973, the constitutionality of the 24th Amendment was held valid. So the present position of the word “Law” is that a Constitutional Amendment does not include the word. This gives the Parliament the power to amend the provisions of the Fundamental rights as long as they align with the basic structure doctrine of the Indian Constitution.ReferencesIndianKanoonBlog IpleadersConstitutionofIndia.netLawctopus AcademikeWikipedia[[Editorial comment-The Constitution (Twenty-Four Amendment) Act, 1971, enables Parliament to dilute Fundamental Rights through Amendments of the Constitution.Tthe 24th Amendment was effected to abrogate the Supreme Court ruling in I.C. Golaknath and Ors. vs State of Punjab and Anrs. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void." The Court also ruled that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament. The Court also held that the scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting or impairing Fundamental Freedoms in Part III Also Refer ]