Part III of the Constitution of India titled Fundamental Rights secures the basic, natural and inalienable rights to the people of India. The idea behind this is to preserve the indispensable condition of a free society. The fundamental rights contain a long list of rights, like right to life, liberty, right to freedom, and so on, which should be regarded as inviolable in all conditions. Article 13 is one of the fundamental rights and is an important part of the Constitution of India.
Article 13
“Laws inconsistent with or in derogation of the fundamental rights
(1) 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, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.”
Article 13 is what makes the fundamental rights enforceable in the Court of law. It deals with the impact that the fundamental rights have on the action of the State.
The Constitution of India came into force on 26th January 1950, and thus the Fundamental Rights were secured from this very date. But Article 13 declares that all laws, pre-constitutional or post-constitutional, which are inconsistent or in derogation with fundamental rights are void to the extent of its inconsistency.
According to Clause(1) of Article 13, all laws which are in force immediately before the commencement of the Constitution will be void to the extent they are inconsistent with the fundamental rights. It is to be mentioned that this Article does not make the pre-constitutional laws void ab initio and thus is not retrospective in nature. They become void only to the extent that they are inconsistent with the fundamental rights and this is only after the commencement of the Constitution. Hence, fundamental rights are prospective in nature and not retrospective.
This was observed in Keshava Madhava Menon v. State of Bombay, where the Supreme Court held that Article 13(1) could not apply to that case where the offense was committed before the commencement of the Constitution. The laws which are in existence before the commencement of the Constitution will not become void ab initio because of their inconsistency with the fundamental rights, which came into being after the Constitution came into force. So, the actions which were in the past and within the rights of that law will remain untouched even after the commencement of the Constitution, because this clause does not have a retrospective effect on the pre-constitutional laws. Thus, the existing laws before the commencement of the Constitution will be void only to the extent that they’re inconsistent with the fundamental rights and not void ab initio.
But it has to be kept in mind that after the commencement of the Constitution, any provision of an existing law which is unconstitutional cannot be followed for pending or future proceedings.
According to Clause (2) of Article 13, any law made after the commencement of the Constitution which is inconsistent with the fundamental rights will be ultra vires and will be void to the extent of its contravention. Though post-constitutional laws that are inconsistent with the fundamental rights are void from their very inception but still a declaration by the Court for their invalidity will be necessary.
Clause (3) of Article 13 also makes it clear that Article 13 also applies to ordinances, bye-laws, regulations, notifications, orders, and thus a broad connotation to the term law is given and anything infringing a fundamental right cannot be in force.
Effect of Article 13 can be understood through the following doctrines:
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Doctrine of Severability
This doctrine states that only that part of the law that is inconsistent with the fundamental rights shall be void and not the whole of the law. The doctrine of severability or separability separates the valid part of the law from the invalid one. As the words in Article 13 clearly state, “to the extent of such inconsistency be void”, which means that when a provision of a particular law is held unconstitutional, then only that part and not the whole law becomes void. But, it has to be kept in mind that if the invalid portion of the law is so inextricably linked to the valid portion that it cannot be separated, then the Courts will hold the entire Act void.
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Doctrine of Eclipse
This doctrine simply means that the inconsistent law did not become a dead law, but was eclipsed by the fundamental right for the time being. Such laws are not wiped-out entirely by the statute book.
It is to be noted that the law exists for all the past transactions and also remains in force for the citizens who do not have fundamental rights, i.e. non-citizens. It is only against the citizens that the law remains in a dormant condition but they are functional as against non-citizens.
In the case of Bhikaji v. State of M.P., the Supreme Court held that a law which became unenforceable after the commencement of the Constitution can be revived by an amendment in the law. The eclipse is removed as soon as the law becomes free of the constitutional hindrance and becomes operational as against citizens from the date of such removal.
It has to be kept in mind that the Doctrine of eclipse does not apply to the post-constitutional laws and any law which contravenes a fundamental right is nullity from the very beginning and is void ab initio.
Conclusion
Article 13 is thus an important fundamental right that maintains the supremacy of fundamental rights by making all those laws which are in contravention void. Clearly, Article 13 secures the fundamental rights with respect to the pre-constitutional and post-constitutional laws and hence is an essential feature constituting the basic structure of the Constitution.
This article is authored by Mrunal Pol, 3rd Year B.A.LL.B. student at ILS Law College, Pune.
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