Table of Contents

Part-III exists with the objective that our rights and freedoms should be protected against state’s arbitrary invasion. For the said purpose, exists Article 13, i.e., Laws inconsistent with or in derogation of the fundamental rights.

Clauses of Article 13

Art. 13 deals with four principles relating to Fundamental Rights:

  1. 13(1) - declares that all laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of Part III of the Constitution.

For E.g.: Suppose there was an education Act of 1935 with many clauses of its own. There was this one clause stating that kids from a certain caste shall not be admitted in school. With the enactment of the Constitution, this right stands in contravention of the Fundamental Rights. Since this particular clause is in violation of the Fundamental Rights; it will be held void.

  1. 13(2) - provides that the State shall not make any law which takes away or abridges the fundamental rights conferred by Part III of the Constitution; and any law made in contravention of fundamental rights shall, to the extent of contravention, be void.
  2. 13(3) - In this article, unless the context otherwise requires, —
  1. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
  2. “laws in force” includes laws passed or made by a 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
  1. 13(4) - Nothing in this article shall apply to any amendment of this Constitution made under article 368.

In short, Art. 13(1) deals with pre-constitutional laws and Art. 13(2) deals with post-constitutional laws.

Article 13 in fact provides for the ‘judicial review’ of all legislations in India, past as well as future. Article 32 and Article 226 confers the power of judicial review on the Supreme Court and High Courts, respectively. They can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution.

Nature of Article 13

Article 13 is not retrospective in effect; it is prospective in nature. All pre-Constitution laws inconsistent with Fundamental Rights will become void only after the commencement of the Constitution. They are not void ab initio.

  • Keshavan Madhav Menon v. State of Bombay (1951) – It is a landmark Supreme Court of India judgment holding that Article 13(1) of the Constitution is prospective, meaning pre-constitutional laws inconsistent with fundamental rights are void only for future actions and do not affect pending criminal proceedings for past acts. 

In September 1949, the appellant Keshavan Madhava Menon published a pamphlet without proper permission. A case was filed against him under the repressive Indian Press (Emergency Powers) Act, 1931. While his trial was ongoing, the Constitution of India came into force on January 26, 1950. The appellant argued that the 1931 Act violated his freedom of speech under Article 19(1)(a) and became “void” under Article 13(1), meaning the ongoing court case against him must stop.

By a majority ruling on January 22, 1951, the Supreme Court dismissed the appeal and allowed the prosecution by the State of Bombay to continue. The Court ruled that Article 13(1) does not have retrospective effect. It only applies from January 26, 1950 onwards.

Clause (2) of Article 13 prohibits State to make any law which takes away or abridges rights conferred by Part III of the Constitution. If State makes such a law, then it will be ultra vires and void to the extent of the contravention.

As distinguished from Clause (1), Clause (2) makes the inconsistent laws void ab initio and even conviction made under such unconstitutional laws shall have to be set aside. “Anything done under such a law, whether closed, completed or inchoate will be wholly illegal and person adversely affected by it will be entitled to relief.”

  • State of Gujarat v. Ambica Mills (1974) - It is a landmark judgment regarding Article 13(2) of the Indian Constitution, fundamentally shifting how courts interpret the term “void” for post-constitutional laws.

The Bombay Labour Welfare Fund Act, 1953 (a post-constitutional law) was amended by the Gujarat legislature to claim unpaid wages and accumulations from employers to create a welfare fund for workers. Shri Ambica Mills, a company, challenged certain provisions of this Act. They argued that the law violated the fundamental right to hold property under Article 19(1)(f) (which was a fundamental right at the time). The company claimed that since the law violated Article 19, it was void under Article 13(2), making it a complete nullity that could not be enforced against anyone, including corporations.

The Supreme Court ruled that the word “void” in Article 13(2) is not absolute. A post-constitutional law that violates fundamental rights is not a total nullity for all occasions and all people. The Court highlighted that certain fundamental rights (like Article 19) are exclusively guaranteed to citizens. For citizens the law is void because it contravenes their rights. But for non-citizens, since corporation is a non-citizen and does not possess Article 19 rights, the law does not contravene any right belonging to them. Thus, the Act remains valid, alive, and fully enforceable against non-citizens and corporations.

The Court clarified that the phrase “to the extent of the contravention” under Article 13(2) means the law is invalid only as far as it clashes with a specific group’s rights. It does not wipe the statute off the book completely.

In both the cases, whether pre-Constitutional or post-Constitutional; a declaration by the Court of their invalidity will be necessary.

Doctrine of Severability (To Separate)

When a part of the statute is declared unconstitutional then a question arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be declared as such. To resolve this problem, the Supreme Court has devised the Doctrine of Severability, also known as doctrine of separability.

As per this doctrine, when a part of a statute is declared unconstitutional and if only the offending provision of the concerned statute can be separated from the rest; only offending part needs to be declared void, not the whole statute. Article 13 of the Constitution uses the words “to the extent of such inconsistency be void”, which means that when some provision of the law is held to be unconstitutional then only the repugnant provisions of the law in question shall be treated by courts as void and not the whole statute.

  • A.K. Gopalan v. State of Madras (1950) - In this case, Section 14 of the Preventive Detention Act was challenged. The Supreme Court found the same (Section 14) to be unconstitutional because it prohibited a detainee from disclosing the grounds of their detention to a court. The Court applied the Doctrine of Severability under Article 13(1). It ruled that Section 14 could be easily separated from the rest of the Act without affecting the core purpose of the law. Section 14 was declared void and omitted, while the remainder of the Preventive Detention Act remained valid and enforceable.

Doctrine of Eclipse (To Hide)

This doctrine simply means to shadow something; to hide. Under the Doctrine of Eclipse, an existing law that break a Fundamental Right does not die. It becomes inactive and unenforceable for a time, staying in dormant state. Such laws are not wiped out entirely from the statute book. They exist for all past transactions, and for the enforcement of rights acquired and liabilities incurred before the present Constitution came into force.

  • Bhikaji v. State of M.P. (1955) – It is the landmark Supreme Court judgment that officially established the Doctrine of Eclipse in Indian constitutional law. The Central Provinces and Berar Motor Vehicles (Amendment) Act, 1947, was passed before the Constitution to allow the State government to nationalise motor transport and create a state monopoly. When the Constitution came into force on January 26, 1950, this state monopoly directly violated the fundamental right of citizens to practice any trade or business under Article 19(1)(g). However, in 1951, Clause (6) of Article 19 was amended by the Constitution (1st Amendment) Act, so as to authorize the Government to monopolise any business. In 1955, the government issued a notification under the old 1947 Act to take over private transport routes, which was challenged by private operators.

The Supreme Court ruled that “void” in Article 13(1) does not mean a pre-constitutional law is entirely wiped out or killed. It only means the law is dormant and unenforceable. The Court held that the fundamental right casts a shadow over the inconsistent law, rendering it inactive. The law remains alive but hidden. Because the First Constitutional Amendment removed the conflict with Article 19(1)(g), the eclipse was lifted. The 1947 Act automatically became fully operative again without needing to be re-enacted. This law was merely eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed. the law begins to operate from the date of such removal.

While A.K. Gopalan used the Doctrine of Severability to permanently amputate an invalid section from a post-constitutional law, Bhikaji used the Doctrine of Eclipse to temporarily put a pre-constitutional law to sleep until a constitutional amendment woke it back up.

The Ambica Mills case that we discussed above under Art. 13(2), is historically significant because it effectively extended the Doctrine of Eclipse to post-constitutional laws in a limited capacity.

While the general rule (from Bhikaji) is that the Doctrine of Eclipse applies only to pre-constitutional laws, Ambica Mills proved that a post-constitutional law can also exist in a shadow or “eclipsed” state; dormant and unenforceable against citizens, but active and binding on non-citizens.

Doctrine of Waiver

The doctrine of waiver was formulated by certain American judges when interpreting the Constitution of the United States, but it has no relevance to the interpretation of the Indian Constitution. A citizen is not permitted to renounce or waive any of the fundamental rights guaranteed under Part III of the Constitution. These rights were incorporated into the constitutional framework not merely for individual advantage, but as a core principle of public policy designed to protect the collective welfare of the general public. They represent a mandatory obligation imposed by the Constitution upon the State. No individual possesses the authority to absolve the State of this constitutional duty, particularly because a vast majority of our citizens remain economically disadvantaged, educationally deprived, and politically unaware of their legal entitlements. Given these prevailing circumstances, it remains the solemn duty of the Court to safeguard their fundamental rights, even against their own actions. [Case: Bashesharnath v. Income Tax Commissioner (1959)].

Doctrine of Lifting the Veil

To test constitutional validity of an Act, on the alleged violation of fundamental rights, it is necessary to ascertain its true nature and character and impact of the Act for which the Court may take into consideration all factors, such as, history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.

Art. 13(3): ‘Law’ and ‘Laws in Force’

Each and every law affecting the legal rights of a citizen, such as bye-laws, ordinance, order, notification, custom or usage having the force of law; comes under the purview of Art. 13. The definition of ‘law’ in this Article is wider than the ordinary connotation of law which refers to enacted law or legislation. However, there are two exceptions to it:

  1. Administrative directions or instructions issued by the Government for the guidance of its officers, and not meant as enforceable legal obligation. It does not include departmental instructions.
  2. Personal Laws do not fall under the category of ‘law’ for the purpose of Art. 13.

‘Laws in force’ denote all prior and existing laws passed by the Legislature or other competent authority which have not been repealed, notwithstanding the fact that they are not in operation wholly or in part throughout India or part thereof. The term "existing law" includes a wider range, such as ordinances, orders, bye-laws, rules, or regulations by the Legislature or other authorised body or person. Thus, an ordinance issued by the President under Article 123 or by the Governors under Article 213, a government notification, and a bye-law of a municipal body are all laws in force.

Is a Constitutional Amendment considered ‘Law’ under Art. 13(2)?

There four important case laws or legal developments with respect to whether an amendment can be challenged under Art. 13: -

  1. Shankari Prasad v. Union of India (1951) – The Supreme Court held that the meaning of ‘Law’ under Art. 13 does not include Constitutional Amendment.
  2. Golak Nath v. State of Punjab (1967) – The Supreme Court held that the power of judicial review is supreme. If an amendment to the Constitution took away or violated fundamental rights of the citizens, the amendment would be declared void.
  3. 24th Constitutional Amendment Act, 1971 – In order to remove the difficulty created by the Supreme Court’s decision in Golak Nath’s case, the Constitution (24th Amendment) Act, 1971, was enacted. With this amendment, Art. 13(4) was inserted which stated that any amendment being made through Art. 368 cannot be challenged under Article 13.
  4. Kesavananda Bharti v. State of Kerala (1973) – In this case, the 24th Constitutional Amendment Act, 1971, got challenged. The court held that the Parliament’s amendment power is limited and is subject to ‘Basic Structure of the Constitution’.