Article 13: Defining the Law
Updated: Dec 19, 2021
Authored by Prity Kumari, a 3rd year student of RGNUL, Patiala.
Article 13 is comprised in Part III of the Indian Constitution headed under Fundamental Rights. Doubtless with the adoption of a written constitution and incorporation of fundamental rights therein, the validity of all laws need to be tested on the touchstone of the Constitution. Accordingly, the justiciability of the fundamental rights has been explicitly provided in the provisions of Article 13 of the Constitution, as the framers of the Constitution didn’t wish to go away with the power to Judiciary unlike American. The court had the power in absence of Article to declare the enactment of any legislative enactment to such extent it proved to transgress the limit, to be invalid. In order to safeguard the rights given by the Constitution, the framers left no stone unturned and such an living example is Article 13, as it not only deals with the Post Constitutional laws but pre- constitutional as well which further mentions one of the most important Constitutional Jurisprudence i.e., Law and Laws in force. The presence of Judicial Review under the article leaves no doubt as to the indispensability regarding control of Constitutional laws. The writer primarily intends to highlight the importance of Article 13, followed by the doctrines enshrined in it. The writer also attempts to focus on the landmark judgment passed by the Hon’ble Supreme Court.
The Indian Constitution when adopted was criticized as a bag of borrowing, even though the salient features are recognizable and unique from other constitution of the world. Among all the features borrowed, the idea of fundamental rights has been taken from the United States Constitution. A country provides its citizen with some rights which add to their growth and development and enable them to live a life with utmost dignity. Among these rights, there are some rights of fundamental nature which implies that these rights are of most significance and essential of all rights without which the survival of an individual is not possible.
The drafting committee gave the concept of fundamental Rights in Part III of the Indian Constitution in order to keep the belief that people have in law. It provides the citizens liberty and protect it from being infringed by the state or be it anyone. Remedy is also given if fundamental right is violated. Article 12 and 13 were introduced to keep the belief of people in state. As article 12 gives the definition of State and also defines what are the responsibility that the state has towards its citizen whereas Article 13 presents itself in four folds which makes the concept of fundamental rights more powerful and gives it a real effect. Now the concern arises how an individual’s fundamental right is protected by incorporation of article 13, because the remedy for its violation is already given under Article 32. Actually article 13 protects the individual’s fundamental rights by declaring any law null and void if it is inconsistent or intervenes the fundamental rights if the person in any possible manner.
The article 13 not only asserts the supremacy of Indian Constitution but also makes ways for judicial review.
Laws Inconsistent with Fundamental Rights
Article 13(1) states that the pre-existing laws before the commencement of Constitution, if found to be inconsistent with provisions of part III of this article will be void to the extent of inconsistency. Whereas article 13(2) talks about the laws which are passed after the constitution came into force. It renders all the laws void which violates the provisions of this part.
Doctrine of Severability
Article 13(1), it is mentioned that the pre-constitutional law will only be void to the extent of the inconsistency while in article 13(2) it is mentioned that post-constitutional law will be void to the extent of the contravention.
The doctrine of Severability says that is if a part of any law is inconsistent then the rest of the part will remain valid. It applies to both pre and post-constitutional law.
AK Gopalan v. State of Madras
In this case it was laid that section 14 of Preventive Detention Act was found to be violative of article 14 of the Constitution. Hence, it was made void but the other parts which were separable were still alive and operative.
Doctrine of Eclipse
The Doctrine of Eclipse says that the inconsistent laws though becomes out of whack but not completely dead. It is eclipsed by the fundamental rights and can again be alive through some constitutional amendments.
As only citizens have fundamental rights so it is applicable to them and non citizens can’t challenge the validity of the law.
Deep Chand v. State of Uttar Pradesh
It was held that only the pre-existing constitutional law can be brought to life whereas the post-constitutional law which infringes fundamental right is void from its dawn.
Doctrine of Waiver
This doctrine considers that a person is his own judge and will choose what is best for him. The doctrine of waiver says that a person can put aside his right if he wants to. It only talks about individual rights and not the rights of the public in general.
Olga Tellis v. Bombay Municipal Corporation
Some pavement dwellers took an undertaking to allow the government to set up huts on pavement and to not hinder the demolishing of the huts.
But during the demolishing of the huts the dwellers filed a petition under Article 21. The Supreme Court ruled out that no one can relinquish their fundamental rights as they are for the public utility given to an individual for his own benefit.
Judicial Interpretation of Article 13(3)
The constitutional validity of Preventive Detention Act of 1950 was challenged in this case and raised issues regarding to personal liberty. It was held that the Constitution has not provided for nullifying any act of the competent authority which violates the principle of natural justice and there is no safeguard against it.
This case led to the introduced amendments in article 359 by the 44th amendment which prohibited the suspension of articles 20 and 21even during an emergency. As it was realized that the officials went beyond their ambit of power while misusing the Preventive Detention Act.
Earlier there were question related to judiciary whether it comes within the ambit of state under article 12 or not. If not then it allows judiciary to violate the provisions contained in part III. But if we look at article 13(2) it states that the word state may include judiciary in its ambit.
Over the years a question of great importance has arrived from time to time regarding whether the term “law” under article 13(1) would include an Act passed by Parliament to amend the Constitution.
According to 24th Amendment Act of Indian Constitution, and referring to various judgments of the Supreme Court, the question has been answered clearly that Article 13 refers to the legislative law and not the Constituent law. As we all know that legislative laws are the ordinary laws made by the legislature whereas the Constituent laws are made to amend Constitution by exhausting Constitution Power. Thus, we may say it does not include amendments made by Parliament through Article 368.
Indian Constitution promises that “to no one should right and justice be delayed, sold or denied” but still injustice is been seen. But with time many changes have been noticed and introduced since then but there are many to still strive for. Like fundamental rights were not so fundamental before ADM Jabalpur’s case.
Whether it is the prison reforms which are to be changed and the system is to made more transparent or we may say providing of rights against private individuals and not only the state. The lawful procedure to bolster the functioning of Article 13 which means the whole definition of law has to be armed till teeth.
References-  AIR 1950 SC27  1959 AIR 648 1959 SCR  blog.ipleaders.in/fundamental-rights-article-13  (2000) 10 SCC 664  AIR 1950 SC27  (1976) 2 SCC 521  https://www.amu.ac.in/emp/studym/99999692.pdf