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Laws Inconsistent with Fundamental Rights (Article 13)

Laws Inconsistent with Fundamental Rights (Article 13)

Introduction

  • Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void.
  • In other words, it expressly provides for the doctrine of judicial review.
  • This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

‘Law’ in Article 13

  • The term ‘law’ in Article 13 has been given a wide connotation so as to include the following:
    • Permanent laws enacted by the Parliament or the state legislatures;
    • Temporary laws like ordinances issued by the president or the state governors;
    • Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and
    • Non-legislative sources of law, that is, custom or usage having the force of law.
  • Thus, not only a legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void.
  • Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.

Meaning and Scope of Article 13

  • It’s through Article 13 that the Constitution prohibits the Parliament and the state legislatures from making laws that ‘may take away or abridge the fundamental rights” guaranteed to the citizens of the country. The provisions under Article 13 ensure protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
  • The Article 13 provides a constitutional basis to judicial review since it gives the Supreme Court or High Courts the authority to interpret the pre-constitutional laws and decide whether they are in sync with the principles and values of the present Constitution. If the provisions are partly or completely in conflict with the legal framework, they are deemed ineffective until an amendment is made. Similarly, the laws made after the adoption of the Constitution must prove their compatibility, otherwise they will be deemed as void.
  • Under Article 13, the term flaw includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India. The ‘laws in force include “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.” The Supreme Court has observed that the Article 13 refers to a legislative’ law (made by a legislature) and does not include a ‘constituent law (made to amend the Constitution).

Amendments to Article 13

  • The 24th amendment to the Indian Constitution was enacted by the then Indira Gandhi government in November 1971. The objective was to nullify the Supreme Court’s ruling that had left the Parliament with no power to curtail the Fundamental Rights. Clause (4) was inserted in Article 13, which states: “Nothing in this article shall apply to any amendment of this Constitution made under article 368.” This provision added more power to the Parliament when it comes to amending the Constitution. It brought Fundamental Rights within the purview of amendment procedure and judicial intervention or review of those amendments was prohibited.                          Laws Inconsistent with Fundamental Rights (Article 13)
  • « The amendment evoked sharp reactions from the media fraternity and they explained this move as “too sweeping.”
  • The amendment faced equal criticism from the jurists and the members of the Constituent Assembly. The draconian nature of the amendment was further reflected in the fact that the new provision made it obligatory for the President to give his assent when a Constitution Amendment Bills submitted to him.

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