Definition and Meaning of Law: Article 13 | Constitutional Law - CLAT PG PDF Download

Right to Equality (Article 13) 

Article 13 of the Constitution  deals with four principles related to fundamental rights. These rights have been in existence since the Indian Constitution came into force on  January 26, 1950  . From this date onward, fundamental rights became operative.

Pre-Constitutional Laws and Fundamental Rights 

•  Article 13(1)  addresses pre-constitutional laws. When the Constitution was adopted, there were existing laws in the country. Article 13(1) ensures that these pre-constitutional laws are compatible with fundamental rights.
• If a pre-constitutional law is found to be inconsistent with fundamental rights, it will be declared void. For example, if an Education Act from 1930 discriminates against a particular group of children, that clause would be null and void because it contradicts Article 15 of the Constitution.
• Article 13(1) is  prospective  , meaning it applies from the day the Constitution came into effect, not retroactively.

Pre-Constitution Laws and Fundamental Rights 

• Article 13(1) refers to laws that were in force before the Constitution came into effect. These laws are considered void if they are inconsistent with fundamental rights from the date the Constitution was enacted.
• Pre-Constitution laws that violate fundamental rights become void only after the Constitution comes into force. Rights and liabilities under these laws before the Constitution are not nullified.
• A case example is  Keshva Madhav Menon v. State of Bombay  , where a law pre-dating the Constitution was challenged. The court upheld the law because Article 13 did not apply retrospectively. Proceedings against the petitioner continued because the offence occurred before the Constitution was in effect.
• However, procedures that were discriminatory before the Constitution became void after its commencement. For instance, in the case of  Lachmandas v. State of Maharashtra  , a discriminatory procedure could not be used even to enforce pre-Constitution rights and liabilities.
• When a law conflicts with a fundamental right, it is not entirely void. Only the inconsistent part is void, and the principle of severability applies. The invalid portion is removed, and the valid part remains in force, as seen in the case of  Sub-Inspector Rooplal v. Lt. Governor

Doctrine of Severability 

• According to Article 13, a law is void only to the extent of its inconsistency with a Fundamental Right. This means that an Act may not be entirely void; only a part of it may be invalid.
• If the invalid part is severable from the valid part, the rest of the Act can continue to be operative. The Act will be read as if the invalid portion was not present.
• However, if the valid and invalid portions are so intertwined that they cannot be separated without leaving an incomplete or mixed remainder, the entire Act may be declared void by the court.
• In the case of  A.K. Gopalan v. State of Madras  , Section 14 of the Preventive Detention Act, 1950 was challenged. Section 14 stated that a person detained under the Act could not disclose the grounds of their detention in a court of law. This provision was found to be inconsistent with the fundamental rights guaranteed by Article 22 of the Indian Constitution.
• Applying the doctrine of severability, the Supreme Court held that the entire Preventive Detention Act, 1950 would not be declared void. Only Section 14 of the Act was declared void because it was inconsistent with fundamental rights.
• In the case of  R.M.D.C. v. Union of India  , the Supreme Court explained the doctrine of severability. When a legislature enacts a law that is partly within its powers and partly outside, the invalid portion is void, but the valid portion may still stand. The court determines whether the valid and invalid parts can be separated.

Doctrine of Eclipse 

• The doctrine of eclipse is a legal principle that arises from the prospective nature of Article 13(1) of the Indian Constitution. It holds that a law violating Fundamental Rights is not void ab initio (invalid from the beginning) but becomes unenforceable.
• When a law is eclipsed by a Fundamental Right, it remains dormant, not dead. Such a law continues to exist for all post-transaction purposes and for enforcing rights and liabilities incurred before the Constitution came into force.
• The eclipse occurs when a pre-Constitution law inconsistent with a Fundamental Right is overshadowed by that right. The law is not wiped out completely but is temporarily overshadowed. If the Fundamental Right is amended, the law can regain its enforceability.
• For example, a legal provision enacted in 1948 allowing the State Government to exclude private motor transport businesses became inconsistent with Article 19(1)(g) when the Constitution came into force in 1950. In 1951, when Article 19(1)(g) was amended to permit state monopolization of any business, the 1948 law was revitalized.
• The doctrine of eclipse applies only to pre-Constitution laws, not to post-Constitution laws. A post-Constitution law infringing a Fundamental Right is unconstitutional and void from its inception. It cannot be revived by a subsequent constitutional amendment.
• For post-Constitution laws, Article 13(2) states that no law made by the state shall take away or abridge the fundamental rights of individuals. If such a law is made, it is void to the extent of the contravention.

 Deep Chand v. State of U.P. 

• The Supreme Court held that a post-constitutional law made under Article 13(2) that contravenes a fundamental right is null and void from its inception. It is considered a stillborn law, void ab initio.
• The doctrine of eclipse does not apply to post-constitutional laws. A subsequent constitutional amendment cannot revive a post-constitutional law that violates a fundamental right.

State of Gujarat v. Ambika Mills

• A specific labor welfare fund act was contested because certain sections were deemed to violate fundamental rights.
• The issue at hand was whether laws enacted by the state after the constitution's framing could be declared void if they contradicted fundamental rights.
• The court clarified that fundamental rights are granted only to citizens, raising the question of how non-citizens or companies (like the respondent Ambika Mills) were affected.
• The Supreme Court determined that since fundamental rights apply only to citizens, the labor welfare fund act was valid for non-citizens and companies.
• This case marked a shift from the court's earlier position in the Deep Chand case.
• If a law violates a fundamental right exclusive to citizens, it remains applicable to non-citizens but becomes 'still-born' for citizens.
• Such a law would need to be re-enacted to be valid for citizens.

Law and Law in Force

• Law  in Article 13 encompasses a broad range of legal instruments, including ordinances, orders, bye-laws, rules, regulations, notifications, customs, and usages that have the force of law in India.
• The definition of 'law' in this context is broader than the usual understanding, as it includes administrative orders but excludes administrative directions or instructions meant for guiding government officers.
• Examples of what constitutes 'law' under Article 13 include:
  • Resolutions by State Governments under Fundamental Rule 44.
  • Government notifications under the Commissions of Inquiry Act establishing commissions of inquiry.
  • Notifications or orders issued under statutes.
  • Administrative orders, while administrative instructions do not qualify as law under Article 13.
  • Customs or usages.
  • Bye-laws of municipal or statutory bodies.
  • Regulations set by statutory corporations like the Life Insurance Corporation.
• The validity of these instruments can be challenged based on Fundamental Rights. However, bye-laws of co-operative societies made under the Co-operative Societies Act do not fall under Article 13.
• When Parliament enacts a law, it cannot be assumed to have considered an earlier law found to violate Article 13. While a law may not be invalid in itself, an order made under it can still be contested as being inconsistent with a Fundamental Right because no law can be presumed to authorize unconstitutional actions.
• 'Laws in force' include laws passed or made by legislative or competent authorities in India before the Constitution's commencement and not previously repealed, even if such laws or parts of them are not operational at the time.
• Law can be of various types:
  • Statutory Law:  These are laws enacted by the legislature or subordinate authorities under delegated powers. Delegated legislation appears in various forms like rules, regulations, notifications, and bye-laws.
  • Customs:  Customs and usages are also included in the term 'law'. While customs were once the primary source of law, statutory law has largely replaced them. However, certain reasonable and ancient customs still bind the courts like legislative Acts. Personal laws such as Hindu Law and Mohammedan Law are not included in this category.

 Is Constitutional Amendment a Law? 

• The inclusion of 'Constitutional amendment' within the term "law" in clause (2) of Article 13 was first examined by the Supreme Court in the case of  Shankari Prasad Singh Deo v. Union of India  . This case involved the challenge of the Constitutional (1st Amendment) Act, 1951, which amended the fundamental rights enshrined in the Constitution. The amendment was contested on the grounds that it curtailed fundamental rights and was therefore not valid law under Article 13(2).
• The Supreme Court rejected this argument, asserting that the term 'law' in clause (2) did not encompass laws made by Parliament under Article 368 for the purpose of amending the Constitution. It was clarified that 'law' referred to the rules and regulations enacted by legislatures, not constitutional amendments made in the exercise of constituent powers.
• This interpretation was upheld in subsequent judgments, such as  Sajjan Singh v. State of Rajasthan  . However, in the case of  Golak Nath v. State of Punjab  , a 6:5 majority in the Supreme Court ruled that 'law' in Article 13(2) included constitutional amendments made under Article 368. Consequently, if an amendment abridged or revoked fundamental rights guaranteed in Part III of the Constitution, the amending Act would be deemed void and ultra vires.
• Later, in  Kesavananda Bharati v. State of Kerala  , the Supreme Court overruled the Golak Nath decision. The Court unanimously held that the Constitution (24th Amendment) Act, 1971, which modified Article 13 and Article 368, was valid. This amendment allowed for the possibility of amending all provisions of the Constitution, including those related to fundamental rights (Part III).
• Thus, the power to amend the Constitution was firmly established, and it was agreed that all provisions, including fundamental rights, could be amended under the revised Article 368.

Judicial Review 

• The concept of  Judicial Review  was first introduced by the  Supreme Court of America  . Initially, the American Constitution did not explicitly provide for judicial review. However, the Supreme Court assumed this power in the landmark case of  Marbury vs Madison  .
• The case arose from the political conflict between the  Federalist  and  Republican  parties following the election of 1800. Thomas Jefferson, a Republican, defeated the Federalist John Adams. During the transition period from November 1800 to March 1801, Adams appointed several federal judges, some of whom were appointed in the final hours of his presidency, earning the title of 'midnight judges'.
• Judges could not assume their positions until their commissions were officially delivered by the Secretary of State. Due to the timing of many appointments, several commissions were not delivered when Adams left office. Jefferson, the new president, instructed his Secretary of State, James Madison, not to deliver these commissions. William Marbury, one of the appointed judges, requested the Supreme Court to issue a writ of mandamus, an official order to a government officer, compelling Madison to deliver the commission.
• Marbury argued that the Supreme Court had the power to issue such writs under the  Judiciary Act of 1789  , passed by Congress. In 1803, Chief Justice John Marshall ruled that:
• Madison should not have withheld Marbury's commission.
• Since the commission was signed and sealed, it was rightfully owed to Marbury.
• However, the Supreme Court did not have jurisdiction in this matter and could not force Madison to deliver the commission.
• Marshall declared Section 13 of the  Judiciary Act of 1789  unconstitutional because Congress attempted to expand the Supreme Court's authority to include writs of mandamus under the court's original jurisdiction. This case established the principle of judicial review, with Marshall asserting that the Constitution is the supreme law of the land and the Supreme Court has the final authority over its interpretation.

Shankari Prasad V. Union of India 

• The  Zamindars  challenged the constitutional validity of the  first amendment Act 1951  , claiming it violated fundamental rights and Article 13(2) of the Constitution. They argued that Article 31 was unconstitutional.
• The court ruled that amendments made under Article 368 are not considered laws under Article 13 of the Constitution, thus validating the First Amendment Act.
• Following this case, the  Fourth Amendment Act  was enacted, introducing Article 31 (2A), stating that compensation would not be required unless ownership of land acquired was transferred to the state or state corporation. It also established that the adequacy of compensation, determined by law, is justiciable.
• The  17th Amendment  in 1964, with retrospective effect, added Article 31A(2)(a)(iii), defining estate to include any land for agricultural or ancillary purposes, encompassing wasteland or forest land.

Sajjan Singh V. State of Rajasthan 

• The court examined the constitutional validity of the  17th Amendment Act of 1964  .
• By a 3:2 majority, the court rejected the challenge, applying the doctrine of pith and substance.
• It upheld the power of Article 368 to amend Article 13(2).
• The judgement in  Shankari Prasad  was reaffirmed.

Golak Nath & Ors V. State of Punjab 

• The validity of the  17th Amendment Act of 1964  was challenged again, leading to a referral to a larger bench of 11 judges.
• The court, by a 6:5 majority, overruled the earlier decisions in  Shankari Prasad  and  Sajjan Singh  .
• It held that the term 'law' in Article 13 includes constitutional amendments made under Article 368.
• Chief Justice Subba Rao, representing 5 judges, argued that Article 368 only outlines the procedure for amendment and does not grant the power to amend. The power to amend lies in Article 248, the residuary power, making constitutional amendments ordinary laws subject to Article 13.
• Following this landmark decision, the  24th Amendment of 1971  was enacted to counter the impact of the Golak Nath case.
• The 24th Amendment introduced Article 13(4), stating that any amendment made under Article 368 is not considered a law under Article 13.
• It also revised the marginal note of Article 368 to clarify the power and procedure of Parliament to amend the Constitution.
• The  25th Amendment of 1971  further amended Article 31(2) by replacing "compensation" with "amount," removing the obligation of the government to provide compensation.
• Additionally, it added Article 31C, stating that Article 31A would not apply to laws enacted to implement the policy underlying Articles 39(b) and (c) of the Directive Principles of State Policy.

Kesavananda Bharti V. State of Kerala 

• The  24th and 25th Amendment Acts of 1971  were challenged in this case.
• A  13-Judge Bench  was formed to hear the case.
• With a  7:6 majority  , the court ruled that:
• The power to amend the Constitution is found in Article 368. It cannot be derived from residuary power.
• There is a distinction between ordinary law and constitutional amendment.
• The Parliament does not have the authority to destroy or amend the basic structure of the Constitution.
• Chief Justice  Sikri  provided a list of the basic structure, although not exhaustive, including:
• Supremacy of the Constitution.
• Republic and democratic form of government.
• Secular character of the Indian Constitution.
• Separation of powers.
• Federal character.
• The court also determined that "compensation" cannot be substituted with "amount".
• Article 31 was upheld as valid, but Article 31(2) was declared invalid.

Indira Nehru Gandhi V. Raj Narain 

• The  39th Amendment  , specifically Clause 4, was contested in this case. Clause 4 imposed a restriction on challenging the elections of the Speaker and Prime Minister.
• The court declared Clause 4 of the 39th Amendment unconstitutional and struck it down, deeming it invalid.

Minerva Mills V. Union of India 

• In this case, the concept of  Judicial Review  was added to the list of Basic Structure of the Constitution alongside the balance between Fundamental Rights and Directive Principles.

I.R. Coelho V. State of Tamil Nadu 

• The court ruled that any act inserted in Schedule 9 can undergo judicial scrutiny, but this applies only to enactments inserted after  April 24, 1973  .
• Article 13 of the Constitution upholds the supremacy of the Indian Constitution and facilitates judicial review. This provision enables the review of pre-constitutional and existing laws.
• Although the judiciary's intervention in constitutional matters is a subject of debate, in most instances, the judiciary's authority is considered supreme. The judiciary is called upon to safeguard and enforce the Fundamental Rights guaranteed in Part III of the Indian Constitution.