Article 13

In this ppt, article 13 of the Indian Constitution is discussed.

1. Constitutional LAW Article 13 of Constitution of India

2. Enforcement of laws with context to F.R. Pre-Constitutional Law Before the commencement of the Constitution. Initially valid but subsequently void if these are violating provisions of the constitution. Post-Constitutional Law Parliament shall not make any law in violation of fundamental right. (General Rule). If any such enacted by parliament which against the provisions of the constitution that act became void ab-initio. State can’t make any law which abridge the fundamental right but can make laws acc. Doctrine of Harmonious Construction.

3. Article 13 Article 13 declares that all laws that are inconsistent with any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of ‘Judicial Review’. This power has been conferred on the Supreme Court (Art. 32) and the high courts (Art. 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of Fundamental Rights. Law Includes: Laws enacted by Parliament and state legislature. Any ordinance Order Bye-rule Rule & Regulation Notification Customs and usages. But not including personal laws.

4. Doctrine of Severability Meaning By the term severability, we mean ‘To Separate’. Under this doctrine, we just separate the invalid sections (those violating fundamental rights) from that act. Rather than repealing the whole act, we can repeal that specific section from the act. Case: RMDC vs UOI (AIR 1957 SC 628) Intention of the legislature will determine whether the valid part of a statute is severable from the invalid parts. If the invalid part is not separated from the valid portion of the act that’s mean the whole Act is Invalid. If they can separate then valid become valid act. Courts would be reluctant to declare a law invalid or ultra vires on of unconstitutionality. Interpretation done by court would be in favour of constitutionality.

5. Doctrine of Severability Origin: In UK case: Nordfelt vs Maxim Nordfelt Guns and Ammunition Company Ltd.(1894) Purpose of art. 13 of the Indian Constitution, it means “to separate the valid portion of the law from the invalid provisions.” The main object of the doctrine is retain the act or legislation in force by discarding/deleting the void provisions. A K Gopalan vs State of Madras PD Act section 14 was against the Fundamental Rights. Not the whole law but only one that section removed by the judicial review.

6. Doctrine of Eclipse To hide wholly or in part or throwing into the shade. Aims to validate a statute, which remains dormant as it over-shadowed by the rights. Based on the principle that a law, which violates fundamental rights is not nullity or void ab-intio but becomes only unenforceable. Such law shall be wiped out totally from the statute book.

7. Doctrine of Eclipse Bhikaji Dhakrajan vs State of MP (AIR 1955 SC 781) The doctrine of Eclipse envisages that a pre-constitutional law inconsistent with fundamental rights was not bit out all together of the statute book after the commencement of the constitution as it continued to exist in respect of rights & liabilities occurred before the date of constitution. The law therefore be regarded Eclipse for the time being by the relevant F.R. it was a govt. in moribund condition for all purpose. It the relevant F.R. amended then the effect would be to removed the shadow and to make the impulse act free from all blemish or infirmity. The law would sees to be unconstitutional & become reviewed. Deep Chand vs State of U.P (AIR 1959 SC 648) In case the contravene a fundamental right limited to the citizen only, it will operate with respect to non-citizens but it will not be revived quo-citizen unless it revived by constitutional amendment. Eclipse-only pre-constitutional law.

8. Doctrine of Eclipse State of Gujrat vs Ambika Mills (1989) It was stated that doctrine of eclipse applies to pre and post constitutional laws both. But for non citizens or company, this doctrine is not applicable and even the law which would have been impugned in case of citizens, would be applicable on them as valid.

9. Doctrine of Parens Patriae The monarch, or any other authority, regarded as legal protector of citizens unable to protect themselves. Charan Lal Sahu vs UOI Heller vs DOE JUSTICE KENNEDY observed that the state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care of themselves.

10. Doctrine of Waiver In BASHESHAR NATH vs INCOME TAX COMMISSIONER (1959), the petitioner entered into a settlement with the Income tax commissioner under the tax failure. Later, he denied payment relying on one judgement (MCT Muthiah & ors. vs CIT 1955) where that section was declared unconstitutional. One issue was raised that since he agreed to pay the amount, he has waived his right and so he will have to reimburse the settlement amount. The Court held that Fundamental Rights cannot be waived. Similar ruling was held in OLGA TELLIS Case.

11. Cases SANKARI PRASAD VS UOI (AIR 1951 SC 458) It was held that Parliament had two powers- legislative power to make laws and constituent power to amend constitution. And law made under the constituent power is not law under Article 13 . And since Judicial review applies on laws under Article 13, therefore property rights can be vitiated by the Parliament without intervention of the court. SAJJAN SINGH VS UOI (1965 SCR (1) 933) 17th CAA was challenged. Amendment includes amendment of any part of the constitution.

12. Cases GOLAKHNATH VS STATE OF PUNJAB (1967 SCR (2) 762) 17th CAA was challenged. Earlier two judgements were reversed by 11 judge bench. No such division as to constituent power and legislative power. And so, constituent power under Article 368 is also law under Article 13 and thereby amenable to Judicial review by the Supreme Court KESHAVNANDA BHARTI VS STATE OF KERALA (AIR 1973 SC 1461) Article 368 is both power and procedure. BASIC STRUCTURE Theory described by the SC upheld 24th amendment. Stated that Constituent power is superior to ordinary law making power as it requires special majority. Harmonious Construction of Article 13 and 368.

13. Case Laws: MINERVA MILLS VS UOI AIR 1980 SC 1789 Article 368 (4) and (5) was also declared unconstitutional. schedule IX was still alive WAMAN RAO VS UOI (1981) 2 SCC 362 The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and those passed after that date can be subject to scrutiny. I R COELHO VS STATE OF TAMILNADU AIR 2007 SC 861 If any laws in the Ninth Schedule were inconsistent with Part III, they are liable to be struck down by the Court.

14. Presented by: Mr. Rahul Yadav Assistant Professor (Cont.) Faculty of Law M. D. University, Rohtak. Contact: rahul.gf.law@ mdurohtak .ac.in