Article 13: Fundamental Rights

Detailed Analysis of Artcile 13 with relevant case laws and study of pre and post constitutional laws with reference to Doctrine of Eclipse and Severability. Doctrine of Waiver. Amenability of the Fundamental Rights.

1. FNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY ARTICLE 13 ANALYSIS & DOCTRINES SUBMITTED BY: KIRTI RASHMI

2. ARTICLE 13 Article 13 included under part III of the Indian Constitution, deals with four principles relating to laws inconsistent with or in derogation of the fundamental rights. Article 13(1) applies to pre constitutional laws . It reads as following: All laws in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void. Put plainly, all laws existent prior to 26-01-1950, if they contravene with the fundamental rights, should be declared as void. for example, there was Education Act of 1930 restricting students of a particular caste to take admission in the state run educational institutions, this provision was declared as void after coming of the constitution. Article 13(2) talks about post constitutional laws. It states that the state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of such contravention, be void. That means a filter of constitutionality has to be used to remove the inconsistent part from the Act. This Article attracts three Doctrines discussed as further:

3. DOCTRINE OF ECLIPSE This doctrine states that pre constitutional laws inconsistent with the part III should not be wiped out immediately after the commencement of the constitution. It should be overshadowed for some time. This law will lie dormant till it is amended to be in consonance with part III or fundamental right itself gets amended making that law compatible with part III. In Bhikaji v State of M.P 1955, provision of Berar Motoryan Adhiniyam 1947 was challenged being violative to Article 19(1) (g) because the states exercising monopoly, had the power to regulate transport business to the exclusion of the citizens. By 1st Constitutional Amendment 1951, it was provided that state was empowered to do business to the exclusion of citizen. Thus the relevant Fundamental Right itself got amended removing the shadow on the impugned Act making it free from all blemishes. Again in State of Gujrat v Ambika Mills 1989, it was stated hat Doctrine of Eclipse applies to pre and post constitutional laws both. But for non citizens or compay, this doctrine is not applicable and even the law whch would have been impugned ins case of citizens, would be applicable on them as valid.

4. DOCTRINE OF SEVERABILITY/SEPARATION Whole Act may not be contravening Part III, sometimes only a part of them violates the Fundamental Rights. In such a situation, only that provision will be inoperative. In A.K Gopalan v State of Madras 1950, section 14 of the Preventive Detention Act was challenged as violative of the Fundamental Rights as it provided that the person detained may not be disclosed the grounds of detention. Ths provision was struked out from the main Act applying doctine of severability and the whole Act was saved. Similar ruling was held in many other cases like RDMC v UOI and Minerva Mills case.

5. DOCTRINE OF WAIVER In Basheshar Nath v Income tax Commissioner case 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 v 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 right cannot be waived. Similar Ruling was held in Olga Tellis case.

6. Article 13(3) provides inclusive definition of law . It states that law includes, ordinance, order, bye laws, rules, regulations, notifications, customs and usages. It also includes- notification or order under custom, usage or statute; by laws of municipal body or statuory bodies like LIC and government notification under Commissions of Inquiry Act. It is important to note that laws made by the administrative bodies (provided by the virture of delegated legislation or originally provided by the constitution like ordinances) are included but administrative instruction is not a law within the meaning of Art. 13. Customs having force of law is included under the definition of law. This is illustrated in the Tripple talaq case of 2017 - Shayera Bano v Union of India 2017- T riple talaq being the custom of Muslim community to give divorce was declared as unconstitutional under aticle 14, 15, 21 and 25. And so this custom was not recognized by law and is therefore not included under Article 13. This was not however challenged under Article 13. But in regard to personal laws, Court have adopted two approaches- (may be to not go into the sensitivity of matter and to establish cosonance with freedom of religion):- 1. personal laws are compatible with Fundamental rights. 2. Personal laws do not fall within the purview of Article 13. It was further opined in several cases that if it is a essential religious practice, then SC will not have power to repeal or modify. Ahmedabad Women's action group v. Union of India 1997- In this case, PIL was filed to declare four marriages in muslim community void under article 14 and 15. But the court refused to take cognizance and said that remedy lies somewhere else (indicating towards the legislature).

7. ARTICLE 13(4) & Amendability of the Fundamental Rights: SANKARI PRASAD V UOI 1951 SAJJAN SINGH V UOI 1965 GOLAKHNATH V STATE OF PUNJAB 1967 1st CAA- abolished Zamindari system and inserted Art. 31A and 31B, through which government can take property for public purpose and give compensation. Further, 9th schedule was added to keep land laws outside the purview of Judicial Review. This amendment was challenged in this case. 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. Supermacy of parliament was established over Judiciary. 17th CAA was challenged. Amendment includes amendment of any part of the constitution. same judgement was followed in State of Bihar v Kameshwar Singh. Parliament is superior to Judiciary. 17th CAA was challeged. 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. And since Fundamental Rights are granted against the arbitrary state's action, it cannot be amended. - RTP was upholded. Supermacy of Judicary over Parliament.

8. 24TH AMENDMENT 1971 KESHAVNANDA BHARTI V STATE OF KERALA 1973 44TH AMENDMENT 1978 Article 13(4) was added to the Constitution stating that Amendments is not law under Article 13 and therefore not amenable to Judicial review. it also added Article 368(1) ans 368(3) stating Article 13 does not apply on Art. 368. the word 'procedure' was replaced with 'power' to amend under Art. 368. it reversed the Golakhnath verdict Parliament was depicted as more powerful to Judiciary. Article 368 is both power and procedure. partially over ruled Golakhnath verdict- Fndamental Rights can be amended provided BASIC STRUCTURE is not violated. 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. Parliamentary sovereignty with Judicial Supermacy. Article 368(4) and (5) added by 42nd Amendment1976 stated that such amendments cannot be called in question on any ground. Indira Nehru Gandhi v Raj Narain 1975 established that there is no limit on the Parliament's amending power as it reflects the will of the people. 44th CAA : Right to property was removed - Article 19(1) (f) and Article 300A was inserted. enabled acquisition of land by the State with full compensation in return. Parliamentary sovereignty was established again.

9. MINERVA MILLS V UOI 1980 WAMAN RAO VUOI 1980 I R COELHO V STATE OF TAMIL NADU 2007 Article 13(4) was negatived. Article 368 (4) and (5) was also declared unconstitutional. schedule IX was still alive Keshavnanda's judgement was upheld. Even if it is under IXth schedule, it was made open to judicial review.

10. CONCLUSION People believe in law and to keep that belief alive, the term LAW has been given wider connotation under Article 13. It makeshe concept of Part III more clear and effectful. THANK YOU