Article 13  Indian Constitution: Judicial Review, Fundamental Rights & Constitutional 

 In the grand constitutional scheme of India, Part III, which enumerates the Fundamental Rights, is often described as the conscience of the Constitution. At the very heart of this part lies Article 13, a provision that acts as both a shield and a sword, safeguarding these essential rights against legislative and executive overreach. It is the constitutional provision that firmly establishes the doctrine of Judicial Review, making the judiciary the ultimate arbiter of the constitutional validity of all laws. A complete review of Article 13 involves an understanding of its clauses, the judicial doctrines it has given birth to, and its tumultuous and fascinating relationship with constitutional amendments and personal laws.

The Text and Its Mandate: A Clause-by-Clause Analysis

Article 13 is structured into four clauses, each with a distinct and powerful mandate:

• Article 13(1): The Eclipse for Pre-Constitutional Laws: This clause declares that all “laws in force” in India immediately before the commencement of the Constitution (January 26, 1950), in so far as they are inconsistent with the provisions of Part III, shall be void to the extent of such inconsistency. This clause had a retrospective effect in the sense that it rendered existing laws that violated fundamental rights unenforceable from the date the Constitution came into force.

• Article 13(2): A Bar on Future Laws: This is the prospective and arguably most crucial part of the article. It prohibits the “State” (as defined in Article 12) from making any “law” which takes away or abridges the rights conferred by Part III. Any law made in contravention of this clause shall, to the extent of the contravention, be void. This clause imposes a clear and categorical limitation on the legislative power of the Parliament and state legislatures.

• Article 13(3): The Expansive Definition of ‘Law’: To prevent any ambiguity, this clause provides an inclusive and broad definition of what constitutes “law” for the purposes of the article. It includes:

  • Any Ordinance, order, bye-law, rule, regulation, or notification (delegated legislation).

  • Any custom or usage having the force of law in the territory of India. This wide definition ensures that not just primary legislation but also subordinate legislation and even deeply entrenched customs that violate fundamental rights can be challenged in court.

• Article 13(4): The Constitutional Amendment Conundrum: Added by the 24th Amendment Act in 1971, this clause states that “Nothing in this article shall apply to any amendment of this Constitution made under article 368.” This clause was Parliament’s response to a Supreme Court judgment and lies at the heart of a long-standing debate about the amendability of Fundamental Rights.

Judicial Doctrines Emanating from Article 13

The interpretation of Article 13 by the Supreme Court has led to the development of several important legal doctrines that are fundamental to Indian constitutional law.

1. Doctrine of Severability: This doctrine, also known as the doctrine of separability, provides that if a part of a law is found to be unconstitutional, only that offending part will be declared void and not the entire law, provided the unconstitutional part can be separated from the rest. The Supreme Court in A.K. Gopalan v. State of Madras (1950)held that the test is whether the valid and invalid provisions are so intertwined that they cannot be separated. If the valid portion is inextricably mixed with the invalid portion, then the entire statute will be held to be void.

2. Doctrine of Eclipse: This doctrine applies specifically to pre-constitutional laws that were valid at the time of their enactment but became inconsistent with the Fundamental Rights upon the commencement of the Constitution. According to this doctrine, such a law is not dead or void ab initio (from the beginning) but is merely overshadowed or “eclipsed” by the fundamental right. It remains dormant and inoperative against citizens but continues to be valid for non-citizens or for transactions that occurred before the Constitution came into force. If the constitutional prohibition is removed by a subsequent amendment, the law becomes operative again. The leading case on this is Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955).

3. Doctrine of Waiver: A significant principle flowing from the nature of fundamental rights is that they cannot be waived. In Basheshar Nath v. Commissioner of Income-Tax (1959), the Supreme Court held that a citizen cannot voluntarily give up or waive any of their fundamental rights. These rights are not just for the benefit of the individual but are a matter of public policy and a part of the constitutional scheme to build an egalitarian society.

The Epic Tussle: Article 13 vs. Article 368

The most profound and historically significant debate surrounding Article 13 has been its relationship with Article 368, which deals with the power of Parliament to amend the Constitution. The core question was: Is a constitutional amendment a “law” under Article 13(2)? If so, Parliament could not amend the Constitution in a way that abridged Fundamental Rights.

This question led to a series of landmark judgments that shaped the course of Indian constitutional history:

• Shankari Prasad v. Union of India (1951): The Supreme Court held that the power to amend the Constitution under Article 368 was a constituent power, not a legislative power. Therefore, a constitutional amendment was not a “law” within the meaning of Article 13(2). This gave Parliament a free hand to amend Fundamental Rights. This view was reiterated in Sajjan Singh v. State of Rajasthan (1965).

• Golaknath v. State of Punjab (1967): In a dramatic reversal, an 11-judge bench of the Supreme Court, by a narrow 6:5 majority, overruled its earlier decisions. It held that a constitutional amendment is a “law” for the purposes of Article 13 and that Parliament had no power to take away or abridge any Fundamental Right.

• Parliament’s Response – The 24th Amendment (1971): To nullify the effect of the Golaknath judgment, Parliament enacted the 24th Amendment, which introduced Article 13(4) and also amended Article 368 to explicitly state that an amendment under it would not be subject to Article 13.

• Kesavananda Bharati v. State of Kerala (1973): This is arguably the most important case in Indian constitutional law. A 13-judge bench, in a complex and historic judgment, partially overruled Golaknath. The Court upheld the validity of the 24th Amendment, agreeing that a constitutional amendment is not a “law” under Article 13. However, it propounded the revolutionary “Basic Structure Doctrine.” The Court held that while Parliament could amend any part of the Constitution, including Fundamental Rights, it could not alter its “basic structure” or framework. This doctrine placed an ultimate check on Parliament’s amending power, with judicial review itself being a part of this basic structure.

The Unsettled Question: Article 13 and Personal Laws

A persistent area of debate has been whether personal laws (laws dealing with matters such as marriage, divorce, inheritance, and succession, based on religious scriptures and customs) fall within the definition of “law” under Article 13(3).

• The Historical Position: The Bombay High Court in the 1952 case of State of Bombay v. Narasu Appa Mali held that personal laws are not included in the definition of “laws in force” under Article 13. The court reasoned that personal laws are derived from religious scriptures and are not enacted by a legislature. This view was largely followed for decades, creating an anomaly where statutory laws were subject to constitutional scrutiny, but uncodified personal laws that were often discriminatory were not.

• A Shift in Perspective: While the Supreme Court has not explicitly overturned the Narasu Appa Mali judgment, its approach has evolved. In the landmark Shayara Bano v. Union of India (2017) case, which dealt with the practice of instant triple talaq (talaq-e-biddat), the Supreme Court, by a majority, declared the practice unconstitutional. It is noteworthy that the court did not directly strike down the personal law itself but held that the practice was not an essential part of Islam and was manifestly arbitrary, thus violating Article 14 (Right to Equality). The judgment effectively tested a practice rooted in personal law against the touchstone of fundamental rights, signaling a significant departure from the old hands-off approach. This indicates that while the judiciary may be hesitant to directly strike down uncodified personal laws, it is increasingly willing to test their statutory expressions or specific practices for constitutional validity.

Conclusion: The Enduring Significance of Article 13

Article 13 remains the ultimate sentinel of the fundamental rights of Indian citizens. It breathes life into the concept of constitutional supremacy and establishes a robust system of checks and balances. Its journey through judicial interpretation reflects the ongoing dialogue between parliamentary sovereignty and the protection of individual liberties. From providing the foundation for judicial review to being the catalyst for the Basic Structure Doctrine, Article 13 ensures that the Fundamental Rights are not just ornamental promises but are living, enforceable guarantees that form the very soul of the Indian Constitution. It stands as a testament to the vision of the Constitution-makers who sought to create a society governed by the rule of law, where the rights of the individual are paramount.