Theoretical overview:
Indian Constitution is the lengthiest constitution in the world, comprising various provisions ensuring the delineation of powers and responsibilities among various instrumentalities of the State and safeguarding the rights and interests of people.
The constitution of our country is divided into 25 parts and all of them are equally important. But Part III, IV, and IV-A, dealing with Fundamental Rights, Directive Principles of State Policy, and Fundamental Duties respectively together constitute the goals of justice, liberty, and equality.
Part III of the constitution deals with Fundamental Rights.
The fundamental rights are those rights of people which are so fundamental in nature that it cannot be undermined or curtailed at any cost except under exceptional circumstances.
The fundamental rights under Part III are given from Article 12 to Article 35 of the constitution.
All those articles deals either with the organs of government, authorities, and the instrumentalities against whom such rights can be enforced, the rights themselves, or their enforceability.
Article 13 expressly lays down the supremacy of the Fundamental Rights over any other law if there is any inconsistency between the two.
It prevents the legislature from making any law in contravention of Part III of the Constitution i.e, the Fundamental Rights.
Article 13 also gives the power to declare any pre-constitutional law which is inconsistent with the Fundamental Rights as a void to the extent of its inconsistency.
It thus helps review the pre-constitutional law as well as the existing laws, thereby paving the way for judicial review.
Thus, article 13 basically declares that any law that has been in force must be consistent with the fundamental rights of the people and any law that would be made must be in consonance with the fundamental rights.
If in case a law that has been there in force within the territory of India before the commencement of the Constitution becomes inconsistent with the fundamental rights on the commencement of the constitution, then that particular law would be void till the extent of its inconsistency.
It must be noted here that in case of a law being inconsistent with the fundamental rights, then that particular law can be declared void only to the extent of its inconsistency, and not the entire law would be declared void.
The definition provided under article 13 is such that a law if not completely inconsistent with the fundamental rights, can be saved from being declared absolutely void.
The conditions under which such laws could be saved have been laid down by the apex court of our country through its various landmark judgments.
With the advent of time, the Supreme Court has interpreted in a number of ways and has laid down various doctrines for safeguarding the rights of people. The important doctrines laid down under the said article are the Doctrine of eclipse, the doctrine of severability the and doctrine of waiver.
Article 13 of the Indian Constitution has four clauses.
- Clause (1) of Article 13 deals with the pre-constitutional law while clause (2) with the post-constitutional law.
- As per clause (1) any law that had been in force in the country before the commencement of the constitution if found to be inconsistent with the fundamental rights, would be declared void to the extent of its inconsistency.
- It is important to mention here that such laws become void only when so declared by the courts and not before that.
- Acts done before the commencement of the constitution in contravention or in pursuance of the existing laws, that after the commencement of the constitution becomes inconsistent with the fundamental rights shall not be affected.
- Clause (2) of Article 13 relates to post-constitutional laws i.e., those laws that were made after the commencement of the constitution. As per this clause, the state cannot make any law that abridges or takes away the fundamental right of a person and if it does so, then such law would be void to the extent of its contravention.
- Clause (3) of the article defines the term “law” and “laws in force”.
- The definition includes statutory laws that may be made either directly by the legislature or by the subordinate authorities in the exercise of their delegated legislative powers.
- Such laws made under delegated legislation include rules, notifications, orders, regulations, and by-laws as mentioned under this clause and other such laws.
- Apart from this, administrative orders of the executive, made in pursuance of statutory authority, if affecting the legal rights of the citizens, would very much fall within the meaning of “law” under this section.
- It must also be noted that the term “law” do include “custom” and “usage” having the force of law but personal laws such as the Hindu Law and Mohammedan Law are not included within the meaning of this expression.
- Article 13 clause (4) states that “Nothing in this article shall apply to any amendment of this Constitution made under article 368.
Doctrine of Severability
- It must be observed that Article 13 does not make the entire act inoperative, but only that part is held inoperative which is inconsistent with the fundamental rights.
- Doctrine of severability says that when some provisions of an act are inconsistent with the fundamental rights and if such provisions can be severed from the rest of the statute, then only the offending provision would be declared void by the court and not the entire act.
Doctrine of Eclipse:
- The doctrine of eclipse says that any existing law which is inconsistent with the fundamental rights is not completely invalid, but is overshadowed by the fundamental rights and remains dormant but not dead.
- It would be valid if a question arises for determining the rights and obligations that would have been incurred before the commencement of the constitution and also for those persons who have not been given the fundamental rights.
- Till the time, the law violates the fundamental right, it remains dormant, but if by an amendment such law no more violates the fundamental rights, then the law becomes alive and operative.
- The doctrine of eclipse was earlier applicable to just pre-constitutional laws but now it can also be extended to even post-constitutional law to some extent.
Important case laws:
State of Bombay v. F.N. Balsara,: some provisions of the Bombay Prohibition Act, 1949 were held ultra vires, but the rest of the act was allowed to stand.
The court held that “ The decision declaring some of the provisions of the act to be invalid does not affect the validity of the act as it remains.”
Bhikaji Narayan Dhakras v. State of M.P: the issue before the court was that if an existing act has become inconsistent with the fundamental rights on commencement of the constitution, then can it become valid again if there comes any amendment which removes such inconsistency.
The court held that the effect of the amendment is that it removes the shadow and makes the impugned act free from inconsistency.
Points to remember:
- The constitution of our country is divided into 25 parts and all of them are equally important. But Part III, IV, and IV-A, dealing with Fundamental Rights, Directive Principles of State Policy, and Fundamental Duties respectively together constitute the goals of justice, liberty, and equality.
- Article 13 of the Indian Constitution has four clauses.
- Clause (1) of Article 13 deals with the pre-constitutional law while
- Clause (2) of Article 13 with the post-constitutional law.
- Clause (3) of the article defines the term “law” and “laws in force”.
- Doctrine of severability says that when some provisions of an act are inconsistent with the fundamental rights and if such provisions can be severed from the rest of the statute, then only the offending provision would be declared void by the court and not the entire act.
- The doctrine of eclipse says that any existing law which is inconsistent with the fundamental rights is not completely invalid, but is overshadowed by the fundamental rights and remains dormant but not dead.