Article 13 is an important constitutional safeguard for Fundamental Rights. It establishes that laws inconsistent with Fundamental Rights are void to the extent of their inconsistency.
It provides an important constitutional foundation for:
Article 13 ensures that:
Fundamental Rights prevail over ordinary laws.
The legislature cannot ordinarily enact or retain laws that violate Fundamental Rights.
The courts can examine such laws and provide appropriate constitutional remedies.
Article 13(1) deals with:
Pre-Constitution laws
It provides that laws existing before the commencement of the Constitution, to the extent that they are inconsistent with Fundamental Rights, become void to the extent of such inconsistency.
Pre-Constitution law + inconsistency with Fundamental Rights = Void to the extent of inconsistency
It does not necessarily mean that the entire law becomes void.
Article 13(2) deals with:
Post-Constitution laws
The State cannot make any law that:
A law violating this requirement is void to the extent of the violation.
Post-Constitution law + violation of Fundamental Rights = Void
For Article 13, "law" includes:
This ensures that Fundamental Rights cannot be bypassed merely by using a different form of legal authority.
Article 13 also recognises the expression:
"law in force"
It includes laws passed or made before the Constitution came into force and not previously repealed.
Therefore, old colonial laws can be tested against Fundamental Rights.
Article 13 provides an important constitutional basis for judicial review of laws violating Fundamental Rights.
The courts can examine whether legislation is consistent with:
Part III
If a law violates Fundamental Rights, the unconstitutional portion can be declared void.
Article 13 is one of the important constitutional foundations of:
Judicial Review
India follows:
Constitutional supremacy
The Constitution is the supreme law.
Therefore:
Ordinary law
↓
Must conform to:
Constitution
↓
Including:
Fundamental Rights
When only part of a law violates Fundamental Rights, the entire law does not automatically become invalid.
Under the:
Doctrine of Severability
the unconstitutional portion may be separated from the valid portion.
The valid part can continue to operate if it can function independently.
If:
Part A + Part B
of a law exist,
and only:
Part B
violates a Fundamental Right,
then:
Part B → Invalid
while:
Part A → May remain valid
The:
Doctrine of Eclipse
primarily applies to certain pre-Constitution laws that are inconsistent with Fundamental Rights.
Such a law is not necessarily treated as completely dead.
It becomes:
Inoperative to the extent of inconsistency
because the Fundamental Right acts as a constitutional eclipse.
If the constitutional inconsistency is later removed, the law may revive, subject to applicable constitutional principles.
Eclipse → Mainly pre-Constitution laws
The general principle is that an individual cannot ordinarily waive Fundamental Rights merely by voluntarily giving them up.
Fundamental Rights are constitutional protections and are not treated simply as private contractual rights.
The Supreme Court has adopted a cautious approach to waiver of Fundamental Rights.
Fundamental Rights are generally not treated as rights that individuals can simply waive at will.
An important constitutional issue concerns whether:
"law"
under Article 13 includes:
Constitutional amendments
The Supreme Court's position evolved over time.
The Supreme Court held that a constitutional amendment made under the constitutional amending power was not "law" within Article 13(2).
Therefore, Parliament could amend Fundamental Rights.
Shankari Prasad → Amendment not treated as law under Article 13
The Supreme Court broadly maintained the earlier position that constitutional amendments were not subject to Article 13(2) in the same manner as ordinary laws.
In:
I.C. Golaknath v. State of Punjab
the Supreme Court took a different position.
It held that Parliament could not amend Fundamental Rights in a manner that took them away or abridged them, treating constitutional amendments as "law" for Article 13 purposes.
This significantly changed the earlier position.
The Supreme Court reconsidered the issue.
It held that Parliament has broad power to amend the Constitution, including Fundamental Rights, but this power is subject to the:
Basic Structure Doctrine
Therefore:
Fundamental Rights can be amended
but:
Basic Structure cannot be destroyed.
The 24th Amendment strengthened Parliament's constitutional amending power.
It clarified Parliament's power to amend constitutional provisions, including Fundamental Rights, subject to the judicially developed Basic Structure limitation.
The Supreme Court reaffirmed that Parliament's amending power is:
Limited
An amendment cannot destroy the Constitution's Basic Structure.
The case is important for:
The relationship can be remembered as:
Article 13
→ Protects Fundamental Rights against ordinary laws
Article 368
→ Constitutional amendment power
Basic Structure Doctrine
→ Limits constitutional amendment power
Therefore, ordinary legislation and constitutional amendments are examined through different constitutional frameworks.
Article 13 enables courts to invalidate legislation that violates Fundamental Rights.
Judicial review may involve examining:
Article 13 is particularly important for rights-based review.
Fundamental Rights are also protected against unconstitutional executive action.
Executive action must conform to:
Articles 32 and 226 provide important remedies against unconstitutional State action.
Article 13(3) includes:
Customs and usages
having the force of law.
Therefore, a customary practice with legal force cannot prevail if it violates applicable Fundamental Rights.
This is particularly relevant where social practices conflict with constitutional guarantees.
An:
Ordinance
is included within the meaning of "law" for Article 13.
Therefore, an ordinance can be tested for consistency with Fundamental Rights.
The form of law-making does not exempt it from constitutional scrutiny.
Article 13 includes:
Therefore, subordinate legislation can also be challenged if it violates Fundamental Rights.
Article 13 does not necessarily invalidate an entire law merely because one provision violates a Fundamental Right.
The effect depends on:
"Void to the extent of inconsistency."
The constitutional treatment differs between:
Pre-Constitution laws
and:
Post-Constitution laws.
Article 13(1)
→ Existing law becomes void to the extent of inconsistency.
Article 13(2)
→ State cannot make a law taking away or abridging Fundamental Rights.
This distinction is important for UPSC.
Parliament cannot ordinarily pass an ordinary law that violates Fundamental Rights.
However, Parliament's power to amend the Constitution is exercised under:
Article 368
and is subject to:
Basic Structure Doctrine
Therefore, distinguish:
Ordinary legislation
from:
Constitutional amendment
Separates unconstitutional provisions from valid provisions.
Makes certain pre-Constitution laws inoperative to the extent of inconsistency.
Fundamental Rights generally cannot simply be waived by an individual.
These doctrines help courts determine the effect of unconstitutional laws.
| Case | Principle |
|---|---|
| Shankari Prasad — 1951 | Constitutional amendment not treated as law under Article 13 |
| Sajjan Singh — 1965 | Maintained broad amendment power |
| Golaknath — 1967 | Fundamental Rights could not be abridged by amendment under its approach |
| Kesavananda Bharati — 1973 | Amendment power subject to Basic Structure |
| Minerva Mills — 1980 | Limited amending power is itself constitutionally protected |
Laws inconsistent with Fundamental Rights
Pre-Constitution laws
Post-Constitution laws
Defines:
Law
and:
Law in force
Yes
Yes
Yes
Article 13 is an important basis
Severability
Eclipse
Generally, no
"Article 13 applies only to Acts of Parliament."
False.
It covers a broad range of laws and legal instruments.
"Article 13 automatically invalidates an entire law whenever one provision is unconstitutional."
False.
The Doctrine of Severability may allow the valid portion to continue.
"Article 13(1) deals with laws made after 1950."
False.
Article 13(1) deals with:
Pre-Constitution laws.
"Article 13(2) deals with pre-Constitution laws."
False.
It deals with:
Laws made by the State after the Constitution came into force.
"A constitutional amendment is always treated exactly like ordinary legislation under Article 13."
False.
The amendment question is governed by the constitutional amendment framework and Basic Structure Doctrine.
"The Doctrine of Eclipse means a pre-Constitution law is permanently dead."
Not necessarily.
It may become inoperative to the extent of inconsistency and can revive in appropriate circumstances when the constitutional obstacle is removed.
Purpose
→ Protect Fundamental Rights against inconsistent laws
Pre-Constitution laws
→ Void to extent of inconsistency
Post-Constitution laws
→ State cannot take away or abridge Fundamental Rights
Law includes
→ Ordinance
→ Order
→ Bye-law
→ Rule
→ Regulation
→ Notification
→ Custom
→ Usage having force of law
Severability
→ Separate invalid part
Eclipse
→ Pre-Constitution inconsistent law becomes inoperative
Waiver
→ Fundamental Rights generally cannot simply be waived
Shankari Prasad
↓
Sajjan Singh
↓
Golaknath
↓
24th Amendment
↓
Kesavananda Bharati
↓
Minerva Mills
Article 13 makes Fundamental Rights superior to ordinary laws, while the Basic Structure Doctrine places substantive limits on constitutional amendments.
