Art13:- Laws inconsistent with or in

.derogation of the fundamental rights

.It is consisting of four clauses

Article 13 (1): Pre-Constitutional

Laws

Article 13 (1) declares that all Laws in

force in the territory of India
immediately before the commencement
of this Constitution shall be void to the
extent to which they are inconsistent
with the provisions of the part-III of the
.Constitution

Article 13 (2): Post- Constitutional

Laws
Article 13 (2) state shall not make any
Law which takes away or abridges the
Fundamental Rights conferred by part-
III of the Constitution and any Law
made in contravention of Fundamental
Rights shall to the extent of
.inconsistency be void

Article 13 (3) (a): Law

Law a very broad connotation (a)

which includes any Ordinance, Order,
Bye-laws, Rule, Regulation,
Notification, Custom or Usage having
.the force of Law
(b) laws in force includes laws
passed or made by a Legislature or
other competent authority in the
territory of India before the
commencement of this Constitution
and not previously repealed, not
withstanding that any such law or any
part thereof may not be then in
operation either at all or in
particular areas.
(4) Nothing in this article shall apply to
any amendment of this Constitution
made under article 368. (Twenty-
fourth Amendment) Act, 1971

: Power of JUCIAL REVIEW

In fact, Article 13 provides for the
judicial review of all Legislations in
.India, past as well as future

This power has been conferred on the

High Courts (U/a 226) and the
Supreme Court (U/a 32) which can
declare a Law un-Constitutional if it is
inconsistent with any of the provision
.of part-III of the Constitution

: Meaning of JUDICIAL REVIEW

Judicial Review is the power of Courts

to pronounce upon the Constitutionality
of Legislative Acts which falls within
their normal jurisdiction to enforce and
the power to refuse to enforce such as
they find to be unconstitutional and
.hence void

Historical Background of Judicial

:Review

For the first time it was propounded by

the Supreme Court of USA originally
American Constitution did not contain
an express provision for judicial
review, but it was assumed by the
Court in historic case of

MARBURY Vs MADISON

Facts of the case: The Federalist had

lost the election of 1800, but before
leaving the office, they had succeeded
in creating several new judicial posts.
Among these were 42 Justice of Peace,
to which Federalist were appointed by
the President JOHN ADAMS. These
appointments were confirmed by the
SENATE and they were signed and
sealed. But ADAMs secretary of state
JOHN MARSHAL failed to send
.certain of them

When the new President THOMAS

JEFFERSON assumed office, he
instructed his secretary of state
MADISON not to deliver 17 of these
commissions including one of the
.WILLIAM MARBURY

WILLIAM MARBURY filed a writ

petition before Supreme Court for
issuing a writ of mandamus relying on
.Sec.31 of Judiciary Act of 1789

:Judicial Reviews in other cases

In KESAVANANDA
BHARATIs case

Justice KHANNA said that judicial

review has become an integral part of
our Constitutional system and power
has been vested in the High Courts and
Supreme Court to decide about the
Constitutional validity of provisions of
.statute

Judicial review is judicial restraint on

the Legislative as well as Executive
.organs

The Court held that judicial review is

the basic feature of Indian Constitution
and therefore it cannot be damaged or
destroyed by amending the
.Constitution U/A 368

Again in

L. CHANDRA KUMAR Vs UNION

OF INDIA
The Court held that the power of
Judicial review of Legislative action as
vested in High Court U/A 226 and in
the Supreme Court U/A 32 is a part of
basis structure of the Constitution and
cannot be ousted or excluded even by
.the Constitution amendment

:PRE-CONSTITUTIONAL LAWS

Article 13 (1) all Pre-Constitution or

existing Laws i.e., Laws which were in
force immediately before the
commencement of the Constitution
shall be void to the extent to which
they are inconsistent with Fundamental
Rights from the date of the
.commencement of the Constitution

Article 13 (1) not retrospective in

effect: Article 13 (1) is prospective in
nature. All Pre-Constitution Laws
inconsistent with Fundamental Rights
will become void only after the
commencement of the Constitution.
.They are not void-ab-initio

The Supreme Court in

KESHAVA MADHAVA MENON

(AIR1951 SC128)

Vs

STATE OF BOMBAY
Observed that there is no Fundamental
Rights that a person shall not be
prosecuted and punished for an offence
committed before the Constitution
came into force, so as far as the past
Acts are concerned the Laws exists not
withstanding that it does not exist with
respect to the future exercise of
.Fundamental Rights

It was held that Article 13 (1) could not

apply to his case as the offence was
committed before the present
Constitution came into force and
therefore the proceeding started against
him in 1949 was not affected. The
Supreme Court held that the
Fundamental Rights became operative
only on and from the date of the
.Constitution

LACHMANDAS Vs STATE OF
BOMBAY

The appellants who were accused of

having committed murder and other
serious offences were directed by the
Government of Bombay by an order
made on the 6th August, 1949, to be
tried under the Bombay Public Safety
Measures Act by a Special Judge
appointed under the Act, charges were
framed against them on the 13th
January, 1950, and they were convicted
.in March, 1950

Substantive rights and liabilities

acquired or accrued before the date of
the Constitution remain enforceable,
but it does not mean that a
discriminating procedure laid down by
a Pre-Constitution Act is to be followed
.in respect of pending proceedings

:DOCTRINE OF SEVERABILITY
When a part of the statute is declared
inconsistent with part III, then a
question arises whether the whole of
the statute or only that part which is
unconstitutional should be declared as
void. To resolve this problem the
Supreme Court has devised the doctrine
.of Severability

It means if an offending provision can

be separated from that which is
Constitutional then only that part which
is offending is to be declared as void
.and not the entire statute

Article 13 contains the word to the

extent of such inconsistency to void. It
means when some provision of Law is
held to be unconstitutional then only
repugnant provisions of the Law in
question shall be treated as void and
.not the whole statute

Exception: if the valid portion is so

closely mixed up with invalid portion
that it cannot be separated, then the
.Court will hold the entire Act void

This doctrine was elaborately

considered in R.M.D.C Vs UNION
OF INDIA

ss. 4 and 5 Of the Prize Competitions )

Act (42 of 1955)
The Court held that where after
removing the invalid provision from
the statute what remains constitutes a
complete code, there is no necessity to
.declare the whole Act invalid

:DOCTRINE OF ECLIPSE

It is based on the principle that a law

which violates Fundamental Rights is
not nullity or void ab initio but
becomes only unenforceable i.e., it
remains in a moribund condition. It is
over shadowed by the Fundamental
Rights and remains dormant but it is
.not dead

Such laws are not wiped out entirely

from the statute book. They exist for all
past transactions and for the
enforcement of rights acquired and
liabilities incurred before the present
Constitution came into force and for
determination of Right of person who
have not been given Fundamental Right
by the Constitution. It is only as against
the citizen that they remain in a
dormant or moribund condition but
they remain in operation as against
non-citizens who are not entitled to
.Fundamental Rights

Can a pre-constitutional law which

becomes unenforceable after the
Constitution came into force be again
revived and made effective by an
?amendment in the Constitution

BHIKAJI Vs STATE OF M.P

Madhya Pradesh C.P. & Berar Motor

Vehicles (Amendment) Act, 1947 (Act
III of 1948) which amended the Motor
Vehicles Act, 1939 (Central Act IV of
1939) created a monopoly of the motor
transport business in its favour to the
exclusion of all private motor transport
.operators

By First Amendment Act, 1951,

Art19(2) to (6) was added to Art19. (6)
State by law can imposes, any
reasonable restriction on Art19(1)(g) on
the ground of in the interests of the
.general public

The Supreme Court held that the effect

of the amendment was to remove the
shadow and to make the impugned Act
free from all blemish and infirmity. It
become enforceable against citizens as
well as non-citizens after the
Constitutional impediment was
removed. This law was merely eclipsed
for the time being by the Fundamental
Rights. As soon as the eclipse is
removed the law begins to operate from
.the date of such removal

POST CONSTITUTION LAWS

Article 13 (2) prohibits state to make

any law which takes away or abridges
rights conferred by part III of the
.Constitution
If state makes such a law then it will be
ultra-virus and void to the extent of the
.Constitution

It is still born law and cannot be

revived by removal of the
Constitutional prohibition by
subsequent amendment of the
.Constitution

Though Post Constitutional law

inconsistent with Fundamental Rights
is void from their very inception yet a
declaration by the court of their
.invalidity will be necessary
As distinguished from clause (1),
clause (2) makes the inconsistent laws
void ab initio and even conviction
made such unconditional laws shall
.have to be set aside

Does the doctrine of Eclipse apply to a

?Post Constitutional Law

DEEP CHAND Vs STATE OF U.P

The Supreme Court held that a Post

Constitutional law made under Article
13 (2) which contravenes a
Fundamental Rights is nullity from its
inception and still born law. It is void
ab initio. The doctrine of Eclipse does
not apply to Post Constitutional laws
and therefore a subsequent
Constitutional amendment cannot
.revive it

In MAHENDRALAL JAIN Vs
STATE OF U.P

The court held that the doctrine of

Eclipse applies to only Pre-
Constitutional law under Article 13(1)
and not to Post-Constitutional laws
under Article 13 (2). There is a clear
.distinction between these two

The voidness of the Pre-Constitutional

law is not void from its inception but
only from the date of commencement
of the Constitution. On the other hand
the voidness of Post-Constitutional law
is from its very inception and such a
.law cannot exist for any purpose

Application of doctrine of Eclipse to

Post-Constitutional law against non-
citizens. But in STATE OF
GUJARAT Vs AMBICA MILLS

The Supreme Court modified its view

and held that a Post-Constitutional law
which is inconsistent with Fundamental
Rights is not nullity or non-existent in
.all cases and for all purposes
The doctrine of absolute nullity is not a
universal rule and there are many
exceptions. A Post-Constitutional law
which takes away or abridges the
Fundamental Rights conferred under
Article 19 will be operative as regards
to non-citizens because Article 19 is
not available to non-citizens. Such a
law will become void or non-existent
only against citizens because Article 19
.is available to the citizens only

Application of doctrine of Eclipse to

Post-Constitutional law against
.citizens
But in DULARE LODH Vs III
ADDITIONAL DISTRICT JUDGE,
KANPUR

The Supreme Court applied the

doctrine of Eclipse to Post-
.Constitutional law against citizens

The respondent landlord filed a suit for

ejectment in 1971 and obtained a
decree for ejectment against the
appellant tenant. By virtue of the
provisions of 1972 Act the case was
transferred to the court of the Judge of
small causes, who tried the case and
passed a decree in favour of the
.respondent in 1973
The tenant did not object to the
jurisdiction nor he did prefer an appeal
or revision against the judgment and
.the same become final

The landlord filed execution petition

but his attempt to get the decree
executed was stalled sometimes by
objection filed by the tenant and
sometimes by amendments in law and
with the result that even after 13 years
of litigation, the landlord was not able
to get the possession. This was because
of the statutory amendment which
made the decree in-executable and was
.ineffective and dormant
But by virtue of Amendment Act 1976
was made applicable retrospective
effect which was enacted to remove the
injustice. Its object was to revive the
decree which had become in-
.executable

:DOCTRINE OF WAIVER

It does not permit any citizen to Waive

any Fundamental Right because they
.are conferred by the Constitution

Can a citizen waive his Fundamental

?Rights
The doctrine of waiver has no
application to the provision of law
.enshrined in part III of the Constitution

In BASHESHERNATH Vs
INCOME TAX COMMISSIONER
and

MUTHIAH Vs INCOME TAX

COMMISSIONER

The Supreme Court held that it is not

open to citizen to waive any of the
Fundamental Rights conferred by part
III of the Constitution. These rights
have been put in the Constitution not
merely for the benefit of the individual
but as a matter of Public policy for the
.benefit of the general public

:LAW AND LAW IN FORCE

Law includes even the administrative

order or issued by an executive officer
but does not include administrative
directions or instructions issued by the
Govt. for the guidance of its officers. It
does not include Departmental
instructions. Departmental instructions
neither Law within the meaning of
Article 13 (3)(a) nor are Procedure
established by Law within the
.meaning of Article 21
Is Constitutional amendment a Law
?under Article 31 (2)

In SHANKARI PRASAD Vs
UNION OF INDIA and

SAJJAN SINGH Vs STATE OF

RAJASTHAN

The Supreme Court held that the word

Law in clause (2) did not include
Law made by Parliament under Article
368. The word Law in Article 13 must
be taken to mean Rules and
Regulations made in exercise of
ordinary Legislative power and not
amendments to Constitution made in
exercise of Constituent power,
therefore Article 13 (2) did not affect
.amendments made under Article 368

But in GOLANATH Vs STATE OF

PUNJAB

The Supreme Court over-ruled its

decision and held that the word Law
in Article 13(2) include every branch of
Law, Statutory, Constitutional etc.
Hence, if an amendment to the
Constitution took away or abridged
Fundamental Rights of citizens, the
.amendment would be declared void

:24th AMENDMENT 1971

In order to remove the difficulty
24th Amendment Act 1971 was
enacted. By this amendment clause
(4) was added to Article 13. It says
that Constitutional amendments
passed under Article 368 shall not be
considered as Law within the meaning
of Article 13 and therefore cannot be
challenged as infringing the provisions
.of part III of Constitution

KESAVANANDA BHARTHI Vs
STATE OF KERALA

The validity of the 24th Amendment Act

1971 was considered by the Supreme
Court in KESAVANANDA
.BHARATHIs case

Encouraged by this decision in

KESAVANANADA BHARATHIs
case clause(5) was inserted in Article
368 by the 42nd Amendment Act 1976
.by Mrs. INDIRA GANDHI

Clause 5 of the Article 368 provides

that there shall be no limitation
whatever on the Constituent power of
Parliament to amend by way of
addition, variation or repeal the
provisions of this Constitution under
.Article 368
But in MINERVA MILLS Vs UNION
OF INDIA case

The Supreme Court struck down these

two clauses and held that Judicial
Review being a basic feature of our
Constitution cannot be taken away by
.inserting clause 4 & 5 in Article 368

S P SAMPAT KUMAR Vs UNION

OF INDIA

Article 323-A & ADMISTRATIVE

TRIBUNALS ACT 1985, upheld and
said it clears the jurisdiction of High
Court but not jurisdiction of Supreme
Court under
L CHANDRA KUMAR Vs UNION
OF INDIA (AIR 1997 SC1125)

.Article 323-A was struck down