What are the application and interpretation of Article 13 of the Constitution? Discuss the doctrines precisely with leading cases.

Question: What are the application and interpretation of Article 13 of the Constitution? Discuss the doctrines precisely with leading cases. [BJS 2018]

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Answer

Article 13 of the Indian Constitution provides that the parliament and state legislatures are strictly prohibited from making such laws that may infringe or take away the fundamental rights that are being guaranteed by the constitution itself.

The provision talks about four principles relating to fundamental rights. According to it, Fundamental rights do exist from the date on which the Indian constitution came into force i.e., on 26th January 1950 hence fundamental rights became operative from this date only.

In this regard, clause (1) of Article 13 talks about the pre-constitutional laws i.e. the day from which the constitution came in existence there were many laws in the country and when the constitution came into existence fundamental rights do come, therefore the laws before the existence of the constitution must prove their compatibility with the fundamental rights, only then these laws would be considered to be valid otherwise they would be declared to be void.

Clause 1 is prospective in nature but not retrospective, meaning the article will be in effect from the day when the constitution came in effect (26th Jan 1950) and the person who committed offense afterward will be prosecuted according to the laws of the Indian constitution but not according to the pre-constitutional laws.

This leads to the rise of the Doctrine of Severability which states that if some parts of the statue are inconsistent with that of the fundamental rights, then the whole statue would not be declared to be void but that particular clause would be treated to be void by the court of law. This can be explained with the landmark judgment of A.K Gopalan v. State of Madras, AIR 1950 SC 27.

In this case section 14 of the Preventive Detention Act, 1950 was challenged. Section 14 of the Act says that if any person is being detained under this act then he or she may not disclose the grounds of his or her detention in a court of law. Notably, this particular statement is inconsistent with that of fundamental rights as per Article 22 of the Indian constitution, thus if we do apply the doctrine of severability here so the whole act would not be declared as void but only section 14 of the act would be declared as void as it is inconsistent with the fundamental rights.

Another doctrine originated from this provision, i.e. Doctrine of Eclipse. This doctrine simply states that any law which is contrary to fundamental rights enshrined in Part III of the constitution is not void but becomes unenforceable:e it becomes dormant for an infinite period of time until the inconsistency is removed from it. The apex court of India evolved this doctrine in the case of Bhikaji v. State of Madhya Pradesh in this case court held that any law existing before the commencement of the constitution which is inconsistent with any of the provisions mentioned in Part III of the constitution is simply not void but becomes unenforceable.

Talking in particular about Clause 4 of this provision, it states that any of the amendment made in Article 368 of the Indian constitution would not be challenged under article 13, moreover, if the amendment so made would be against the fundamental rights then also it would not be challenged under Article 13.

This leads to the birth of a landmark doctrine to our constitution, i.e. Doctrine of Basic Structure which prohibits the parliament to make laws or amendments which are inconsistent with fundamental rights. In Minerva Mills’ case 1980 the court was of the view that judicial review is the basic feature of the constitution hence cannot be amended therefore any amendment made by parliament will go through the process of judicial review.

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