Free Judiciary Notes · Constitution Notes
Art. 13
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13. LAWS INCONSISTENT WITH OR IN DEROGATION OF THE FUNDAMENTAL RIGHTS. —
1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
3. In this article, unless the context otherwise requires, —
a. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
Nothing in this article shall apply to any amendment of this Constitution made under article 368.
13(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
PRE-CONSTITUTION LAWS
According to clause (1) of Article 13 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 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. Such inconsistent law is not wiped out so far as the past Acts are concerned.
KESHAVA MADHAV MENON V. STATE OF BOMBAY. (AIR 1951 SC 128)
In this case, a prosecution proceeding was started against the petitioner under the Press (Emergency Powers) Act, 1931 in respect of a pamphlet published in 1949. The present Constitution came into force) (during the pendency of the proceeding in the Court.
The appellant contended that the Act was inconsistent with the Fundamental Rights conferred by Article 19 (1)(a) of the Constitution hence void, and the proceeding against him could not be continued.
The Supreme Court 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 proceedings started against him in 1949 were not affected.
The Supreme Court held that As the Fundamental Rights became operative only on and from the date of the Constitution, the question of the inconsistency of the existing laws with those rights must arise from the date those rights came into being. The voidness of the existing law is limited to the future exercise of Fundamental Rights.
Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute Book for to do so will be to give them retrospective effect which, we have said, they do not possess.”
The Supreme Court observed: ‘There is no Fundamental Right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past Acts are concerned the law exists notwithstanding that it does not exist with respect to the future exercise of the Fundamental Rights.’
This does not mean that a discriminatory procedure laid down by a pre-Constitution Act is to be followed in respect of pending proceedings or in respect of new proceedings started in respect of pre rights or liabilities.
LACHMANDAS V. STATE OF BOMBAY. AIR 1952 SC 235.
Though the substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, nobody can claim his rights and liabilities to be enforced under a particular procedure which becomes inconsistent with Fundamental Rights.
DOCTRINE OF SEVERABILITY
When a part of the statute is declared unconstitutional then a question arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be declared as such.
To resolve this problem, the Supreme Court has devised the doctrine of severability or separability.
This doctrine means that 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 of the Constitution uses the words “to the extent of such inconsistency be void” which means that when some provision of the law is held to be unconstitutional then only the repugnant provisions of the law in question shall be treated by courts as void and not the whole statute.
A.K. GOPALAN V. STATE OF MADRAS, AIR 1950 SC 27:1950 SCJ 174
The Supreme Court while declaring Section 14 of the Preventive Detention Act, 1950, as ultra tires, observed ‘The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of the legislation. Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act.
STATE OF BOMBAY V. BALSARA,
Similarly, in State of Bombay v. Balsara, a case under Bombay Prohibition Act, 1949, it was observed that the provisions which have been declared as void do not affect the entire statute, therefore, there is no necessity for declaring the statute as invalid.”
This is, however, subject to one exception. If the valid portion is so closely mixed up with invalid portion that it cannot be separate without leaving an incomplete or more or less mingled remainder, then the courts will hold the entire Act, void.
The primary lest is whether what remains is so inextricably mixed with the part declared invalid that what remains cannot survive independently.
ROMESH THAPPAR STATE OF MADRAS AIR 1950 SC 124;
CHINTAMAN RAO V. STATE OF M.P., AIR 1951 SC 118.
The Supreme Court observed in Romesh Thappar State of Madras AIR 1950 SC 124; Chintaman Rao v. State of M.P., AIR 1951 SC 118. that: ‘Where a law purports to authorise the imposition of restrictions on a Fundamental Right in language wide enough to cover restrictions, both within and without the limits provided by the Constitution and where it is not possible to separate the two, the whole law is to be struck down.
So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.”
R.M.D.C. V. UNION OF INDIA. AIR 1957 SC 628
The doctrine of severability was elaborately considered in R.M.D.C. v. Union of India, AIR 1957 SC 628;
In that case, Section 2(d) of the Prize Competition Act, which was broad enough to include competitions of a gambling nature as well as competitions involving skill, was involved. The Supreme Court held that the provisions of the Act were severable and struck down those provisions which related to competition involving skill.
The Court in R.M.D.C. case held that where after removing the invalid provision what remains constitutes a complete Code there is no necessity to declare the whole Act invalid.
In such cases, whether the valid parts of a statute are separable from the invalid, the intention of the Legislature is the determining factor.
The test to be applied is whether the Legislature would have enacted the valid part if it had known that the rest of the statute was invalid.
But if what remains on the statute book cannot be enforced without making alteration the whole Act should be declared as void.
Severability is the question of substance and not of form, and in determining the intention of the Legislature it is legitimate to take into account the history of the legislation and the object as well as the title and Preamble.
Similarly was held in case Motor General Traders v. State of A.P., (1984) 1 SCC 222.]
KIHOTA HOLLOHAN V. ZACHITHU, AIR 1993 SC 412.
In above case, it has been held that Section 10 of the Tenth Schedule minus para 7 remains valid and constitutional.
Para 7 of the Tenth Schedule provided that the Speakers decision regarding the disqualification shall be final no court could examine its validity.
Para 7 which has been declared unconstitutional is severable from the main provisions of the Tenth Schedule.
The remaining provisions of the Tenth Schedule stand independent of Para 7 and are complete in themselves and workable.
DOCTRINE OF ECLIPSE.
The doctrine of eclipse 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. 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 persons who have not been given Fundamental rights by the Constitution, e.g., non- citizens. [Keshav Madhava Menon v. State of Bombay. AIR 1951 SC 128 at pp. 599-600.]
It is only as against the citizens 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. [State of Gujarat v. Sri Ambika Mills. AIR 1974 SC 1300.]
BHIKAJI V. STATE OF M.P. AIR 1955 SC 781.
Can such a law which becomes unenforceable after the Constitution came into force be again revived and made effective by an amendment in the Constitution?
It was to solve this problem that the Supreme Court formulated the doctrine of eclipse in Bhikaji v. State of M.P.[AIR 1955 SC 781.]
In that case C.P. and Berar Motor Vehicles (Amendment) Act, 1947 was in question.
Impugned Act authorized the State Government to acquire and nationalise (make up) the entire motor transport business in the province and thereby to exclude all private motor transport operators.
This impugned Act was valid when it was enacted. But it became void on the coming into force of the Constitution in 1950 as they violated fundamental right to practise any profession or to early or any occupation trade or business given under Article 19 (1)(g) of the Constitution.
However, in 1951, Clause (6) of Article 19 was amended by the Constitution (1st Amendment) Act, so as to authorise the Government to monopolise any business.
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 or infirmity’.
It became 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.
DOCTRINE OF WAIVER
Can a citizen waive his fundamental right?
The doctrine of waiver has no application to the provision of law enshrined in Part III of the Constitution.
Behram v. State of Bombay. AIR 1955 SC 146.
It is not open to an accused person to waive or give up his constitutional rights and get convicted.
POWER OF JUDICIAL REVIEW
Article 13 (1) declares that all laws in force in the territory of India immediate before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of Part III of the Constitution.
Clause (2) of this article provides that the State shall not make any law which takes away or abridges the fundamental rights conferred by Part Ill of the Constitution; and any law made in contravention of fundamental rights shall, to the extent of contravention, be void.
Clause (3) In this article, unless the context otherwise requires, -
a. "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India 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, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
Clause (3) of this article gives the term law' a very broad connotation which includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law. Thus not only the Legislative enactment, but anything mentioned here can be challenged as infringing a fundamental right.
MEANING AND BASIS OF JUDICIAL REVIEW
‘Judicial Review’ is the power of courts to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and the power to refuse to enforce such as they find to be unconstitutional and hence void.
KESAVANANDA BHARTI V. STATE OF KERALA, AIR 1973 SC 1461.
According to Khanna, J., in the Fundamental Rights case, “Judicial Review” has thus become an integral part of our Constitutional System and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes. If the provisions of the statutes are found to be violative of any of the articles of the Constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are empowered to strike down the said provisions”.
The concept of Judicial power has the origin in the THEORY OF LIMITED GOVERNMENT and in the THEORY OF TWO LAWS—an ordinary and supreme (i.e., the Constitution).
In this regard Montesquieu gave his doctrine of separation of powers to put a curb on absolute and uncontrollable power in any one organ of the Government.
A legislature, an executive and a judicial power comprehend the whole of power of the Government.
Each organ should act within its sphere of jurisdiction.
That power corrupts a man and absolute power corrupts absolutely which ultimately leads to tyranny, anarchy, and chaos.
Judicial Review is thus the interposition of judicial restraint on the legislative as well as the executive organs of the Government.
In the Indian Constitution there is an express provision for judicial review, and in this sense it is on a more solid footing than it is in America.
But even in the absence of the provision for judicial review, the courts would have been able to invalidate a law which contravened any constitutional provision, for, such power of judicial review follows from the very nature of constitutional law.
A.K. GOPALAN V. STATE OF MADRAS, AIR 1950 SC 27. Kania, C.J., pointed out that it was only by way of abundant caution that the framers of our Constitution inserted the specific provisions in Article 13.
Thus, under the power of judicial review the highest Court of the Nation can test all pre-Constitution and post- Constitution or future laws, and declare them unconstitutional in case they contravene any of the provisions of Part III of the Constitution.
In KESAVANAND BHARTI’S CASE AIR 1973 SC 1461. it has been held that Judicial Review is the basic features of the Indian Constitution and, therefore, it cannot he damaged or destroyed by amending the Constitution under Article 368 of the Constitution’.
Again, in L. CHANDRA KUMAR V. UNION OF INDIA, [AIR 1997 SC 1125.] the Supreme Court has held that the power of judicial review of legislative action as vested in the Nigh Court under Article 226 and in the Supreme Court under Article 32 is part of the basic structure of the Constitution and can be ousted or excluded even by the constitutional amendment.