Article 13 of the Indian Constitution

Article 13 was introduced with this purpose in mind—it provided the legal mechanism to invalidate any law (old or new) that violated the Fundamental R

Article 13 of the Indian Constitution: Laws Inconsistent with Fundamental Rights

Introduction

The Constitution of India, adopted on 26th January 1950, promises to secure justice, liberty, equality, and fraternity for all its citizens. At the heart of this constitutional vision lies the Fundamental Rights, enshrined in Part III (Articles 12 to 35). These rights are not merely ornamental; they are enforceable guarantees that protect individual freedoms against the arbitrary actions of the State. Article 13 of the Constitution serves as a powerful instrument to preserve and protect these rights by invalidating any law that violates or curtails them. It establishes the principle of constitutional supremacy and affirms that any law inconsistent with the Constitution is void.

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Historical Background

Before India became a sovereign republic, a vast number of laws were enforced under the British colonial government. Some of these laws were discriminatory and oppressive, designed to subjugate rather than serve the people. When the Indian Constitution came into force, there was a strong need to review such pre-existing laws to ensure they did not conflict with the new democratic ethos. Article 13 was introduced with this purpose in mind—it provided the legal mechanism to invalidate any law (old or new) that violated the Fundamental Rights granted under the Constitution.

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Understanding the Text of Article 13

Article 13 is divided into four clauses, each with its own significance. Here's a deeper look at what each clause means and how it functions:

Clause (1): Pre-Constitutional Laws

This clause declares that any law in force before the commencement of the Constitution, if it violates or is inconsistent with the Fundamental Rights, shall be void to the extent of such inconsistency. It does not strike down the entire law automatically, but only those provisions that are unconstitutional. This means old laws will continue to be valid only if they align with the new constitutional principles.

For example, the Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships, was a colonial-era law. In 2018, the Supreme Court in Navtej Singh Johar v. Union of India read down Section 377 as being violative of Articles 14, 15, and 21 of the Constitution.

Clause (2): Post-Constitutional Laws

This clause prohibits the State from making any law that abridges or takes away Fundamental Rights. If any such law is enacted after the Constitution comes into force, it shall be void to the extent of the contravention. This reinforces the prospective nature of constitutional protection, ensuring that all future laws remain compliant with the framework of fundamental liberties.

For instance, if Parliament were to pass a law that curtails freedom of speech without reasonable justification, such a law would be challenged and potentially declared void under Article 13(2).

Clause (3): Definition of "Law"

To remove ambiguity, Clause (3) clearly defines the term “law” to include:

• Ordinances

• Orders

• By-laws

• Rules

• Regulations

• Notifications

• Customs or usages having the force of law

This comprehensive definition ensures that all forms of governmental rules, whether legislative or executive in nature, are subject to judicial scrutiny under Article 13. The inclusion of customs and usages is especially important in the Indian context, where personal laws and traditional practices can sometimes contradict fundamental rights.

Clause (4): Constitutional Amendments Not Included

This clause was inserted through the 24th Constitutional Amendment Act (1971). It states that Constitutional Amendments are not considered “law” under Article 13, and therefore cannot be challenged on the ground that they violate Fundamental Rights.

This amendment was a direct response to the Supreme Court’s judgment in I.C. Golaknath v. State of Punjab (1967), where the Court held that Parliament could not amend Fundamental Rights. After the 24th Amendment, Parliament regained its power to amend Fundamental Rights, though this power was later curtailed by the basic structure doctrine introduced in Kesavananda Bharati v. State of Kerala (1973).

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Role of Judiciary in Article 13

The Indian judiciary, particularly the Supreme Court, has been the primary guardian of Article 13. Through judicial review, the courts have the authority to declare laws void if they are inconsistent with Fundamental Rights. Some landmark judgments that shaped the interpretation of Article 13 are:

• Golaknath v. State of Punjab (1967): Held that Parliament cannot curtail Fundamental Rights.

• Kesavananda Bharati v. State of Kerala (1973): Introduced the basic structure doctrine, stating that even constitutional amendments cannot alter the fundamental features of the Constitution.

• Minerva Mills v. Union of India (1980): Reaffirmed the supremacy of Fundamental Rights and the role of judicial review.

• Justice K.S. Puttaswamy v. Union of India (2017): Declared Right to Privacy as a part of Article 21 and held that any law violating this right would be subject to scrutiny under Article 13.

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Impact of Article 13 on Indian Democracy

Article 13 acts as a shield for the citizens and a check on the State. It ensures that the democratic principles of liberty, equality, and justice are not violated by outdated laws or arbitrary new legislation. By allowing courts to strike down unconstitutional laws, it plays a key role in maintaining constitutional morality and the rule of law.

Moreover, by including customs and usages within its scope, Article 13 also allows for the reformation of discriminatory social practices, especially those affecting women, children, and marginalized communities. For instance, in the Shayara Bano case (2017), the practice of Triple Talaq was declared unconstitutional, citing its inconsistency with gender equality under Article 14.

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Conclusion

Article 13 stands as a pillar of the Indian Constitution's commitment to justice and equality. It protects citizens from the tyranny of unjust laws and ensures that the spirit of the Constitution prevails over any legislation or custom. By empowering the judiciary to enforce Fundamental Rights, Article 13 creates a robust mechanism to prevent abuse of power by the State. It is a living reminder that no law is above the Constitution, and the rights of individuals shall always take precedence in a truly democratic society.