• Fri. Jun 9th, 2023

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Prepared by Assist. Professor Rekha Khandelwal

Constitution of India

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Fundamental Rights ( An Introduction)

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Part – III  Fundamental Rights

Article -13-“Laws inconsistent with or in derogation of the fundamental rights

  1. 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 Part III of the Constitution.
  2. Clause (2) of article 13 provides that the 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 this clause shall be void to the extent of the contravention.
  3. Clause (3) of article 13 provides the term of “Law” on a very broad connotation, unless the context otherwise requires
  4. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having the force of law in the territory of India,
  5. “laws in force” includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of the Constitution which not previously repealed.  However, no such law or any part of it can be enforcement either at all or  in a particular area.
  6. Any thing  in this article shall not apply to any amendment of this Constitution made under Article 368”

Objective of Article 13(2)

The main objective of Article 13 (2) is to protect the supremacy of the Constitution, especially with regard to fundamental rights.

Power of Judicial Review –

Article 13 actually provides for the ‘judicial review’ of all legislations in India, past as well as future. This power has been conferred on the High Courts and the Supreme Court of India ( Article 226, Article 32). Which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part IIIof the Constitution

Article 13 consists of two parts are as follows –

  • Pre constitutional laws Article 13(1)
  • Post constitutional laws Article 13(2)

Article 13 not Retrospective in effect

Article 13(1) is of prospective in nature. According to article 13(1) All Pre- Constitution  laws inconsistent with fundamental rights will become void only after  the commencement of constitution. Article 13(1) does not give retrospective effect to the applying of fundamental rights. Article 13(1) is of prospective effect. All Pre- Constitution  laws in contravention to the provisions of the Constitution only become void just from the commencement of the constitution.They are not void ab initio (from beginning). A declaration of invalidity by the Courts will be necessary to make such inconsistent laws invalid.

Keshavan Madhavan Menon v. State of Bombay,[1] AIR 1951 SC 128

 It is held that past transactions and closed actions or any substantive rights or liabilities existing before the commencement of the Constitution are not affected by Article 13(1)

 Lachmandas v. State of Bombay,[2] AIR 1952 SC 235.

 But This doesn’t 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-Constitution rights or liabilities. Though the substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, no body can claim his rights and  liabilities to be enforced under a particular procedure which becomes inconsistent with fundamental right. 

[1] Keshavan Madhavan Menon v. State of Bombay, AIR 1951 SC 128

[2] Lachmandas v. State of Bombay, AIR 1952 SC 235.

Doctrine of Severability, Eclips, Waiver,Lifting the veil

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