Laws inconsistent with fundamental rights

Polity & Governance glossary

Also called: Article 13 · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Class 11, Ch 6 "Judiciary"

Meaning

Article 13 says that any law which takes away or cuts down a fundamental right is void, but only to the extent that it clashes with that right. This covers laws made before 26 January 1950 and laws made after it. Here "law" also includes ordinances, rules, bye-laws, notifications and custom that has the force of law. Since the 24th Amendment (1971), a constitutional amendment made under Article 368 is not "law" for this purpose.

It matters because it gives Part III real force. Article 13 makes a law that breaks a right void, and Articles 32 and 226 give the remedy. Together they are the written base of judicial review in India.

Explanation

How Article 13 works: its four clauses

  • Judicial review: the power of courts to check whether a law or a government action fits the Constitution, and to strike it down if it does not.
  • Article 13(1), old laws: laws in force before 26 January 1950 are void to the extent they clash with Part III [2].
  • Article 13(2), new laws: the State shall not make any law that "takes away or abridges" these rights. A law made against this is void "to the extent of the contravention" [2].

  • "State" here has the wide meaning given in Article 12. It covers Parliament, state legislatures, governments, local bodies and "other authorities".

  • Article 13(3), meaning of "law": includes ordinances, orders, bye-laws, rules, regulations, notifications, and custom or usage having the force of law.

  • So the government cannot escape Article 13 by acting through an ordinance or a rule instead of an Act.

  • Article 13(4), amendments left out: added by the 24th Amendment (1971). Article 13 does not apply to a constitutional amendment made under Article 368.

The key words "to the extent of"

  • The whole law does not always fall. Only the part that breaks a right is void.

  • The doctrines of eclipse and severability come from these words.

  • Doctrine of eclipse: a pre-Constitution law that breaks a right is not wiped out. It is only overshadowed, like the moon during an eclipse.

  • Bhikaji Narain Dhakras v. State of M.P. (1955): a 1947 law let the state take over the motor transport business. It clashed with Article 19(1)(g).
  • The 1st Amendment (1951) changed Article 19(6) to allow state monopolies. The shadow lifted, and the law revived.

  • A post-Constitution law that breaks a right is void from the start (Deep Chand, 1959). It can still apply to non-citizens, because rights like Article 19 do not protect them (State of Gujarat v. Ambica Mills, 1974).

  • Doctrine of severability: if only one part of a law is bad, only that part is struck down, as long as the rest can stand on its own.

  • The test comes from R.M.D. Chamarbaugwalla v. Union of India (1957): would the legislature have passed the good part by itself?

  • Reading down: the court gives a provision a narrower meaning so that it stays valid, instead of striking it down.

  • Doctrine of waiver: a person cannot give up a fundamental right, even by choice.
  • Basheshar Nath v. CIT (1959): these rights serve public policy. They are not only private benefits.

Limits and exceptions

  • Constitutional amendments: Article 13(4) keeps them outside Article 13. They are tested only against the basic structure (core features of the Constitution that even an amendment cannot destroy).
  • Saved laws: laws that the Constitution itself protects from challenge, even when they break fundamental rights. They are exceptions to Article 13.
  • Article 31A (1st Amendment, 1951): laws for taking over estates (large landholdings) and related reforms cannot be challenged under Articles 14 and 19.
  • Article 31B and the Ninth Schedule (1st Amendment, 1951): an Act placed in the Ninth Schedule cannot be held void for breaking any fundamental right.

  • Article 31C (25th Amendment, 1971): laws giving effect to Article 39(b) and (c) are shielded from Articles 14 and 19.

  • Uncodified personal law (religious family law not written into an Act):

  • State of Bombay v. Narasu Appa Mali (Bombay HC, 1952) held that it is not "law" or "custom" under Article 13(3), so it cannot be tested against fundamental rights.

In the Constitution and practice

  • Where it sits: Part III (Articles 12–35), right after the definition of "State" in Article 12. Articles 32 (Supreme Court) and 226 (High Courts) give the remedy when Article 13 is broken.
  • Who uses it: the Supreme Court and the High Courts, when a citizen challenges a law or rule.
  • Early use: A.K. Gopalan v. State of Madras (1950)
  • Only section 14 of the Preventive Detention Act, 1950 was struck down. It barred a detenu (a person held without trial) from telling the court the grounds of detention.

  • The rest of the Act survived. This is severability in action.

  • The fight over amendments:

  • Shankari Prasad v. Union of India (1951): Parliament can amend fundamental rights under Article 368. The 1st Amendment was upheld.
  • Golaknath v. State of Punjab (1967): 11 judges, 6:5. An amendment is "law" under Article 13(2), so Parliament cannot amend away fundamental rights.
  • 24th Amendment (1971): added Article 13(4) and Article 368(3). This reversed Golaknath.

  • Kesavananda Bharati v. State of Kerala (1973): 13 judges, 7:6. Parliament can amend any part, but it cannot destroy the basic structure.

  • Ninth Schedule laws can still be reviewed:

  • Waman Rao v. Union of India (1981): amendments made after 24 April 1973 are open to basic-structure review.
  • I.R. Coelho v. State of Tamil Nadu (2007): nine judges. Any law added to the Ninth Schedule after 24 April 1973 can be struck down if it damages the basic structure, including the rights in Articles 14, 19 and 21.

  • Example: Tamil Nadu's 69% reservation law (1993) was put in the Ninth Schedule by the 76th Amendment (1994). It is open to review under the Coelho test.

  • Reading down in practice:

  • Kedar Nath Singh v. State of Bihar (1962): sedition (s.124A IPC) was upheld, but only for words that incite violence or public disorder.

  • Navtej Singh Johar v. Union of India (2018): s.377 IPC was read down so that it no longer covers consensual sex between adults.

  • Personal law reopened: Shayara Bano v. Union of India (2017) struck down instant triple talaq. The judges took different routes. Narasu was questioned but not formally overruled.

Don't confuse with

  • Article 13 vs Article 32: Article 13 makes a law that breaks a right void. Article 32 is the remedy, the right to go to the Supreme Court to enforce the right.
  • Doctrine of eclipse vs doctrine of severability: eclipse means a whole pre-Constitution law sleeps and can revive if the right is amended. Severability means a bad part is cut out and the rest of the law lives on.
  • Ordinary "law" under Article 13(3) vs constitutional amendment: an ordinance, rule or custom is "law" and can be voided under Article 13. An amendment under Article 368 is not "law" (Article 13(4)). It is tested only against the basic structure.
  • Article 13 vs Article 31B / Ninth Schedule: Article 13 strikes down laws that break rights. Article 31B is an exception that protects listed Acts. After 24 April 1973 even these Acts face basic-structure review (I.R. Coelho, 2007).

Prelims Hooks

  • Article 13(4) was added by the 24th Amendment (1971), not the 1st or the 44th. It reversed Golaknath (1967).
  • Article 13(3) "law" includes ordinances, orders, bye-laws, rules, regulations, notifications, and custom or usage having the force of law.
  • Article 13(1) covers pre-Constitution laws. Article 13(2) bars the State from making laws that "take away or abridge" rights [2].
  • Doctrine–case pairs: eclipse → Bhikaji Narain Dhakras (1955); severability → R.M.D.C. (1957); waiver → Basheshar Nath (1959); reading down → Kedar Nath (1962), Navtej (2018).
  • Trap: the doctrine of eclipse mainly applies to pre-Constitution laws. A post-Constitution law that breaks a right is void from the start (Deep Chand, 1959).
  • Ninth Schedule cut-off date: 24 April 1973 (Waman Rao, 1981; I.R. Coelho, 2007, nine judges).

Mains Points

  • Parliament's power to amend vs the courts as guardians of rights:
  • Golaknath used Article 13 to stop amendments of fundamental rights. The 24th Amendment added Article 13(4) to undo this.

  • Kesavananda (1973) settled the balance. Parliament may amend, but the basic structure stays out of reach. This shows how Article 13 and the basic structure together protect rights.

  • Saved laws and the Ninth Schedule:

  • Articles 31A and 31B were exceptions to Article 13, made to protect land reform.
  • Article 31B was later used for unrelated laws, such as Tamil Nadu's 69% reservation law.

  • I.R. Coelho (2007) brought these laws back under review after 24 April 1973. This limits misuse but keeps space for social reform.

  • Personal law and equality:

  • Narasu Appa Mali (1952) kept uncodified personal law outside Article 13, so discriminatory practices could escape review.
  • Shayara Bano (2017) questioned that view without overruling it. An answer could argue for a clear ruling on whether personal law is "law" under Article 13(3).

Related concepts

Read more

Sources

  1. 1Class 11, Ch 6 "Judiciary" (primary)
  2. 2Article 13: Laws inconsistent with or in derogation of the fundamental rightsconstitutionofindia.net · tier 3