Constitution of Bharat: Article 13: Part 3

 

Here's a provision-wise interpretation of Article 13 of the Constitution of India, referencing key judicial decisions:

Article 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."

• Bhikaji Narain Dhakras v. State of M.P. (1955): This case introduced the "Doctrine of Eclipse". The court held that pre-constitutional laws, which were inconsistent with fundamental rights, were not void ab initio but were only eclipsed until the inconsistency was removed, e.g., by an amendment to the Constitution or to the law itself.
• Keshavan Madhava Menon v. State of Bombay (1951): This judgment clarified that pre-constitutional laws would be void only to the extent of their inconsistency with fundamental rights but would remain enforceable for non-citizens if they did not violate rights applicable to citizens.

"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."

• A.K. Gopalan v. State of Madras (1950): Here, the doctrine of severability was developed where only the part of the law violating fundamental rights would be declared void, not the entire law, if the remaining parts were capable of standing alone.
• Golak Nath v. State of Punjab (1967): This case initially held that constitutional amendments were also 'laws' under Article 13(2) and thus could not take away or abridge fundamental rights. This was a significant interpretation, though later modified.
• Kesavananda Bharati v. State of Kerala (1973): This landmark judgment introduced the "Basic Structure Doctrine", modifying the Golak Nath ruling by allowing for amendments but not those that change the Constitution's basic structure, thereby indirectly impacting how Article 13(2) is viewed concerning amendments.
• Minerva Mills Ltd. v. Union of India (1980): The Supreme Court struck down clauses of the 42nd Amendment which had attempted to limit judicial review, affirming the judiciary's role in protecting fundamental rights under Article 13(2).

"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.
• State of Gujarat v. Shri Ambica Mills Ltd. (1974): This case discussed the scope of 'law' under Article 13(3)(a), clarifying that even customs and usages, when having the force of law, must conform to fundamental rights.
• Narasu Appa Mali v. State of Bombay (1952): This case dealt with whether personal laws could be considered "laws" under Article 13. It was held that personal laws did not fall within this definition, sparking debate and influencing later judicial interpretations.
• Shayara Bano v. Union of India (2017): In the context of Triple Talaq, this judgment revisited the issue of personal laws under Article 13, with differing judicial opinions on whether statutory versions of personal law could be scrutinized under Article 13.

"4. Nothing in this article shall apply to any amendment of this Constitution made under article 368."

• This clause was added by the 24th Amendment Act, 1971, in response to Golak Nath, and was upheld in Kesavananda Bharati, although with the caveat of the Basic Structure Doctrine.

These cases illustrate how judicial interpretations have shaped the understanding and application of Article 13, ensuring the protection of fundamental rights while navigating the complexities of constitutional amendments and legislative enactments.