Article 13 – Fundamental Rights – Polity – Module 4

Article 13: Laws inconsistent with or in derogation of the fundamental rights.— (1) All laws in force in the territory of India immediately before the...

Article 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

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

  • No law can be considered as violate of FR except for in the situation of security , sovereignty of the country, public order, friendly relationship with other country, interest of ST’s, well being of women, children and weaker sections of society.
  • By this provision judiciary has been given the power of judicial review.

Judicial review

  • Protecting the constitution from dogmatic indoctrination of the party in the power.
  • For protection of fundamental rights.
  • For protection of harmony in the constitution.
  • For the legitimization of a particular act for the subsequent incident.
  • For the protection of division of powers.
  • Generally understood Basic Structure is the provisions of the Constitution whose amendment may necessitate or trigger amendment in the other provisions of the constitution and if they accomplished, the orientation of the Constitution may be affected.
  • In case Sankari Prasad Vs Union of India, it was explained that Article 368 does not have the restriction of article 13. It is only with regards to ordinary legislative power of the Parliament, not with regards to the constituent power of the Parliament.
  • In case Golaknath Vs State Of Punjab, overruling the earlier provision it considered that fundamental rights are pure in nature and beyond the scope of the amendment.
  • Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void. In this case reversing the earlier stand Judiciary considered that FRs are amendable but the basic structure of the Constitution cannot be changed because the constitution uses the word ‘amend’ it does not use the word ‘alter’. Amendment is changing without changing the outline, Alteration is changing the outline.

Basic Structure by Nani Palkhivala:

  • Supremacy of constitution.
  • Sovereignty of the country.
  • State with no state religion.
  • Free and independent judiciary.
  • There is a basic structure.
  • Dual structure of Union and State.
  • The balance between legislature, executive and judiciary.
  • Democratic way of life with justice, liberty and equality.
  • Integrity of the country.
  • Republican form of the government.
  • The jurist have interpreted that basic structure May also include dignity of individual free and fair election doctrine of equality separation of powers balance between DPSP and FRs Social Justice etc can also be included as basic structure.

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