Justiciability of Fundamental

Rights

Article 13

• India Constitution means Supreme.• Article 13 envisages supremacy of

the Constitution.• According to Article 13 of the

constitution “Law inconsistent with or in derogation of the fundamental rights are void”.

Article 13

“13. Laws inconsistent with or 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 such 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 Legislature or other competent authority in the territory of India before the commencement of this constitution and not previously replaced, 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.

Pre Constitutional Laws

Article 13(1) declares that all laws in force in the territory of India

immediately before the commencement of the Indian

Constitution shall be void to the extent to which they are

inconsistent with fundamental rights under Part III of the

Constitution.

Post Constitutional Laws

• Article 13(2) prohibits state to make any law, which takes away or abridges rights conferred by

part III of the constitution.• If state makes such a law, it becomes ultra vires and void to the extent of the contravention.

Law and Laws in force

• According to article 13(1)(a) the term law includes ‘any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of Law.

• However, it was held that personal law such as Hindu Law or Muslim law are not covered by the term ‘law’ under Article 13

• (State of Bombay v. Narayan, AIR 1952 Bom.84)

• The expression ‘laws in force’ under article 13(3)(b) includes ‘laws passed or made by a legislature or other competent authority in the territory of India before the commencement of the constitution not previously repealed.

• It includes customs and usages and also the laws passed by the British Parliament and applicable to India like the Fugitive Offenders’ Act 1881.

In view of the provisions enshrined in Article 13 of the constitution

the following doctrines have been formulated:

1. Doctrine of Severability2. Doctrine of Eclipse

3. Doctrine of Waiver

Doctrine of Severability

• Meaning “ separation”.• Purpose of Article 13 of the Indian

Constitution, it means “to separate the valid portion of the law from the invalid provisions”.

• The main object of the doctrine is to retain the act or legislation in force by discarding/ deleting the void provisions.

• Article 13(1) of the constitution declares that “all laws in force in the territory of India, immediately before the commencement of this constitution, which are inconsistent with the fundamental rights under Part-III, shall be void to the extent of such inconsistency”.

• The part of the statute inconsistent with Part-III alone shall be declared void.

A.K.Gopalan v. State of Madras.

AIR 1950 SC 27-1950 SCJ 174The supreme court struck down Sec.14 of the Preventive Detection Act 1950 on the

ground that it is violative of the fundamental rights guaranteed under

article 22 of the constitution.The court separated that section from the

impugned act and held the remaining part of the impugned act remains

unaffected.

State of Bombay v. F.N. Balsara AIR 1951 SC 318

The supreme court held that though section 8 of the bombay prohibition

act 1949 were ultra vires for infringement of the fundamental rights, the rest of the act would

continue.

Minerva Mills Ltd v. Union of India

AIR 1980 SC 1789The supreme court struck down

sections 4 and 55 of the constitution (42nd Amendment) act 1976 as ultra vires i.e beyond the amending power of the parliament. These two sections were declared void and severed from the act so as to make the remaining part of the act constitutionally valid.

Doctrine of Eclipse

• “to hide wholly or in part” or “throwing into the shade”

• Aims to validate a statute, which remains dormant as it over-shadowed by the rights.

• Based on the principle that a law, which violates fundamental right is not nullity or void ab intio but becomes only unenforceable.

• Such law shall be wiped out totally from the statute book.

• According to article 13 (1) of the Indian Constitution, “all laws in force of territory of India, immediately before the commencement of the constitution, which are inconsistent with the fundamental right under part-III shall be void to the extent of such inconsistency.

• The statute which id found inconsistency is declared void. i.e. dormant not dead.

• The inconsistency of such statute can be removed by an amendment to that effect so that the statute becomes valid and enforceable.

Bhikaji Narain Dhakras v. state of M.P

AIR 1955 SC 781The supreme court held that any

existing law inconsistent with fundamental right becomes inoperative from the date of

Constitution is not totally dead. It was dormant.

Doctrine of Waiver

The voluntary relinquishment or abandonment of existing legal

right or privilege.

Basheshar Nath v. Commissioner of Income Tax

AIR 1959 SC 149Basheshar Nath, the petitioner in the instant case

was alleged, to have concealed huge amount of income. The case was referred to Income Tax

Investigation Commissioner under Section 5(1) of the taxation of Income act 1947 and was found to

be concealed the income of rs.4,47,915/- The petitioner accepted to pay rs.3,50,000/- by the

way of installments for rs.5000/- per month and an agreement to that effect was made in May

1954 under section 8A of the act.

Muthaiah v I.T.Commissioner

• AIR 1956 SC 269 held that section 5(1) of the act was Ultra vires of Article 14 of the constitution . Then the petitioner challenged the agreement under section 8 A with investigation commission and stopped to pay the further installments.

• The respondents on the other hand contended that the petitioner, by voluntarily entering into an agreement had waived his fundamental right guaranteed under Article 14.

• The supreme court rejected the contention of the respondents and held that fundamental rights, could not be waived.

Whether an amendment of the constitution amounts to ‘law’ under

article 13(2)

Shankari Prasad v. Union of India

AIR 1951 SC 458The supreme court held that the word law

in article 13(2) did not include the law/ amendment made by the Parliament

under Article 368.The above decision was ruled out by the

supreme court in Golaknath v. state of Punjab, AIR 1967 SC 1643

The decision resulted in certain problems.

Finally the supreme court in Kesavananda Bharati AIR 1973 SC 146 upheld the validity of

the constitution act 1971 and over ruled the decision of Golaknath’s case.