Article 13

ARTICLE - 13
- - SHIVANI SHARMA
- - ASSISTANT PROFESSOR
- - SARDAR PATEL SUBHARTI INSTITUTE OF LAW

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

ARTICLE- 13
 (3) In this article, unless the context otherwise
requires law includes any Ordinance, order, bye
law, rule, regulation, notification, custom or
usages having in the territory of India the force
of law; 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previously repealed, notwithstanding that any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 Right of Equality

PRE-
CONSTITUTION
ALLAWS
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-
CONSTITUTION
ALLAWS
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.

LAWANDLAW
INFORCE
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

LAWANDLAW
INFORCE
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constitution not previously repealed.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.

WHETHER
AMENDMENT
AMOUNTSTO
‘LAW’
SHANKARI PRASAD CASE
SAJJAN SINGH CASE
GOLAKNATH CASE
KESHAVANAND BHARATI
CASE
MINERVVA MILLS CASE
KESHAVMADHAV MENON
CASE

SHANKARI
PRASADCASE
 The 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.

DOCTRINES
In view of the provisions
enshrined in Article 13 of the
constitution the following
doctrines have been
formulated:
1. Doctrine of Severability
2. Doctrine of Eclipse
3. Doctrine of Waiver

DOCTRINEOF
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.

CONTINUE…
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.

CASELAWS
R.M.D.C. V UNION OF
INDIA, 1957
KIHOTA HOLOHAN V
ZACHILHU, 1993
STATE OF BOMBAY V F.N.
BALSARA, 1952
A.K. GOPALAN CASE, 1950
MINERVA MILLS CASE, 1980

A.K.GOPALAN
CASE
The 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.

F.N.BALSARA
CASR
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.

MINERVAMILLS
CASE
The 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
Constitution. These two sections
were declared void and severed
from the act so as to make the
remaining part of the act
constitutionally valid.

DOCTRINEOF
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.

BHIKAJINARAIN
DHAKRASVSTATE
OFM.P.1955
The 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.
STATE OF GUJARAT V
AMBIKA MILLS, 1974

Article 13

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Article 13