ELUCIDATION OF ARTICLE 13 & DOCTRINES ALIGNED WITH IT

By:

Rajat Nischal 1

Article 13, PART III, Constitution of India

1
Pursuing 3rd Bachelor in Law & Bachelor in Arts {B.A. LL.B.}
Email: rajat.student@slsnagpur,edu.in
Formerly, when the drafting committee was endeavouring its efforts to make the constitution
of the largest democracy, it had numerous exemplary nation which adopted the democratic
and humanitarian concept. Our founding fathers endeavored to formulate something which
reflects multiple things like the rights of the minority, principles of UDHR, our struggle for
independence, and many other things simultaneously. Henceforth, while making the
constitution, PART III OF the constitution was discussed for 38 days.

PART III is conferred as the basic structure of the constitution and hereafter; it is enforceable
and truly obligatory to follow. There were numerous functional legislations before the
constitution was drafted. Since it was essential for our forefathers to rectify and bring those
already functional laws in line with the fundamental rights, a filter to channelize the same
was required.

Article 13 (1) extensively deals with pre-constitutional laws, it enshrines that those laws
(existing prior to the constitution of 1950) which are consistent with fundamental rights shall
remain valid otherwise, it shall be titled as unconstitutional vis-a-vis null and void.

An illustration for better understanding;

Education Act of 1930 had numerous clauses dealing with various specifications and subject
matters. Among all other provisions, there was this one clause that stated that kids from a
certain caste shall not be admitted to the school.

Article 13 (1) adjudged this provision as discriminatory to the basic structure of the
constitution, and hence, it was declared void as per law.

Article 13 (2) crucially deals with the post-constitutional laws. It narrates that the state ‘shall
not make any law’ which abridges the fundamental rights of the people of India. Henceforth,
this provision unquestionably prohibits the making of any law by the state which takes away
or abridges rights, conferred by PART III of eth constitution. If in any case or scenario, such
law is made, it is plainly declared as null and void.

Article 13 (3) elucidates that 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
include laws passed or made by the Legislature or other competent authority in the territory
of India before the commencement of this Constitution and not previously repealed. This
provision also grants few exceptions;
Firstly, general administrative and executive order will be included but if the said is a
guideline or is made for instructional purpose, it won’t be governed in this Article. Secondly,
any person shall also be not governed under the preview of this Article.

A very tricky question which is generally posed towards article 13 is that, does article 13
encompasses and govern the amendments too?

If we dig deeper, this question directs us to analyze and find out which organ possesses the
highest supremacy, judiciary, or the legislature?

In the Srikant Prasad Case, it was blatantly declared that the meaning of law in our statute
does not include the constitutional amendments.

Notwithstanding to above, a significant judgment of I.C. Golaknath and Ors. vs State of

Since after this judgment, the powers of the judiciary were sensationally enhanced. The
parliament with the 24th Amendment Act inserted Article 13 (4) into the constitution of India.
Article 13 (4) enshrined that if any amendment is produced by using Article 368, it shall not
be challenged under the umbrella of Article 13. Finally, in a momentous judgment of
Kesavananda Bharati v. State of Kerala, it was clearly held that amendments to the
constitution cannot be challenged under Article 13 even if they abridge the fundamental
rights of eth people.
 Doctrines Under the Article 13

There are two doctrines elucidated with this provision; Doctrine of Severability & Doctrine
of Eclipse.

The foremost doctrine is the doctrine of severability (or separability), which specifically
means to separate. Article 13 is a foremost provision that gives teeth to the fundamental
rights and makes them justifiable. The doctrine bolters that authorities must use a filter for all
pre-constitutional laws, i.e., a filter to analyze that does it respects fundamental rights or not.

All the legislations which pass successfully through this filter are considered valid. The laws
(as a whole or a specific provision of that act) which are found contrary to PART III shall be
separated.

A very important case for the doctrine of severability is A.K.Gopalan v. State of Madras. In
this momentous case, section 14 of the Preventive Detention Act was challenged. As per
section 14, if any individual is detained under this act, he cannot disclose grounds of
detention in court.

After applying the filter as defined under the doctrine of severability, section 14 of the act
was found contrary, hence, adjudged null and void.

This postulate shall be noted that because of the reason that it was only section 14 which was
inconsistent with the fundamental rights, the honorable authorities acted judiciously and
separated only that specific provision that stood contrary to the fundamental rights.

The other doctrine of Article 13 is the Doctrine of eclipse. Eclipse generally means to shadow
or hide something.

In the case of Bhikhaji v. State of M.P., Berar Motor Vehicle Act was challenged. Certain
sections in this Act empowered the state government to transfer the ownership of all the
motor business to itself. Since these actions were violative of Article 19, a predominant filter
sifted out the whole Act and subtracted all those sections which were inconsistent with
fundamental rights. Nevertheless later, by rolling out few amendments, the government
authorized to monopolize certain businesses.
Now applying the doctrine of eclipse, since there is a possibility that the currently amended
provision may come into force in the future, it is not removed or dumped but rather, it
becomes inoperative and hides behind the dominance of PART III of eth constitution.

As per the doctrine of eclipse, since all the inconsistent provisions in this case scenario were
overshadowed by the dominance of fundamental rights and because of the fact that PART III
prevailed; all these sections became inoperative.

There were a lot of twists in Article 13 (2) which were settled in State of Gujarat v.Ambica
Mills.