Art. 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.

• Pre constitutional laws

• Inconsistency with fundamental
rights
• Shall be declared void
• To that extent of such inconsistency
• By the court

Fundamental rights exist from the date on

which the Indian constitution came into force
i.e on 26th January 1950 hence fundamental
rights became operative from this date only. •
Pre-constitutional laws - the laws before the
existence of the constitution must prove their
compatibility with the fundamental rights • only
then these laws would be considered to
be valid otherwise they would be declared to
be void.

Doctrine of severability
• If some parts of the statue/Act are inconsistent
with that of the fundamental rights, then the
whole statue would not be
declared to be void but that particular clause
would be treated to be void by the court of
law.
• all the pre-existing constitutional
laws are to be filtered out.

A.K Gopalan v. State of Madras, air 1950 •

Section 14 of Preventive detention Act,1950
was challenged • Section 14 says that if any
person is being detained under this Act then he
or she may not disclose the grounds of his or
her detention in court of law. • This particular
statement is inconsistent with that
of fundamental rights as per Article 22 of the
Indian constitution • thus if we do apply the
doctrine of severability here so the whole act
(preventive detention act,1950) would not be
declared as void but only section 14 of the act
would be declared as void as it is inconsistent
with the fundamental rights.

Doctrine of Eclipse
• If some laws are violating
fundamental rights , they would not be declared
void ab-initio but would be unenforceable for a
time being i.e such laws are over-shadowed by
the fundamental rights, thus in the case of
non-citizens of
India the law may be applicable. Severability
doctrine tries to make laws valid.
• This one tries to make inconsistent
laws dormant

Bhikaji v St. of M.P. AIR 1955

• Berar Motor Vehicles Act 1947 challenged
• Authorized state government to monopolize
motor business When enacted valid After 1950
became invalid Art. 19(1)(g).In 1951, art 19
amended and clause (6) and authorised
monopoly of government

Applicability of doctrine of eclipse to

post-constitutional laws: In Sagir Ahmed v. State
of Uttar Pradesh, AIR 1954 SC 728 the
Supreme Court held that the doctrine of eclipse
is only applicable to pre-constitutional laws and
not to post-constitutional laws. The court
reasoned that the post-constitutional laws, if
they contravene Part III, are void ab initio and a
subsequent constitutional amendment cannot
revive them. On the other hand the voidness of
pre-constitutional law is not from inception but
only from the date of commencement of the
Constitution. Supreme Court distinguished
between Article 13(1) and Article 13(2) and held
that Article 13(2) applies to the
post-constitutional laws and prohibits the State
from making a law which infringes a
fundamental right while Article 13(1) applies to
pre-constitutional law and contains to such
prohibition. This view was endorsed by the court
in Deep Chand v. State of U.P. AIR 1959 SC
648 and Mahendra Lal Jain v. State of U.P. AIR
1963 SC 1019.

Subsequently in State of Gujarat v. Ambica

Mills, AIR 1974 SC 1300 the court modified its
view expressed in Deep Chand's case,
Mahendra Lal Jain's case and Sagir Ahmed's
case. The court held that post -constitutional
laws, which are inconsistent with fundamental
rights, are not void ab initio for all purposes.
Void under Article 13(2) means void against
persons whose fundamental right has been
taken away. If a post-constitutional law takes
away right conferred by Article 19 then such law
will be void only with respect to citizens because
rights under Article 19 are given only to citizens.
Such law will validly operate with respect to
non-citizens. Since such laws are not void a
intio for all purposes the doctrine of eclipse can
be applied to post-constitutional laws as well.

In other words, the court held that if the law

contravenes fundamental right which is limited
to citizens only, it will continue to operate with
respect to non-citizens. Court clearly held that
such law cannot be revived with respect to
citizens merely by an amendment of
fundamental right. It is because Article 13(2)
affects the competency of legislature to enact
laws which takes away fundamental rights. It
means that the law will have to be re-enacted
after the amendment of fundamental right if it is
desired to make it opera-tive. However,
Supreme Court in I. Jagannath v. Authorized
Officer, AIR 1972 SC 425 held that if an Act is
declared unconstitutional on the pretext of
Article 13(2), it can be revived only when it is put
in Ninth Schedule because Article 31B cures the
defect of the Act with retrospective effect. Later,
the Supreme Court in Dulare Lodh v. Ird
Additional District Judge, Kanpur, AIR 1984 SC
1260 applied the doctrine of eclipse in
post-constitutional law against 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.

(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. • talks about the post
constitutional laws it says that once the
constitution is framed and
came in effect then any of the state may not
make laws that takes away or abridges the
fundamental rights of an individual • and if done
so then it would be void till the extent
of contravention.

(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;
but there are two exceptions to the same, firstly
the administrative and the executive orders are
being covered under article 13 but
if their nature is just to give instructions or
guidelines then they would not be covered
under article 13. Second exception is the
personal laws which are not being covered
under article 13 • Ordinances under 123 and
213 • personal laws excluded
(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.

laws in force” includes

Laws passed or made by a Legislature or other
competent authority in the territory of India
ncludes administrative orders by executive
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.

1[(4) Nothing in this article shall apply to any

amendment of this Constitution made under
article 368.]

__________________
1. Ins. by the Constitution (Twenty-fourth
Amendment) Act, 1971, s.2.

• Upholds the supremacy of Indian

constitution • Paves the way to judicial review. •
Enables us to review the pre-constitutional and
existing laws • Power of judiciary is considered
to be the supreme in guarding and enforcing the
fundamental rights guaranteed in the Indian
constitution under part III. • Is a restriction
/check on parliament and state legislatures. •
Rights and freedom of people get the protection
from the arbitrary invasions of the state.

Constitutional amendment a 'law' under

Article 13 (2).-

The question whether the word 'law' in clause

(2) of Article 13 also includes a Constitutional
amendment' was for the first time considered by
the Supreme Court in Shankari Prasad v. Union
of India.!! The Court held that the word law' in
clause (2) did not include law made by
Parliament under Article 368. The word 'law' in
Article 13 must be taken to mean rules or
regulations made in exercise of ordinary
legislative power and not amendments to the
Constitution made in exercise of Constitutional
power and, therefore, Article 13 (2) did not affect
amendments made under Article 368. This
interpretation of Shankari Prasad's case was
followed by the majority in Sajjan Singh v. Statt
of Rajasthan. I2 But in Golak Nath v. State of
Punjab, 13 the Supreme Court overruled its
decision in the aforesaid cases, and held that
the word 'law' in Article 13 (2) included every
branch of law, statutory, Constitutional, etc., and
hence, if an amendment to the Constitution took
away or abridged fundamental right of citizens,
the amendment would be declared void.
In order to remove the difficulty created by the
Supreme Court's decision in Golak Nath's case
the Constitution (24th Amendment) Act, 1971
was enacted. By this amendment a new clause
(4) was added to Article 13 of the Constitution
which makes it clear that Constitutional
amendments passed under Article 368 shall not
be considered as
'law' within the meaning of Article 13 and,
therefore, cannot be challenged as infringing the
provisions of Part III of the Constitution. The
validity of the Constitution (24th Amendment)
Act, 1971 was considered by the Supreme
Court in Kesavananda Bharati case. I4 The
Court overruled the Golak Nath case and upheld
the validity of the said amendment.