3/17/25, 6:40 PM Article 13 in Constitution of India

Free feature
s Premium feature
s Case remova
l

Search
Warning on translation Get this document in PDF Print it on a file/printer
Select Language
Powered by Translate

[Cites 12, Cited by 3919] [Constitution]

User
Queries Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a
new judgment matches article 13 your query (Query Alert Service). Try out our Premium Member Services -- Sign
up today and get free trial for one month. article 368
constitution article 13
Constitution Article
Article 12 in Constitution of India

12. Definition
In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and
the Government and the Legislature of each of the States and all local or other authorities within the territory of India
or under the control of the Government of India.

Editorial Comment - This article provides the definition of the “state” in India and the various organs which come
under it. This definition of the State under Article 12 is applicable only for Part 3 (Fundamental Rights) and Part 4
(Directive Principles of State Policy) of the Constitution of India.
article 13(2)

Article 13 in Constitution of India article 2

bye laws
13. Laws inconsistent with or in derogation of the fundamental rights
waive
(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 Pan, 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 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previously repealed, notwithstanding that any such law or any part thereof may not be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.

[Editorial comment - Article 13 (1) discusses the laws which were made before the
commencement of the Constitution (26 January 1950) and Article 13 (2) delves about the
laws which are made after the Constitution is in place.

Article 13 (1) states that all the laws which are made before the Constitution will be void as
long as they are violating the provisions of the Fundamental Rights. It further states that only
that part of the law which will be void which is against the provisions of the constitution and
not the whole law itself. This guarantee is against the existing laws and future laws and not
to the laws which are made before the commencement of the constitution.

Article 13(2) states that all the laws which are made after the commencement of the
Constitution are void to the extent of the infringement of the Fundamental Rights given in
part 3 of the Constitution.

The ‘Doctrine of Eclipse’ asserts that all the Pre-Constitutional laws which are against the
fundamental rights of the Indian Constitution will become dormant and not dead. They will
remain dormant as long as the state does not amend the law and its infringing nature. So
this doctrine applies to only Article 13(1) of the Indian Constitution.

In Keshavan Madhvan Menon v. State of Bombay, the court said that the law which is
infringing the rights of the citizens after the commencement of the constitution is ‘void ab
initio’ for the citizens of the country but it will remain enforceable for the non-citizens and
companies. The doctrine of Eclipse makes the law unenforceable but it doesn’t make the law
void ab initio.

The ‘doctrine of Waiver’ means that a person who is receiving a right or a privilege can waive
that right according to his will. Once the right is waived by the individual then they cannot
claim it back. In Behram v. State of Bombay, it was decided by the court that the rights which
are given in part 3 of the constitution cannot be waived by an individual.

The ‘Doctrine of Separability’ means that if a part of a law is against the provisions of the
constitution then only that offending part will be declared as void and not the whole statute.
This doctrine is applied in both Article 13 (1) and Article 13 (2) of the Indian Constitution. In
R.M.D.C. v. Union of India, AIR 1957, Supreme Court has given some rules relating to this
doctrine:

“1. It is important to understand the intention of the legislature before using this doctrine.

2.When separation of invalid part of the statute is very difficult then the whole law will be
held as invalid.

3.If after deleting the invalid part, the valid part has no value left to it then the whole act will
be rejected in itsentirety.”

Article 13(3) (a) defines “Law”. According to this section, Law includes any ordinance, order,
bye-Law, rule, regulation, notification, custom or usages. This definition of law is given a wide
meaning so that it can be added to a wide variety of state instrumentalities.

In Ahmedabad Women Action Group v. Union of India, AIR 1977, Supreme Court said that
personal laws (Hindu Law, Muslim Law, and Christian Law) are not part of the definition of
Law under Article 13. The Bye-Laws made by the Cooperative Societies are also not part of
the definition of Law.

There have also been other discussions on whether “Law” includes constitutional
amendments. T his question was first decided in the case of Shankari Prasad v. Union of India
AIR 1951. In that case, the Supreme Court held that the word law under Article 13(2) doesn’t
include a constitutional amendment. This entailed that the Parliament has power to amend
the Fundamental Rights according to their will.

Later in the case of Golak Nath v. State of Punjab, AIR 1967, the Supreme Court overruled
the Shankari Prasad verdict and stated that the word ‘Law’ in Article 13(2) includes the
constitutional amendments. If any constitutional amendment is infringing the Fundamental
rights then that amendment will be void.

To nullify the Golak Nath decision the Parliament passed the 24th Amendment Act, 1971,
wherein parliament added Clause 4 in Article 13 which stated that nothing in Article 13 shall
apply to any amendment of this Constitution made under Article 368.

Later in the case of the Kesavananda Bharati v. the State o f Kerala, AIR 1973, the
constitutionality of the 24th Amendment was held valid. So the present position of the word
“Law” is that a Constitutional Amendment does not include the word. This gives the
Parliament the power to amend the provisions of the Fundamental rights as long as they
align with the basic structure doctrine of the Indian Constitution.

[[Editorial comment-The Constitution (Twenty-Four Amendment) Act, 1971, enables

Parliament to dilute Fundamental Rights through Amendments of the Constitution.Tthe 24th
Amendment was effected to abrogate the Supreme Court ruling in I.C. Golaknath and Ors. vs
State of Punjab and Anrs. The Supreme Court delivered its ruling, by a majority of 6-5 on 27
February 1967. The Court held that an amendment of the Constitution is a legislative
process, and that an amendment under article 368 is "law" within the meaning of article 13
of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental
Right conferred by Part III, it is void. Article 13(2) reads, "The State shall not make any law
which takes away or abridges the right conferred by this Part and any law made in
contravention of this clause shall, to the extent of contravention, be void." The Court also
ruled that Fundamental Rights included in Part III of the Constitution are given a
 "transcendental position" under the Constitution and are kept beyond the reach of
Parliament. The Court also held that the scheme of the Constitution and the nature of the
freedoms it granted incapacitated Parliament from modifying, restricting or impairing
Fundamental Freedoms in Part III Also Refer ]

https://indiankanoon.org/doc/134715/ 2/2