Article 13

CONSTITUTIONAL LAW 1
Questions:
What is the way in which FRs override any laws to the contrary?
What happens to laws declared incompatible with FRs?
What are the general principles used when a Court examines the
constitutionality of a provision?
Can FRs be given up?
What is the Parliament’s power to amend FRs?
Article 13
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.
Keshavan Madhavan Menon v
State of Bombay (1951)
7 Judges. 5:2. Dissent by Fazl Ali joined by Mukherjea.
Articles 372 and 367. Section 6 of the General Clauses Act.
The rule against retrospectivity.
The difference between void ab initio and void to the extent of
inconsistency.

Fazl Ali’s dissent: The difference between repeal and voidness. The
replacement of ‘abrogated’ by ‘void’ by the CA. Anything that has not
been prosecuted to a ‘final judgment’ falls.
The General Clauses Act, 1897
6. Where this Act, or any Central Act or Regulation made after the commencement of this
Act, repeals any enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if the
repealing Act or Regulation had not been passed.
State of Bombay v FN Balsara
(1951)
5 Judges. Unanimous.
The Bombay Prohibition Act, 1949.
The definition of liquor under the Act.
Commending the use of intoxicants and free speech.
The rule of severability: “The real question is whether what remains is
so inextricably bound up with the part declared invalid that what
remains cannot independently survive or as it has sometimes been put,
whether on a fair review of the whole matter it can be assumed that the
legislature would have enacted what survives without enacting the part
that is ultra vires at all.“
General Principles of
Constitutional Interpretation
The Presumption of Constitutionality and the Burden of Proof.

Reading down of statutes.

Harmonious construction.
Bhikaji Narain Dhakras v State
of MP (1955)
5 Judges. Unanimous.
Constitutional validity of the CP and Berar Motor Vehicles (Amendment)
Act, 1947 providing for nationalization of bus services is a State through (a)
cancellation of licences, (b) fixing of fares, (c) handing over of bus routes to
the State Transport Corporation.
Pre-Amendment Article 19(6): "(6) Nothing in sub-clause (g) of the said
clause shall affect the operation of any existing law in so far as it imposes, or
prevent the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise of the right conferred
by the said sub-clause, and, in particular, nothing in the said sub-clause shall
affect the operation of any existing law in so far as it prescribes or
empowers any authority to prescribe, or prevent the State from making any
law prescribing or empowering any authority to prescribe, the professional
or technical qualification necessary for practising any profession or carrying
on any occupation, trade or business".
Shagir Ahmad’s case (1954).
Constitution (First Amendment) Act, 1951.
Keshava Madhava Menon’s case and its understanding of the effect of
Article 13.
The doctrine of eclipse and the doctrine of revival.
The effects of the First Amendment.
The period of 26 Jan 1950 – 18 June 1951.
Article 13(1) by reason of its language cannot be read as having
obliterated the entire operation of the inconsistent law or having wiped
it out altogether from the statute book. Such law existed for all past
transactions and for enforcement of rights and liabilities accrued before
the date of the Constitution, as was held in Keshavan Madhava Menon's
case. The law continued in force, even after the commencement of the
Constitution, with respect to persons who were not citizens and could
not claim the fundamental right. In short, article 13(1) had the effect of
nullifying or rendering the existing law which had become inconsistent
with article 19(1)(g) read with clause (6) as it then stood ineffectual,
nugatory and devoid of any legal force or binding effect only with
respect to the exercise of the fundamental right on and after the date of
the commencement of the Constitution. Therefore, between the 26th
January, 1950 and the 18th June, 1951 the impugned Act could not
stand in the way of the exercise of the fundamental right of a citizen
under article 19(1)(g). The true position is that the impugned law
became, as it were, eclipsed, for the time being, by the fundamental
right. The effect of the Constitution (First Amendment) Act, 1951 was to
remove the shadow and to make the impugned Act free from all
blemish or infirmity.
The State of Gujarat v Ambica
Mills (1974)
5 Judges. Unanimous.

Article 19(1)(f).

The meaning of ‘void’ in Article 13(1) and 13(2).

The application of the doctrine of eclipse to future laws.

Basheshar Nath v Commissioner
of Income Tax (1958)
5 Judges. 4 opinions. Minor differences regarding the extent to which
FRs can be waived. Unanimous on the question as to the validity of the
settlement here.

Facts: Deals with the validity of a settlement made under section 8A of

the Taxation on Income (Investigation Commission) Act, 1947. Section 5
of the Act. Settlement application made on 20 May 1954, and the
judgment in the Suraj Mall Mohta case delivered on 28 May 1954.
Waiver of Fundamental Rights.
The difference between non-exercise and waiver of a right.
Das, CJ and Kapur
Article 14 specifically.
◦ The nature of Article 14.
◦ Article 13 and explicit restrictions.

‘It seems to us absolutely clear, on the language of Article 14 that it is a

command issued by the Constitution to the State as a matter of public
policy with a view to implement its object of ensuring the equality of
status and opportunity which every welfare State, such as India, is by
her Constitution expected to do and no person can, by any act or
conduct, relieve the State of the solemn obligation imposed on it by the
Constitution. Whatever breach of other fundamental right a person or a
citizen may or may not waive, he cannot certainly give up or waive a
breach of the fundamental right that is indirectly conferred on him by
this constitutional mandate directed to the State.’
Subba Rao and Bhagwati
The higher status of FRs.
‘When one realizes the unequal positions occupied by the State and the
private citizen, particularly in India where illiteracy is rampant, it is easy
to visualize that in a conflict between the State and a citizen, the latter
may, by fear of force or hope of preferment, give up his right… A large
majority of our people are economically poor, educationally backward
and politically not yet conscious of their rights. Individually or even
collectively, they cannot be pitted against the State organizations and
institutions, nor can they meet them on equal terms. In such
circumstances, it is the duty of this Court to protect their rights against
themselves. I have, therefore, no hesitation in holding that the
fundamental rights created by the Constitution are transcendental in
nature, conceived and enacted in national and public interest, and
therefore cannot be waived.’
Article 13(3)
(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 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.