Article 13

1. Constitutional purpose and structure

Article 13 translates the supremacy of Fundamental Rights into a rule governing the validity of law. Legislative competence alone does not make a statute constitutionally valid: legislation must also respect Part III, subject to applicable constitutional exceptions. The provision therefore prevents ordinary law from overriding constitutional guarantees. It is a central textual foundation of judicial review, although judicial review also extends to questions such as legislative competence and compliance with other constitutional limitations.

Article 13(1) addresses laws in force in Indian territory immediately before the Constitution commenced. Such laws become void to the extent that they conflict with Part III. This must be read with Article 372, which generally continued existing laws, subject to the Constitution. Independence and constitutional commencement did not automatically erase the inherited legal system; Article 13 filtered that continuing system through Fundamental Rights.

Article 13(2) imposes a prospective prohibition: the State shall not make any law taking away or abridging rights conferred by Part III. Any law made in contravention is void to the extent of the contravention. “State” is understood through Article 12 and is not confined to Parliament. State legislatures and authorities exercising legally conferred rule-making powers must also comply. Articles 32 and 226 provide important routes for enforcing these limitations.

• Article 13(1): scrutiny of pre-Constitution laws.
• Article 13(2): prohibition against rights-infringing new laws.
• Article 13(3): inclusive definitions of law and laws in force.
• Article 13(4): exclusion of Article 368 amendments from Article 13.

2. What counts as law under Article 13?

Article 13(3)(a) uses an inclusive definition rather than a closed list. Law includes an ordinance, order, bye-law, rule, regulation, notification, and a custom or usage having the force of law in Indian territory. Thus, rights review is not restricted to Acts passed by legislatures. An ordinance promulgated by the President or a Governor, municipal bye-laws and statutory service rules can face constitutional scrutiny. Delegated legislation must conform both to its parent statute and to the Constitution.

A custom does not become law merely because it is socially widespread. The relevant question is whether it has the force of law. Conversely, the absence of a legislative enactment does not automatically exclude a legally enforceable custom from Article 13. Administrative action that is not itself “law” may nevertheless be challenged for violating Fundamental Rights; Article 13 should not be mistaken for the sole route to constitutional accountability.

Article 13(3)(b) clarifies that laws in force include laws passed or made before constitutional commencement by a competent legislature or authority and not previously repealed. They may qualify even if they were not then operating at all, or in particular areas. Uncodified personal law presents a contested boundary. State of Bombay v. Narasu Appa Mali, decided by the Bombay High Court in 1952, treated uncodified personal law as outside Article 13. Its approach remains debated; codified personal-law legislation is subject to constitutional scrutiny. Avoid the sweeping claim that every personal-law rule is either conclusively included or conclusively excluded.

3. Severability, eclipse and prospective operation

The doctrine of severability follows from the expression “to the extent” of inconsistency or contravention. If an unconstitutional provision can be separated from the rest, the valid remainder may survive. Courts consider whether the remaining provisions are workable and whether the legislature would have enacted them independently. If valid and invalid parts are inseparably connected, invalidity may affect the wider enactment. R.M.D. Chamarbaugwalla v. Union of India (1957) is a leading authority on these tests.

The doctrine of eclipse classically explains the position of a pre-Constitution law that conflicts with a subsequently operative Fundamental Right. The law is overshadowed and becomes unenforceable against those protected by the right, rather than being erased for every purpose. If the constitutional obstruction is removed, it can revive without fresh enactment. In Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955), the Court applied this reasoning to motor-transport legislation after the First Amendment altered Article 19(6).

Article 13(1) is prospective in operation. In Keshavan Madhava Menon v. State of Bombay (1951), the Supreme Court held that the arrival of Fundamental Rights did not retrospectively invalidate legal consequences of acts done before the Constitution. Distinguish this from “prospective overruling”, a judicial technique concerning the temporal effect of a court's ruling. Also avoid saying that every unconstitutional law is wholly nonexistent: invalidity can depend on the affected provision, protected person and relevant period. For example, Article 19 protects citizens, unlike Article 14, which protects persons.

4. Constitutional amendments and the basic structure

Whether a constitutional amendment is “law” under Article 13 generated a major constitutional controversy. In Shankari Prasad v. Union of India (1951), and later Sajjan Singh v. State of Rajasthan (1965), the Supreme Court distinguished constituent power from ordinary legislative power and held that amendments were not law within Article 13(2). In I.C. Golak Nath v. State of Punjab (1967), the Court reversed that position and held that Parliament could not amend Fundamental Rights so as to take them away or abridge them, applying prospective overruling.

The Twenty-fourth Amendment Act, 1971 inserted Article 13(4) and Article 368(3). These provisions expressly exclude constitutional amendments made under Article 368 from Article 13. The amendment also affirmed Parliament's constituent power to amend the Constitution. However, this exclusion is not a licence for unlimited constitutional change.

In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court upheld Parliament's power to amend any part of the Constitution, including Fundamental Rights, but prohibited destruction of its basic structure. Minerva Mills v. Union of India (1980) reaffirmed limited amending power and the importance of harmony between Fundamental Rights and Directive Principles. The exam distinction is therefore crucial: ordinary laws are tested against applicable constitutional provisions, while constitutional amendments additionally face the distinctive limitation of the basic-structure doctrine.

5. Judicial review, constitutional protection and examination traps

Article 13 operates within a constitutional framework containing specific protections and exceptions. Articles 31A, 31B and 31C protect defined categories of laws from specified challenges, subject to their constitutional scope and judicial interpretation. Inclusion in the Ninth Schedule is not an absolute shield. In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court held that Ninth Schedule insertions made after 24 April 1973 are reviewable where their effect damages the basic structure through infringement of relevant Fundamental Rights.

For problem-solving, identify the impugned measure, its date, the particular right and the persons entitled to invoke that right. Then consider any constitutional protection and whether the offending portion can be severed. Fundamental Rights cannot generally be waived so as to validate an unconstitutional measure, as illustrated by Basheshar Nath v. Commissioner of Income Tax (1959). Finally, distinguish constitutional invalidation from legislative repeal: Article 13 restricts enforceability because of constitutional inconsistency, whereas repeal removes a law through legislative action.

• Not every restriction violates a Fundamental Right: constitutionally permissible restrictions remain valid.
• Not every defect requires the entire statute to fall.
• Exclusion from Article 13 does not make constitutional amendments immune from judicial review.

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