Article 13 of the Indian Constitution deals with the supremacy of the Constitution and voidness of laws inconsistent with fundamental rights. It establishes that pre-constitutional laws that are inconsistent with fundamental rights will be void. It also prohibits the state from making any laws that take away or abridge fundamental rights. The article establishes various doctrines related to severability of valid and invalid parts of laws, eclipse of inconsistent laws, and waiver of fundamental rights. It was debated whether constitutional amendments fall under the definition of "law" in Article 13(2) but the supreme court ultimately held that amendments are not laws under this article.

1. Justiciability
of
Fundamental
Rights
Article 13

2. • India Constitution means Supreme.
• Article 13 envisages supremacy of
the Constitution.
• According to Article 13 of the
constitution “Law inconsistent with
or in derogation of the
fundamentaL rights are void”.

3. Article 13
“13. Laws inconsistent with or 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 such contravention, be void.

4. 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 replaced,
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.

5. Pre Constitutional Laws
Article 13(1) declares that all laws in force in
the territory of India immediately before
the commencement of the Indian
Constitution shall be void to the extent to
which they are inconsistent with
fundamental rights under Part III of the
Constitution.

6. Post Constitutional Laws
• Article 13(2) prohibits state to make any
law, which takes away or abridges rights
conferred by part III of the constitution.
• If state makes such a law, it becomes ultra
vires and void to the extent of the
contravention.

7. Law and Laws in force
• According to article 13(1)(a) the term law
includes „any ordinance, order, bye-law, rule,
regulation, notification, custom or usage
having the force of Law.
• However, it was held that personal law such as
Hindu Law or Muslim law are not covered by
the term „law‟ under Article 13
• (State of Bombay v. Narayan, AIR 1952
Bom.84)

8. • The expression „laws in force‟ under article
13(3)(b) includes „laws passed or made by a
legislature or other competent authority in
the territory of India before the
commencement of the constitution not
previously repealed.
• It includes customs and usages and also the
laws passed by the British Parliament and
applicable to India like the Fugitive
Offenders‟ Act 1881.

9. In view of the provisions enshrined in Article
13 of the constitution the following doctrines
have been formulated:
1. Doctrine of Severability
2. Doctrine of Eclipse
3. Doctrine of Waiver

10. Doctrine of Severability
• Meaning “ separation”.
• Purpose of Article 13 of the Indian
Constitution, it means “to separate the valid
portion of the law from the invalid provisions”.
• The main object of the doctrine is to retain the
act or legislation in force by discarding/
deleting the void provisions.

11. • Article 13(1) of the constitution declares that
“all laws in force in the territory of India,
immediately before the commencement of this
constitution, which are inconsistent with the
fundamental rights under Part-III, shall be void
to the extent of such inconsistency”.
• The part of the statute inconsistent with Part-
III alone shall be declared void.

12. A.K.Gopalan v. State of Madras.
AIR 1950 SC 27-1950 SCJ 174
The supreme court struck down Sec.14 of the
Preventive Detection Act 1950 on the ground
that it is violative of the fundamental rights
guaranteed under article 22 of the constitution.
The court separated that section from the
impugned act and held the remaining part of
the impugned act remains unaffected.

13. State of Bombay v. F.N.
Balsara AIR 1951 SC 318
The supreme court held that though section 8 of
the bombay prohibition act 1949 were ultra
vires for infringement of the fundamental
rights, the rest of the act would continue.

14. Minerva Mills Ltd v. Union of
India
AIR 1980 SC 1789
The supreme court struck down sections 4 and
55 of the constitution (42nd Amendment) act
1976 as ultra vires i.e beyond the amending
power of the parliament. These two sections
were declared void and severed from the act so
as to make the remaining part of the act
constitutionally valid.

15. Doctrine of Eclipse
• “to hide wholly or in part” or “throwing into
the shade”
• Aims to validate a statute, which remains
dormant as it over-shadowed by the rights.
• Based on the principle that a law, which
violates fundamental right is not nullity or void
ab intio but becomes only unenforceable.
• Such law shall be wiped out totally from the
statute book.

16. • According to article 13 (1) of the Indian
Constitution, “all laws in force of territory of
India, immediately before the commencement of
the constitution, which are inconsistent with the
fundamental right under part-III shall be void to
the extent of such inconsistency.
• The statute which id found inconsistency is
declared void. i.e. dormant not dead.
• The inconsistency of such statute can be removed
by an amendment to that effect so that the statute
becomes valid and enforceable.

17. Bhikaji Narain Dhakras v.
state of M.P
AIR 1955 SC 781
The supreme court held that any existing law
inconsistent with fundamental right becomes
inoperative from the date of Constitution is not
totally dead. It was dormant.

18. Doctrine of Waiver
The voluntary relinquishment or
abandonment of existing legal right or
privilege.

19. Basheshar Nath v.
Commissioner of Income Tax
AIR 1959 SC 149
Basheshar Nath, the petitioner in the instant case
was alleged, to have concealed huge amount of
income. The case was referred to Income Tax
Investigation Commissioner under Section 5(1) of
the taxation of Income act 1947 and was found to
be concealed the income of rs.4,47,915/-
The petitioner accepted to pay rs.3,50,000/- by the
way of installments for rs.5000/- per month and
an agreement to that effect was made in May
1954 under section 8A of the act.

20. Muthaiah v I.T.Commissioner
• AIR 1956 SC 269 held that section 5(1) of the act was
Ultra vires of Article 14 of the constitution . Then the
petitioner challenged the agreement under section 8 A
with investigation commission and stopped to pay the
further installments.
• The respondents on the other hand contended that the
petitioner, by voluntarily entering into an agreement
had waived his fundamental right guaranteed under
Article 14.
• The supreme court rejected the contention of the
respondents and held that fundamental rights, could not

21. Whether an amendment of
the constitution amounts to
„Law‟ under articLe 13(2)

22. Shankari Prasad v. Union of
India
AIR 1951 SC 458
The supreme court held that the word law in
article 13(2) did not include the law/
amendment made by the Parliament under
Article 368.
The above decision was ruled out by the supreme
court in Golaknath v. state of Punjab, AIR
1967 SC 1643
The decision resulted in certain problems.

23. Finally the supreme court in Kesavananda
Bharati AIR 1973 SC 146 upheld the validity of
the constitution act 1971 and over ruled the
decision of Golaknath’s case.