ARTICLE 13 OF CONSTITUTION OF INDIA By Trapti Pareek

Introduction
The Article 13 asserts the supremacy of the Indian Constitution and also makes way for judicial review. This legislation creates scope constitutional and existing laws. for reviewing pre- constitutional and existing laws.
In the case of Renu vs District and Session Judge, Tis Hazari, (AIR 2014 SC 2175) court held that the main objective of Article 13 is to secure the paramountcy of the Constitution especially with regard to fundamental rights.
The concept of judicial interventions in Constitutional matters has sparked debates, yet, the power of judicial review is evoked to protect and enforce the fundamental rights.
Types of Laws under Article 13
Pre Constitutional Laws – These existed before the commencement of the constitution in 26th January, 1950
Post Constitutional Laws – These are laws made after the commencement of the constitution in 26th January, 1950

No retrospective effect of Art.13

  • Art.13(1) is prospective in nature.
  •  According to Art.13(1), all pre-constitutional laws or existing, laws, i.e. laws which were in force immediately before the commencement of the constitution shall be void to the extent to which they are in consistent with F.Rs. from the date of its commencement
Keshava Madhav Menon Vs State of Bombay (1951 AIR 128)
Facts – In that case, a prosecution proceeding Press (Emergency Powers) Act, 1931 in respect of a pamphlet published in 1949. The present Constitution came into force during the pendency of the proceeding in the Court.
The appellant contended that the Act was inconsistent with the fundamental rights conferred by Article 19 (1)(a) of the Constitution hence void, and the proceeding against him could not be continued.
Issues – Whether Sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article
Held – The Supreme Court held that Article 13 (1), could not apply to his case as the offence was committed before the present Constitution came into force and therefore, the proceedings started against him in 1949 were not affected.
There are 3 doctrines under Article:
1.  Doctrine of Severability
2. Doctrine of Eclipse
3. Doctrine of Waiver
1. Doctrine of Severability
This doctrine means, if an inconsistent provision can be separated from that which are consistent then only that part which is inconsistent is to be declared as void and not the entire Act. It is because Art. 13 uses the words “to the extent of such inconsistency be void”.
A. K. Gopalan Vs State of Madras, AIR 1950 SC 27
In this case the Supreme Court while declaring Section 14 of the Preventive Detention Act, 1950, as ultra vires, observed :
“The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of the legislation. Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act.”
2. Doctrine of Eclipse
This doctrine is based on the principle that a law which violates F.Rs. is not void ab initio, but becomes only unenforceable, i.e., remains in a moribund condition. It is overshadowed by the F.Rs. and remains dormant; but it is not dead. Such laws are not wiped out entirely from the statute book.
They exist for all past transactions, and for the enforcement of rights acquire and liabilities incurred before the present constitution came into force and also for the determination of right of persons who have not been given F.Rs. by the constitution, i.e. non-citizens.
Bhikaji Narain Dhakras Vs State of M.P. (1955 AIR 781)
In this case a problem was solved:
Can such a law which becomes unenforceable after the const. came into force be again revived and made effective by an amendment in the constitution?
It was to solve this problem; the S.C. formulated the “doctrine of eclipse”
Facts – In that case provision of C.P. and Berar Motor Vehicles (Amendment) Act, 1947 authorized the State Government to make up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision, though valid when enacted, became void on the coming into force of the Constitution in 1950 as they violated Article 19 (1)(g) of the Constitution.
However, in 1951, Clause (6) of Article 19 was amended by the Constitution (Ist Amendment) Act, so as to authorise the Government to monopolise any business.
Held – The Supreme Court held that the effect of the Amendment was to remove the shadow and to make the impugned Act free from all blemish or infirmity’. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed.
• This law was merely eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed the law begins to operate from the date of such removal.
Deep Chand Vs. State of U.P. (1959 AIR 648)
In the case, Supreme Court held that a post-constitutional law made under Article 13 (2) which contravenes a fundamental right is nullity from its inception and a still-born law. It is void ab initio. The doctrine of eclipse does not apply to post-constitutional laws and therefore, a subsequent constitutional amendment cannot revive it.
3. Doctrine of waiver
• The Doctrine of Waiver is based on the premise that a person is his best judge and that he has the liberty to waive the enjoyment of such rights as are conferred on him by the state.
• The doctrine of waiver has no application to the provision of law enshrined in Part III of the Constitution. It is not open to an accused person to waive or give up his Constitutional rights and get convicted.
Basheshar Nath v. Commissioner of I.T. (AIR 1959 SC 149)
Can a citizen waive his fundamental right?
• This question was answered in this case.
Facts – The petitioner whose case was referred to the Income-tax Investigation Commissioner under Section 5 (1) of the Act was found to have concealed large amount of income. He, thereupon, agreed at a settlement in 1954 to pay Rs. 3 lakhs in monthly installments by way of arrears of tax and penalty.
In 1955, the Supreme Court in Muthiah v. I.T. Commissioner, held that Section 5 (1) of the Taxation of Income (Investigation Commission) Act was ultra vires of Article 14. The petitioner then challenged the settlement between him and the Income Tax Investigation Commission. The respondent contended that even if Section 5 (1) was invalid, the petitioner by entering into an agreement to pay the tax had waived his fundamental right guaranteed under Article 14.
Held – The Court held that, it is not open to a citizen to waive any of the fundamental rights conferred by Part III of the Constitution. These rights have been put in the Constitution not merely for the benefit of the individual but as a matter of public policy for the benefit of the general public. It is an obligation imposed upon the State by the Constitution.

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