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ARTICLE 13

LAWS INCONSISTENT WITH


FUNDAMENTAL RIGHTS

ARTICLE 13
Article 13(1) declares that all laws in force in the
territory of India immediately before the
commencement of this Constitution shall be void
to the extent to which they are inconsistent with
the provisions of Part III of the Constitution.
Clause (2) of this article provides that the State
shall not make any law which takes away or
abridges the fundamental rights conferred by
Part III of the Constitution & any law made in
contravention of fundamental rights, shall, to the
extent of contravention, be void.

Clause (3) of this article gives the term


law a very broad connotation which
includes any ordinance, order, by-law,
rule, regulation, custom or usage having
the force of law.
Thus not only the Legislative enactment,
but anything mentioned here can be
challenged as infringing a fundamental
right.

POWER OF JUDICIAL REVIEW


Article 13 in fact provides for the judicial
review of all legislations in India, past as
well as future.
This power has been conferred on the
High Courts & the Supreme Court of India
(Article 226, 32) which can declare a law
unconstitutional if it is inconsistent with
any of the provisions of Part III of the
Constitution.

MEANING & BASIS OF JUDICIAL


REVIEW
Judicial Review is the power of courts to
pronounce upon the constitutionality of
legislative acts which fall within their normal
jurisprudence to enforce & the power to refuse to
enforce such as they find to be unconstitutional
& hence void.
Judicial Review said Khanna, J., in the
Fundamental Rights case, has thus become an
integral part of our Constitutional System & a
power has been vested in the High Courts & the
SC to decide about the constitutional validity of
the provisions of statutes.

If the provisions of the statutes are found to be


violative of any of the Articles of the Constitution
which is the touchstone for the validity of all laws
the SC & the High Courts are empowered to
strike down the said provisions.
That power corrupts a man & absolute power
corrupts absolutely which ultimately leads to
tyranny, anarchy & chaos has been sufficiently
established in course of evolution of human
history, & all round attempts have been made to
erect institutional limitations on its exercise.

Judicial Review is thus the interposition of


judicial restraint on the legislative as well as
the executive organs of the Government.
The concept has the origin in the theory of
limited Government & in the theory of two
laws- an ordinary & supreme (i.e. the
Constitution).
The doctrine of judicial review was for the first
time propounded by the SC of America.

In Kesavanand Bhartis case it has been held


that Judicial Review is the basic features of
the Indian Constitution & therefore, it cannot
be damaged or destroyed by amending the
Constitution under Article 368 of the
Constitution.
Again, in L.Chandra Kumar v. Union of India
(1997), the SC has held that the power of
judicial review of legislative action as vested
in the High Court under Article 226 & in the
SC under Article 32 is part of the basic
structure of the Constitution & can be ousted
or excluded even by the constitutional
amendment.

PRE-CONSTITUTION LAWS
Acc. to clause (1) of Article 13 all preConstitution 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 inconsistent with Fundamental Rights
from the date of the commencement of the
Constitution.

ARTICLE 13 NOT
RETROSPECTIVE IN EFFECT
Article 13(1) is prospective in nature.
All pre-Constitution laws inconsistent with
Fundamental Rights will become void only after
the commencement of the Constitution.
They are not void ab initio.
Such inconsistent law is not wiped out so far as
the past Acts are concerned.
A declaration of invalidity by the Courts will,
however, be necessary to make laws invalid.

CLAUSE (1)- EXISTING LAWS

In applying the rule mentioned in clause


(1), the following principles of
interpretation should be noted1. No retrospective effect
2. The rule of severability
3. The doctrine of eclipse

CONTINUE
.