Article 13(2)

Post-Constitutional Laws which are

in contravention shall be void ab
initio.
• Cl.(2): Any law made by the legislature or
other authority after the commencement of
the Constitution, which contravenes any of the
fundamental rights, shall to the extent of such
contravention, be void.
• Reason for Article 13(2):
• Constitution is regarded as the “will” of the
people. Statutory Laws are the creation of the
Legislators.
• Where the will of the legislature is in
opposition to the will of the people, the
former must be ousted.
(Supreme Court Advocates on Record
Association v. UOI, AIR 1994.)
• Cl.2. Makes a law void ab initio:
• Convictions made under such unconstitutional
laws shall have to be set aside.
• Anything done under the unconstitutional
laws whether closed, completed or inchoate
will be wholly illegal and relief in one shape or
another has to be given to the person affected
by such unconstitutional law. (Janardhan v.
State of Hyderabad, 1950).
 Difference between cl. 1 and cl.2
• 13(1) recognizes the existence of a Pre-
Constitutional law.

• 13(2) begins with an injunction to the State to

not make a law which takes away any FR.
• Apart, from Article 245 places a restriction
w.r.t the seventh schedule. Article 13(2) makes
the state incompetent in taking away any FR.
 Clauses (1) and (2)
‘Inconsistency’ with or in contravention of a FR
• Two different terms-
• ‘Inconsistency’-Prior to the Constitution. The
Legislature was under no prohibition w.r.t to
FR, if there was a conflict with any right, it is a
case of inconsistency with a FR created
subsequently.
• A law after the Constitution is subject to
prohibition in cl. 2, if it violates FR> it a
contravention of a constitutional limitation.
 Grounds of unconstitutionality:
• Contravention to any FR.
• Legislating on a subject which is not assigned to
the relevant legislature by distribution of power
(7th Schedule).
• Contravention with any mandatory provision of
the Constitution like Article 301.
• Atiabari Tea Co., Ltd. vs The State Of Assam And
Ors( Legislation passed by Assam govt. held
unconstitutional, agst. Art 301, State exceeded
its powers.)
• Incase of a State law it will be invalid in so far as it
operates beyond the boundaries of the State.
[State of Bombay v. Chamarbaughwala]

• Lottery--Prize competitions, if and when of a

gambling mature--Legislation taxing Promoters of
such competition carried on through newspaper
printed and Published outside the State--Validity-
Test-Territorial nexus.
• That the legislature concerned has abdicated
its essential legislative function as assigned to
it by the Constitution or has made an
excessive delegation of that power to some
other body.
Hamdard Dawakhana v. UOI, 1959: Drugs and
Magic Remedies.
• When an enactment is challenged on the ground of
violation of fundamental rights it is necessary to ascertain
its true nature and character, i.e., its subject matter, the
area in which it is intended to operate, its purport and
intent.

• History of the legislation, the purpose thereof, the

surrounding circumstances and conditions, the mischief
intended to be suppressed,
• the remedy proposed by the legislature and the true
reason for the remedy.
• Initially, there is a presumption in favour of the
constitutionality of an enactment.
 Behram v. State of Bombay, AIR 1955
SC 123:
-A statute that is adjudged as unconstitutional –
non-existent.
-Rights cannot be built under it.
-Contracts dependent upon it are void.
-No protection to anyone who has acted under it
—No one can be punished for refusal to obey it.
Rakesh Vij v. Raminder Pal Singh Sethi,
(2005):
• Any law made in contravention with Part III is
dead from the very beginning and cannot at
all be taken notice of or read for any purpose
whatsoever.
• Such a law is dead from the beginning.
• A law, which is stillborn and is dead right from
its inception.