Notes and Articles for Law students

User Tools

Site Tools


Laws Inconsistent with or in Derogation of the Fundamental Rights

Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review. This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

Article 13

  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 the contravention, be void.
  3. In this article, unless the context otherwise requires,
    1. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
    2. “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.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.

Judicial Review

Judicial Review is power of the Courts to examine constitutional validity of a executive or legislative action. Power of Judicial Review originated from USA in Marbury v. Madison(1803) was the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.

Judicial Review has two prime functions:

  1. Legitimizing government action; and
  2. To protect the constitution against any undue encroachment by the government.

The most distinctive feature of the work of United States Supreme Court is its power of judicial review. As guardian of the constitution, the Supreme Court has to review the laws and executive orders to ensure that they do not violate the constitution of the country and the valid laws passed by the congress.

The Power of Judicial Review has been held by the Supreme Court in L Chandra Kumar v Union of India1) as part of the basic structure of the Constitution. In this case right to appeal to High Court was upheld.

It is to be noted that Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case2 (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.

Can preamble be amended? One of the controversies about the Preamble is as to whether it is a part of the Constitution or not. In the Berubari Union case (1960), the Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the makers of the Constitution. Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble. Despite this recognition of the significance of the Preamble, the Supreme Court specifically opined that Preamble is not a part of the Constitution

In the Kesavananda Bharati case(1973), the Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.

In the LIC of India case (1995) also, the Supreme Court again held that the Preamble is an integral part of the Constitution

As discussed above since the preamble is a part of the constitution, it can be amended like any other part of the constitution. Now this question is of no great importance as preamble of our constitution was amended by the 42nd amendment.

A.K. Gopalan Vs .State of Madras

In this case2) 9 Judge Bench of Supreme Court by unanimous decision declared that Section 14 of the Preventive Detention Act invalid and thus manifested its competence to declare void any parliamentary enactment repugnant to the provisions of the Constitution.

Shankari Prasad v Union of India

In this case3) Supreme Court unanimously held, “The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever”. This decision declared the absolute power of parliament to amend Fundamental Rights.

Sajjan Singh v State of Rajasthan

In this case4) Supreme Court confirming its earlier view held that the Parliament can amend Fundamental Rights.

Golak Nath v State of Punjab

In this case5) Supreme Court held that the Parliament cannot amend Fundamental Rights and constitutional amendments pursuant to Article 368 were subject to fundamental rights.

Kesavanand Bharti v State of Kerala

The 13-judge Constitutional bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual.

In a sharply divided verdict6), by a margin of 7-6, the court held that while the Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution.

Maneka Gandhi v Union of India

In this case7) the Hon'ble Supreme court opined that Article 14, 19, 21 are not water tight compartments and further held that “The procedure established by law under Article 21 should be just, reasonable and fair”.

Minerva Mills v Union of India

In this landmark case Supreme Court had struck down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of the Part III of the Constitution, on the ground that Part III and Part IV of the Constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the Constitution. The Supreme Court was convinced that anything that destroys the balance between the two part will, by that very fact, destroy an essential element of the basic structure of our constitution.

On Section 55 of 42nd Constitutional Amendment Act, 1976, Justice PN Bhagwati observed that (i) The Parliament has limited amending power of constitution, (ii) the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its power both these powers forms part of the basic structure of the Constitution.

Doctrine of Severability

Article 13 of the Indian Constitution provides for Doctrine of Severability which states that All laws in force in India before the commencement of Constitution shall be void in so far they are inconsistent with the provisions of the Constitution.

A law becomes invalid only to the extent to which it is inconsistent with the fundamental rights. So only that part of the law will be declared invalid which is inconsistent, and the rest of the law will stand. However, on this point a clarification has been made by the courts that invalid part of the law shall be severed and declared invalid if really it is severable, i.e if after separating the invalid part the valid part is capable of giving effect to the legislature’s intent, then only it will survive, otherwise the court shall declare the entire law as invalid.

A.K. Gopalan v. State 0f Madras

Court held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective.

D.S. Nakara v. Union of India

the Act remained valid even though the offending portion of the Act was declared invalid, because it was severable from the rest of the Act.

R.M.D.C. v.Union of India

In this case8) Supreme Court held that where after removing the invalid portion what remains constitutes a complete Code there is no necessity to declare the whole Act invalid. In such cases, whether the valid parts of the statute are separable from the invalid, the intention of the legislature is the determining factor. From the decision we can understand that:

  1. The intention of the legislature is the determining factor in determining whether the valid parts of a statue are severable from the invalid parts.
  2. If the valid and invalid provisions are so inextricably mixed up so that they cannot be separated from the other, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
  3. Even when the provisions which are invalid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
  4. If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be stuck down as void as otherwise it will amount to judicial legislation.

Doctrine of Eclipse

It states that an existing law which is inconsistent with a fundamental right become inoperative from the date of the commencement of the constitution, it cannot be accepted as dead altogether. The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity or void ab initio but becomes, only unenforceable i.e. remains in a moribund condition. “It is over-shadowed by the fundamental rights and remains dormant, but it is not dead.” 

Bhikhaji v. State of M.P.

In this case9) the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement 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 (1st Amendment Act) so as to authorize the Government to monopolise any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was 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 v. State of U.P.

In this case10) it was held that doctrine of eclipse does not apply to Post-Constitutional law because such a law is void ab initio. A subsequent constitutional amendment cannot revive such a law.

State of Gujarat v. Ambica Mills

This case11) Overruled Deep Chand’s ruling and held that a post-Constitutional law which is inconsistent with fundamental rights is not nullity or non-existent in all cases and for all purposes.

Dulare Lodh v. III Additional District Judge, Kanpur

Held that Doctrine of Eclipse applies to post-constitutional law and it is applicable to citizens as well.12)

Doctrine of Waiver and Fundamental Rights in India

Fundamental Rights are the most special of the rights in Indian Context. These rights though sacrosanct are not absolute in nature. Our Constitution imposes various imposes various reasonable restrictions upon the exercise of fundamental rights.

As stated above, we saw that a right can be waived subject to the condition that no public interest is involved therein. However, the scope of the Doctrine of Waiver with respect to Fundamental rights is a bit different. It was discussed in the case of Basheshar Nath v. Income Tax commissioner13).

The primary objective of Fundamental Rights is based on Public Policy. Thus, individuals are not allowed to waive off such fundamental rights. Also, it is the constitutional mandate of the Courts to see that Fundamental Rights are enforced and guaranteed even if one might wish to waive them.

Basheshar Nath v. Income Tax commissioner

In this case the Court said that:

Without finally expressing an opinion on this question we are not for the moment convinced that this Doctrine has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty, of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the ‘doctrine of waiver’ can have no application to provisions of law which have been enacted as a matter of Constitutional policy. Reference to some of the articles, inter alia, Articles 15(1), 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'You can discriminate', or get convicted by waiving the protection given under Articles 20 and 21.”

Miranda v. Arizona

In this case it was held that doctrine of waiver is not available to fundamental rights. The case that brought about the eventual Miranda rights ruling, involved Ernesto Miranda of Phoenix, Arizona.

In 1963, Miranda was arrested for the armed robbery of a bank worker. While in custody of police, Miranda – who had a record for armed robbery, attempted rape, assault and burglary – signed a written confession to the armed robbery. He also confessed to kidnapping and raping an 18-year-old girl 11 days prior to the robbery. Miranda was convicted of the armed robbery, but his attorneys appealed the case on the grounds that Miranda did not understand that he had the right against self-incrimination. When the Supreme Court made its landmark Miranda ruling in 1966, Ernesto Miranda's conviction was overturned. Prosecutors later retried the case, using evidence other than his confession, and he was convicted again. Miranda served 11 years in prison and was paroled in 1972.

At age 34, Ernesto Miranda was stabbed and killed in a 1976 bar fight. A suspect was arrested in Miranda's stabbing, but exercised his right to remain silent.

AIR 1997 SC
AIR 1950
AIR 1952 SC
AIR 1965 SC
AIR 1967 SC
AIR 1973 SC
AIR 1978 SC
AIR 1957 SC 628
AIR 1955 S.C. 781
AIR 1959 SC 648
AIR 1974 SC 1300
AIR 1984 SC 1260
AIR 1959 SC 149