Ans. Article 13 of the Indian Constitution provides that the Parliament and State Legislatures are strictly prohibited from making such laws that may infringe or take away the Fundamental Rights guaranteed by the Constitution itself.
The provision talks about four principles relating to Fundamental Rights. According to it, Fundamental Rights exist from the date on which the Indian Constitution came into force, i.e., 26th January 1950. Hence, Fundamental Rights became operative from this date only.
In this regard, Clause (1) of Article 13 talks about pre-Constitutional laws. Before the Constitution came into existence, there were many laws in the country. After the Constitution came into force and Fundamental Rights became effective, such pre-Constitution laws had to prove their compatibility with the Fundamental Rights. Only then would those laws be considered valid; otherwise, they would be declared void.
Clause (1) is prospective in nature, not retrospective. This means Article 13 came into effect from 26 January 1950, and persons committing offences after that date would be prosecuted according to the Constitution and not according to pre-Constitutional laws.
This leads to the Doctrine of Severability, which states that if some parts of a statute are inconsistent with the Fundamental Rights, the entire statute will not be declared void. Only the inconsistent portion will be treated as void.
This doctrine was explained in A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
In this case, Section 14 of the Preventive Detention Act, 1950 was challenged. The section provided that a detained person could not disclose the grounds of detention before a court of law. This provision was inconsistent with Article 22 of the Constitution. Therefore, by applying the Doctrine of Severability, only Section 14 was declared void, while the rest of the Act remained valid.
Another doctrine originating from Article 13 is the Doctrine of Eclipse.
This doctrine states that any law contrary to the Fundamental Rights enshrined in Part III of the Constitution is not void, but becomes unenforceable (dormant) until the inconsistency is removed.
The Supreme Court evolved this doctrine in Bhikaji Narain Dhakras v. State of Madhya Pradesh. The Court held that any pre-Constitution law inconsistent with the provisions of Part III is not void ab initio but merely becomes unenforceable.
Talking about Clause (4) of Article 13, it states that amendments made under Article 368 cannot ordinarily be challenged under Article 13. However, this gave rise to the Doctrine of Basic Structure, which limits Parliament’s power to amend the Constitution.
In Minerva Mills Ltd. v. Union of India (1980), the Supreme Court held that Judicial Review is a part of the Basic Structure of the Constitution and therefore cannot be amended away. Consequently, every constitutional amendment made by Parliament is subject to judicial review.
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