Article 13 – Laws Inconsistent With or in Derogation of Fundamental Rights

Article 13 of the Constitution of India is one of the most important provisions in Part III, which deals with Fundamental Rights. It establishes the constitutional principle that laws inconsistent with or in derogation of Fundamental Rights are invalid to the extent of their inconsistency.

Article 13 is therefore closely connected with constitutional supremacy, judicial review and the protection of Fundamental Rights.

It provides the constitutional basis for courts to examine laws and determine whether they violate Fundamental Rights.

Meaning of Article 13

In simple terms, Article 13 means that the State cannot make or continue to enforce laws that take away or abridge the Fundamental Rights guaranteed by Part III.

If a law conflicts with a Fundamental Right, the unconstitutional portion can be rendered invalid to the extent of the conflict.

The provision applies both to certain laws that existed before the Constitution came into force and to laws made after its commencement.

Constitutional Text of Article 13

Article 13 contains four important clauses:

• Article 13(1) deals with laws existing before the commencement of the Constitution.
• Article 13(2) deals with laws made by the State after the commencement of the Constitution.
• Article 13(3) explains what is meant by “law” and “laws in force”.
• Article 13(4) states that Article 13 does not apply to constitutional amendments made under Article 368.

Each clause has a distinct significance.

Article 13(1) – Pre-Constitution Laws

Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void.

This provision deals with pre-Constitution laws.

The Constitution did not automatically erase every law that existed before 26 January 1950. Instead, laws inconsistent with Fundamental Rights became unenforceable to the extent of that inconsistency.

For example, if a pre-Constitution law conflicts with a Fundamental Right, the conflicting portion cannot continue to operate against the constitutional guarantee.

Meaning of “Void to the Extent of Inconsistency”

The expression “to the extent of such inconsistency” is important.

It means that the entire law does not necessarily become invalid merely because one of its provisions violates a Fundamental Right.

If the unconstitutional portion can be separated from the valid portion, only the inconsistent part may be affected.

This principle is closely connected with the Doctrine of Severability.

Article 13(2) – Post-Constitution Laws

Article 13(2) provides that the State shall not make any law that takes away or abridges the rights conferred by Part III.

Any law made in contravention of this provision is void to the extent of the contravention.

This provision applies to laws made after the commencement of the Constitution.

Therefore, Article 13(2) places a constitutional limitation on legislative power.

Parliament and State legislatures cannot enact ordinary laws that violate Fundamental Rights.

Article 13(1) and Article 13(2)

The distinction between these two clauses is important for examinations.

Article 13(1)	Article 13(2)
Deals with pre-Constitution laws	Deals with post-Constitution laws
Concerns laws existing before the Constitution commenced	Concerns laws made after commencement
Makes inconsistent laws void to the extent of inconsistency	Makes laws violating Fundamental Rights void to the extent of contravention
Focuses on continuing effect of earlier laws	Restricts future legislative action

Article 13(3) – Meaning of “Law”

Article 13(3) expands the meaning of “law” for the purposes of Article 13.

It includes:

• Ordinances
• Orders
• Bye-laws
• Rules
• Regulations
• Notifications
• Customs
• Usages

The definition is therefore considerably broader than legislation enacted by Parliament or State legislatures.

Article 13(3)(a) – “Law”

Article 13(3)(a) states that, unless the context otherwise requires, “law” includes:

• Any Ordinance
• Order
• Bye-law
• Rule
• Regulation
• Notification
• Custom
• Usage

having in the territory of India the force of law.

This ensures that constitutional scrutiny is not limited only to formal Acts passed by legislatures.

Article 13(3)(b) – “Laws in Force”

“Laws in force” includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of the Constitution and not previously repealed.

It also includes laws that were not actually in operation throughout India or in every part of India.

This provision is important in understanding the treatment of pre-Constitution laws under Article 13(1).

Article 13(4) – Constitutional Amendments

Article 13(4) provides that nothing in Article 13 shall apply to any amendment of the Constitution made under Article 368.

This clause was inserted by the Twenty-Fourth Constitutional Amendment Act, 1971.

Its purpose was to clarify that constitutional amendments made under Article 368 are not treated as “law” for the purpose of Article 13.

However, this does not mean that constitutional amendments are completely beyond judicial review.

The Supreme Court has developed important constitutional jurisprudence concerning the relationship between Article 13, Article 368 and the Basic Structure Doctrine.

Article 13 and Constitutional Amendment

The question of whether a constitutional amendment could be challenged for violating Fundamental Rights has been the subject of major Supreme Court decisions.

The position developed over several landmark cases.

Shankari Prasad v. Union of India

The Supreme Court held that a constitutional amendment made under Article 368 was not “law” within the meaning of Article 13.

Therefore, Parliament could amend Fundamental Rights through the constitutional amendment process.

Sajjan Singh v. State of Rajasthan

The Supreme Court reaffirmed the approach taken in Shankari Prasad and maintained that constitutional amendments were not covered by Article 13.

I.C. Golaknath v. State of Punjab

The Supreme Court took a different position and held that Parliament could not amend Fundamental Rights in a manner that took away or abridged them.

The judgment treated constitutional amendments as “law” for the purposes of Article 13.

This led to significant constitutional developments.

Kesavananda Bharati v. State of Kerala

The Supreme Court reconsidered the issue and established the Basic Structure Doctrine.

The Court held that Parliament has broad power to amend the Constitution but cannot alter its basic structure.

The decision therefore became a central authority concerning constitutional amendments and judicial review.

Minerva Mills v. Union of India

The Supreme Court reaffirmed the importance of limited amending power and judicial review as part of the Constitution’s basic structure.

The case is important for understanding the constitutional limits on Parliament’s power to amend the Constitution.

Article 13 and Judicial Review

Article 13 is closely associated with judicial review.

Judicial review allows constitutional courts to examine laws and determine whether they comply with the Constitution.

When legislation violates a Fundamental Right, Article 13 provides the constitutional framework for declaring the law void to the extent of the violation.

The Supreme Court and High Courts therefore play an important role in protecting Fundamental Rights.

Article 13 and Constitutional Supremacy

Article 13 reflects the principle of constitutional supremacy.

Under this principle, ordinary laws must conform to the Constitution.

Parliament and State legislatures possess legislative power, but that power is exercised within constitutional limits.

Therefore:

Constitution → Highest legal authority

Ordinary legislation → Must conform to the Constitution

Law violating Fundamental Rights → Subject to constitutional invalidity

Doctrine of Severability

The Doctrine of Severability is closely associated with Article 13.

Where only part of a law violates a Fundamental Right, the unconstitutional portion may be separated from the valid portion if the remaining part can operate independently.

The entire law does not necessarily become invalid.

The key question is whether the valid and invalid portions can be separated without changing the legislative purpose or leaving an unworkable law.

Example

Suppose a law contains ten provisions and only one provision violates Article 14.

If that provision can be separated from the remaining provisions, the unconstitutional provision may be struck down while the remaining provisions continue to operate.

This is why Article 13 uses the expression:

“to the extent of such inconsistency”

Doctrine of Eclipse

The Doctrine of Eclipse is another important doctrine associated with Article 13.

It primarily concerns pre-Constitution laws that are inconsistent with Fundamental Rights.

Under the doctrine, such a law is not necessarily treated as completely dead for all purposes. Its operation may be eclipsed by the Fundamental Right to the extent of the inconsistency.

The doctrine has been particularly associated with the Supreme Court’s interpretation of Article 13(1).

Bhikaji Narain Dhakras v. State of Madhya Pradesh

The Supreme Court applied the Doctrine of Eclipse in relation to a pre-Constitution law that became inconsistent with a Fundamental Right.

The case is important for understanding how an existing law can become unenforceable because of constitutional inconsistency while retaining relevance in certain circumstances.

Article 13 and the Doctrine of Waiver

The general position in Indian constitutional law is that an individual cannot simply waive a Fundamental Right and thereby make an unconstitutional law valid against them.

The Supreme Court has traditionally treated Fundamental Rights as constitutional protections rather than merely private rights that an individual can freely surrender.

Therefore, the Doctrine of Waiver has not been accepted in the same manner in India as in some other constitutional systems.

Article 13 and Custom or Usage

Article 13 is particularly significant because its definition of “law” includes custom and usage having the force of law.

Therefore, a customary practice can potentially be examined for consistency with Fundamental Rights where it falls within the scope of Article 13.

This demonstrates that constitutional protection is not restricted only to formally enacted legislation.

Article 13 and Judicial Review of Legislation

When a law is challenged for violating a Fundamental Right, the court may examine:

1. Whether the challenged measure qualifies as “law” under Article 13.
2. Which Fundamental Right is allegedly affected.
3. Whether the law actually infringes that right.
4. Whether the Constitution permits the restriction in the particular circumstances.
5. Whether the entire law or only part of it is unconstitutional.

The answer depends on the particular Fundamental Right and the constitutional provisions governing it.

Important Features of Article 13

1. Protects Fundamental Rights

Article 13 prevents laws from operating in violation of Fundamental Rights to the extent of the inconsistency or contravention.

2. Covers Pre-Constitution Laws

Article 13(1) deals with laws existing before the Constitution came into force.

3. Restricts Post-Constitution Legislation

Article 13(2) prevents the State from making laws that take away or abridge Fundamental Rights.

4. Gives a Broad Meaning to “Law”

Article 13(3) includes ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law.

5. Supports Judicial Review

Article 13 provides an important constitutional basis for reviewing laws for consistency with Fundamental Rights.

6. Is Connected With Constitutional Supremacy

It establishes that ordinary laws must conform to the Constitution.

7. Relates to Important Constitutional Doctrines

The provision is closely associated with doctrines such as:

• Doctrine of Severability
• Doctrine of Eclipse
• Doctrine of Waiver

Common Confusions

Confusion 1: Every Unconstitutional Law Becomes Completely Void

Not necessarily.

Article 13 uses the expression “to the extent” of inconsistency or contravention.

Where the unconstitutional part can be separated, the remaining valid portion may continue.

Confusion 2: Article 13 Applies Only to Acts of Parliament

Incorrect.

The definition of “law” in Article 13(3) is broad and includes various forms of legal rules and instruments.

Confusion 3: Article 13(1) and Article 13(2) Deal With the Same Laws

No.

Article 13(1) primarily concerns pre-Constitution laws.

Article 13(2) concerns laws made after the commencement of the Constitution.

Confusion 4: Article 13(4) Means Constitutional Amendments Can Never Be Challenged

Not exactly.

Article 13(4) excludes constitutional amendments made under Article 368 from Article 13.

However, the Supreme Court’s Basic Structure Doctrine places substantive limits on the amending power.

Confusion 5: Article 13 Itself Is a Fundamental Right

Article 13 is a constitutional provision in Part III that protects the effectiveness of Fundamental Rights. It is not itself framed as an individual Fundamental Right in the same manner as Articles 14 to 32.

Exam Relevance

Article 13 is extremely important for:

• Constitutional Law examinations
• Judiciary examinations
• CLAT and law entrance examinations
• Fundamental Rights
• Judicial Review
• Constitutional Supremacy
• Doctrine of Severability
• Doctrine of Eclipse
• Constitutional amendments
• Basic Structure Doctrine
• Article 14
• Article 19
• Article 21
• Article 32

Important Cases to Remember

Case	Principle / Significance
Shankari Prasad v. Union of India	Constitutional amendments were not treated as “law” under Article 13
Sajjan Singh v. State of Rajasthan	Reaffirmed the approach in Shankari Prasad
I.C. Golaknath v. State of Punjab	Took the view that Parliament could not amend Fundamental Rights to take them away or abridge them
Kesavananda Bharati v. State of Kerala	Established the Basic Structure Doctrine
Minerva Mills v. Union of India	Reaffirmed limited amending power and the importance of judicial review
Bhikaji Narain Dhakras v. State of Madhya Pradesh	Important authority concerning the Doctrine of Eclipse

Important Points to Remember

Concept	What to Remember
Article	Article 13
Part	Part III – Fundamental Rights
Main Subject	Laws inconsistent with or in derogation of Fundamental Rights
Article 13(1)	Deals with pre-Constitution laws
Article 13(2)	Restricts post-Constitution laws violating Fundamental Rights
Article 13(3)	Defines “law” and “laws in force”
Article 13(4)	Excludes constitutional amendments under Article 368 from Article 13
Key Principle	Laws violating Fundamental Rights are void to the relevant extent
Important Doctrines	Severability and Eclipse
Judicial Review	Closely connected with Article 13
Major Cases	Golaknath, Kesavananda Bharati, Minerva Mills

Quick Revision

• Article 13 protects the supremacy of Fundamental Rights against inconsistent laws.
• Article 13(1) deals with pre-Constitution laws.
• Article 13(2) restricts the State from making laws that take away or abridge Fundamental Rights.
• Article 13(3) gives a broad meaning to “law”.
• Article 13(4) excludes constitutional amendments under Article 368 from the operation of Article 13.
• The provision is closely connected with judicial review.
• The Doctrine of Severability allows unconstitutional portions to be separated from valid portions where possible.
• The Doctrine of Eclipse primarily concerns pre-Constitution laws inconsistent with Fundamental Rights.
• Kesavananda Bharati established the Basic Structure Doctrine.
• Minerva Mills reaffirmed the limited nature of Parliament’s amending power.
• Article 13 reflects the principle of constitutional supremacy.

Conclusion

Article 13 is a central provision in the constitutional protection of Fundamental Rights. It ensures that ordinary laws cannot override or diminish the rights guaranteed by Part III.

Its importance extends beyond the wording of the provision itself. Through judicial interpretation, Article 13 has become closely connected with judicial review, constitutional supremacy, the Doctrine of Severability, the Doctrine of Eclipse and the debate over Parliament’s power to amend the Constitution.

For students, the most important distinction is between its four clauses: Article 13(1) deals with pre-Constitution laws, Article 13(2) restricts post-Constitution laws, Article 13(3) defines “law”, and Article 13(4) addresses constitutional amendments made under Article 368.