Article 13 - Constitution of India - Notes

·         Article 13(1) – Deals with Pre-Constitutional Law if unconstitutional void till extent of inconsistency with constitution

·         Article 13(2) – Any law to be made now shall be in consonance with constitution.

·         Article 13(3)(a) – Law includes ordinance order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

·         Article 13(3)(b) – 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.  

Rule of Severability

·         It applies to both future and existing law. Court will not entire declare law unconstitutional but only those which are held to be against fundamental right.

·         State of Bombay v. F.N. Balsara - Eight Provisions of Bombay Prohibition Act were held to be unconstitutional.

·         RMDC v. Union of India – Section 2(d) of Prize Competition Act which was wide enough to prohibit gambling as well as game of skills. The power of the court to strike out invalid provisions of an Act must not be exercised beyond the necessity of the case. But sometimes valid and invalid portions of the Act are so intertwined that they cannot be separated from one another. In such cases, the invalidity of the portion must result in the invalidity of the Act in its entirety. The intention of the Legislature is the determining factor if the valid part of a statute is severable from the invalid parts.

Doctrine of Eclipse

·         It says that any law inconsistent with Fundamental Rights is not invalid. It is not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can be removed by constitutional amendment to the relevant fundamental right so that eclipse vanishes and the entire law becomes valid.

·         Deep Chand v. UP – Post constitutional law infringing fundamental right are void ab intitio and doctrine of eclipse cannot apply.

·         Bhikhai Narian v. State of MP – CP & Berar Motor Vehicle Act authorised state monopoly in motor vehicle business. Article 19(1)(g) made it void.  Later on impugned law could be validated by a constitutional amendment.

·         Schedule IX – Immune to judicial scrutiny, Article 31B – Allows for putting law under Schedule IX and here doctrine of eclipse could be used. All laws put under Schedule IX could be checked for basic structure.

·         Ambica Mills Ltd. v. State Of Gujarat – If a post constitutional statute is void because it infringes rights of citizen then that doesn’t mean it is void for non-citizens as well as the law is limited to the void of contravention.

·         Shankri Prasad v. Union of India (1951)– Amendment cannot be challenged as they are not law as per Article 13(2).

·         Golak Nath v. State of Punjab (1967) - Amendment need to be constitutional.

Keshava Madhava Menon v. State of Bombay (1951)

·         Petitioner was prosecuted under a press law for publishing a pamphlet without permission. While prosecution was on going constitution was commenced and he challenged the act as unconstitutional.  Issues arose

o   Whether sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article?  

o   And assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?  

·         Since constitutional rights came from date of commencement of constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation.

·         Also Article 13(1) does not make such laws void ab initio for all purposes but to extent of inconsistency with fundamental rights. The voidness of the existing law is limited to the future exercise of the fundamental rights.

·         The Court held that every statute is prima facie prospective unless it is expressly or by necessary implication made retrospective.

·         J. Fazl Ali (Dissenting)

o   J. K. Gas Plant Manufacturing v. King Emperor - When an Act of Parliament is repealed it must be considered (except as to transactions past and closed) as if it had never existed.

o   Wall v. Chesapeake & Ohio Ry., Company­ - It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has not been granted before, the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute

o   Repealed as completely as if it had never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law.

o   Interpret meaning of null and states that how could it be intent of framers to keep laws inconsistent with constitution as functional is beyond him

o   If laws inconsistent can be used to punish people even after commencement of constitution then why such logic is not used for repealed act

Behram Khurshid Pesikaka v. State of Bombay (1955)

·         The appellant was charged under Section 66(b), Bombay Prohibition Act, 1949 for driving under the influence of alcohol.

·         Prior case, State of Bombay v. F.N. Balsara had already declared section 13(b), Bombay Prohibition Act, 1949, declared to be void so far as it affected the consumption or use of medicinal and toilet preparations containing alcohol, and violated 19.

·         Held that the part of the section of an existing law which is unconstitutional is not law, and is null and void. It is notionally obliterated from the Statute book for the purposes of determining the rights and obligations of citizens. However, the same remains good law when a question arises for determination of rights and obligations incurred before 26 January, 1950.

Bhikaji Narain Dhakras v State of M.P. (1955)

·         C.P. & Berar Motor Vehicles (Amendment) Act, 1947 was amended which violated Article 19 but the act was passed prior to commencement of Constitution.

·         The petitioners contend that the law having become void for unconstitutionality was dead and could not be vitalised by a subsequent amendment of the Constitution removing the constitutional objection, unless it was re-enacted.

·         All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of article 13, rendered void "to the extent of such inconsistency". Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the constitution, as against non-citizens.

Mahendra Lal Jaini v. State of U.P. (1963)

·         Article 13(1) recognizes the existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by the Doctrine of Eclipse.

·         Article 13(2) provides for an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. The legislative power of Parliament and State Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore, subject to Article 13(2).

·         Since contravention arises only on passing the law an argument that a later amendment to Constitution removes the contravention would not sustain.

Basheshar Nath v. Commissioner of Income Tax

·         Petitioner concealed huge amount of his income and his case was referred to investigative commission under section 5A. In order to escape a heavier penalty he agreed for settlement under Section 8A to pay a sum of Rs 3 lakh

·         Meanwhile, SC in another case held that section 5A is unconstitutional and is violative of Article 14

·         Petitioner on the basis of unconstitutionality of Section 5A challenged thee enforceability of the settlement

·         Respondent argued that petitioner has waived its right to equality by agreeing to terms of the settlement

·         Doctrine of Waiver – Held that it is not pen for a citizen to waive his/her fundamental right

State of Gujarat v. Shri Ambika Mills (1974)

·         Challenged acts and rules as unconstitutional and declaration to not pay the unpaid accumulations specified in the act and rules.

·         Whether, on that assumption, the first respondent could claim that the law was void as against the non-citizen employers or employees under Article 13(2) and further contend that the non-citizen employers have been deprived of their property without the authority of law, as, ex hypothesi a void law is a nullity.

·         Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, R. C. Cooper v. Union of India - a Corporation is not a citizen for the purposes of Article 19 and has, therefore, no fundamental right under that article

·         The real question, therefore, is, even if a law takes away or abridges the fundamental right of citizens under Article 19(1)(f), whether it would be void and therefore non-est as respects non-citizens

·         Keshava Madhava Menon v. State of Bombay (1951) - This decision takes the view that the word 'void' in Article 13(1) would not have the effect of wiping out pre- Constitution laws from the statute book, that they will continue to be operative so far as noncitizens are concerned, notwithstanding the fact that they are inconsistent with the fundamental rights of citizens and therefore become void under Article 13(1).

·         M. P. V. Sundararamaier v. State of A.P. (1958) - a law if it lacks legislative competence was absolutely null and void and a subsequent cession of the legislative topic would not revive the law which was still-born and the law would have to be re-enacted; but a law within the legislative competence but violative of constitutional limitation was unenforceable but once the limitation was removed, the law became effective.

·         Deep Chand v. State of U.P [1959] - a post- Constitution law is void from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as non-citizens are concerned after the Constitution came into force. This is so because prior to commencement of constitution legislature had competence to pass such act but after commencement of constitution legislature does not has the competence to pass unconstitutional laws.

·         Mahendra Lal Jain v. State of U.P. [1963] - that it arises from the inherent difference between Article 13(1) and Article 13(2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post- Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the law being still-born there will be no scope for the application of the doctrine of eclipse

·         Therefore, the real reason why such law remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their fundamental rights alone.

·         Article 13(2) uses the expression 'void', it can only mean, void as against persons whose fundamental rights are taken away or abridged by a law. The law might be 'still-born' so far as the persons, entities or denominations whose fundamental rights are taken away or abridged, but there is no reason why the law should be void or 'still-born' as against those who have no fundamental rights.

·         Jagannath v. Authorised Officer, Land Reforms, [1972] - this Court has said that a post-Constitution Act which has been struck down for violating the fundamental rights conferred under Part III and was therefore still-born, has still an existence without re-enactment, for being put in the Ninth Schedule.

·         If a law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the void-ness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all