Analysing the Ambit and Meaning of Article 13: How Did the Judiciary Interpret It?

GLA University - B.Com | LLB | B.A.
GLA University | B.Com | LLB | B.A.

Article 13 reserve and preserve the fundamental rights of the citizen, protecting from laws that may otherwise infringe upon our freedom. Article 13 requires that all amendments and laws passed by the Parliament are tested based on their validity under the Indian Constitution. Highlighting the transformative character of the Constitution, Anamika Mishra decodes Article 13, peeling it Clause by Clause. The underlying theme of the article also reflects on judicial review and its affect on interpreting Article 13.

Analysing Article 13
Analysing the Ambit and Meaning of Article 13: How Did the Judiciary Interpret It?

By Anamika Mishra, currently pursuing law from Faculty of Law, Delhi University.

Introduction

In the Second Treatises of government, John Locke wrote that the contract between the government and ‘men’ works only if the sovereign protects all men and their property in exchange for rights.

Further, in Chapter XVIII under Section 201 and 202 of the book, he states that if the government or sovereign uses such power to pass arbitrary and irregular commands, they will be treated like ‘any other man who by force invades the right of another’. Therefore, ‘men’ are well within their rights to question the government’s powers if they transgress one’s liberty and freedom. This means that citizens, first as humans, have the right to their legal rights by the sheer dint of being human.

The Indian Constitution provides for a similar contractual agreement between the State and the citizen. Therefore, if any legislation inflicts upon a person’s constitutional rights mentioned in Part III of the Constitution, they can approach the judiciary under Article 226 and 32.

In L. Chandra Kumar v. Union of India (1997), the Supreme Court recognised the power of the High Courts under Article 226 and Article 227 of the Constitution. Additionally, in Indira Nehru Gandhi vs Shri Raj Narain & Anr case(1975), the Court affirmed that judicial review is part of the basic structure of the Constitution.

The Constitution allows the Indian judiciary to assess such legislations and strike them down if considered void or unconstitutional.

Similarly, discussing Article 13 of the Indian Constitution becomes crucial to realise Locke’s words completely. Article 13 aids the court and citizens to keep the powers of the legislature under preview. Article 13 of the Indian Constitution describes the means for judicial review.

It enjoins a duty on the Indian State to respect and implement the fundamental right. And at the same time, it confers a power on the courts to declare a law or an act void if it infringes the fundamental rights.

This piece aims to peruse Article 13 and its Clauses while also understanding how the courts’ interpretations shaped how Article 13 is understood today. This piece will explain Article 13, Clause by Clause, and its significance as read by the Indian judiciary. It will also emphasise the importance of judicial review vis-a-vis Article 13.

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What Is Article 13? Construing the Clauses Vis-à-Vis Precedents

Article 13 is the guardian of Rights mentioned in Part III of our Constitution. Clause (1) of the said Article emphasises that all inconsistent existing laws become void from the commencement of the Constitution.

Article 13 (1) was first interpreted by the Supreme Court in adjudicating whether Article 13 had any retrospective effect as far as laws inconsistent with the fundamental rights were concerned.

In Keshavan Madhava Menon v The State Of Bombay (1951), a seven-judge Bench heard the appeal of a petitioner prosecuted under the Indian Press (Emergency Powers) Act. Part of the appeal posed if Article 13 (1) of the Indian Constitution could ‘declare all laws inconsistent with the fundamental rights to be void as if they had never been passed and existed’ or void ab initio.

The Court ordered that Article 13(1) does not make existing laws inconsistent with the fundamental rights, or void ab initio, for all purposes. But Article 13 makes such laws’ ineffectual and void’ prospectively based on its exercise of fundamental rights on and after the commencement of the Constitution.

Justice Das, on behalf of the bench (barring the dissent Justice Fazl Ali), observed,

“There is no fundamental right that a person cannot be prosecuted and punished for an offence committed before the Constitution came into force. So far as past acts are concerned, the law exists.”

Therefore, if a law becomes void from the applicability of the Constitution, as it is inconsistent with the rights imbibed in part III, it will still apply to citizens and non-citizens who committed an offence under the said law.

Do Non-Citizens have Access to Article 13(2)? 

Article 13(2) of the Indian Constitution says that the State must not make laws that are not in ‘consonance’ with the Constitution. And if the law drafted intervened with an individual’s fundamental rights, the said law will become void to the extent of the contravention. This is an express ground for judicial review after legislation.

The State Of Gujarat And Another v. Shri Ambica Mills Ltd. is one of the many cases that add to the conundrum of interpreting Article 13(2). For some context, in 1961, the State of Gujarat had enacted the Bombay Welfare Fund (Gujarat Extension and Amendment Act) following the bifurcation of the State of Bombay in May 1960.

The Amendment Act made several changes in the Bombay Welfare Fund Act 1953. The respondent, a company registered under the Companies Act (1956), raised ‘several contentions’. One of them posed that specific provisions of the Amendment Act ‘violated the fundamental right of citizen employers and employees under Article 19 (1)(f)’. Hence, the Act was not authorised under law and void under Article 13(2).

Among other things, the Constitutional Bench of the Supreme Court also had to answer if ‘Ambika Mill’, a non-citizen, could claim the law to be void or non-est based on Article 13(2).

On behalf of the Constitutional Bench of the Supreme Court, Justice Mathew observed that with the advent of the Constitution of India, special rights were given only to citizens, which render them protection against a post unconstitutional law.

But these provisions, although unconstitutional for the citizen, were not non-est for non-citizens like the employer in this case. The Court also observed with respect to Article 13(1), as interpreted by the Keshavan Madhava case, the word ‘void’ would not apply for non-citizen from pre-constitution laws.

With respect to Article 13 (2), the Court observed,

“Therefore, when article 13(2) uses the expression ‘void’, it can only mean void as against persons whose fundamental rights are taken away or abridged by law. The law might be ‘still-born’ so far as the persons, entities or denominations whose fundamental rights are taken away or abridged. Still, there is no reason why the law should be void or ‘still-born’ as against those who have no fundamental rights (meaning non-citizens).”

Do Personal Laws Fall under the Ambit of Article 13(3)?

Article 13(3)(a) includes any law including ordinance, order, bye-laws, rule, regulations, notification, custom or usage having in the territory of India the force of law. In a nutshell, the Clause is not exhaustive and shall contain all those laws that violate fundamental rights.

Article 13(3)(b) includes laws passed or made by the legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed.  It means the same thing as ‘existing law’ defined in Article 372 of the Indian Constitution.

Comprehensively and with a combined reading of both Clauses (2) and (3) (a) of Article 13, Clause (2) states that the State shall not make any law that violates the fundamental right of the individual. Clause (3) (a) states law includes custom and usage. The issue is custom and usage in a territory cannot be made by the legislature thereof. Then how is it included in the inclusive definition of law?

But here is where the language of the statutes is interpreted differently. And even the interpretation, in some ways, remains inconsistent.

In State of Bombay v. Narasu Appa Mali (1951), the Bombay High Court had to decide the validity of the Bombay Prevention of Hindu Bigamous Marriages Act 1946. The Court answered whether personal laws could be interpreted as ‘laws in force’ as mentioned under Article 13(3)(a).

Hon’ble. Justice M.C. Chagla felt that Article 13 (3) (a) uses the expression ‘law’ and not ‘personal law’. The issue was whether personal law should be included in Article 13 (3) (a) or Article 13 (3) (b). The former includes statutory law, and the latter is far wider, including all law enforced after 1950. The Court held:

“the expression “personal law” is not used in Article 13 because, in any opinion, the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars, and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution and so they did not intend to include these personal laws within the definition of the expression’ laws in force’.”

The Court, in this case, opined that personal laws could not be part of the inclusive definition of ‘law’ under Article 13.

However, in Ahmedabad Women’s Action Group v. Union of India (1997), the Supreme Court held that if religious personal laws are a part of the codified laws by the legislature, then the codification must be for the fundamental rights.

The quandary that begins from Narasu judgement continues to loom in the Triple Talaq judgement and even after that—further confusing the ambit and definition of law and ‘law in force’ in Article 13(3)(a) and (b).

In 2017, in Shayara Bano v. Union of India And Ors. (also called Triple Talaq judgement) the Hon’ble Supreme Court had an opportunity to observe the inclusion of personal laws in Article 13. But the Court believed that since Shariat law is a statutory law codified by the central legislative assembly, the rights with Muslim men to pronounce triple talaq and get divorced is arbitrary and unreasonable.

Justice Fali Nariman and J. Lalit were of the opinion that the 1937 Act fell under the expression ‘law in force’ under Article 13(3)(b). And therefore, the Triple Talaq law was pronounced inconsistent with the Indian Constitution. Justice Nariman also doubted the interpretation of Narusu Judgement that drew a difference between the two kinds of laws.

In 2018, Indian Young Lawyers Association v. The State Of Kerala, also called the Sabarimala Case, dealt with the same question. The Court, in this case, said that the ‘individual’ is at the heart of the Indian Constitution, and as far as any law affected the individual, it could fall under Article 13(3). The Court observed:

“As per Article 13(3)(a) of the Constitution, “law” includes custom or usage, and would have the force of law.”

The Court had said that prohibiting women of 10-50 years of age in the Sabarimala Temple under a custom is not reasonable or ‘universal’. And all valid customs must be ‘reasonable, certain and continous’.

Looking at Article 13 vis-à-vis the Basic Structure Doctrine

On one side, Article 13(2) of the Indian Constitution says that the Parliament cannot make a law that takes away or abridges fundamental rights. On the other, Article 368 gives the Parliament the power to amend the fundamental rights by a special majority in the Parliament.

In I. C. Golaknath & Ors vs the State Of Punjab, the Court dealt with whether exercising power under Article 368 can nullify the effects of Article 13 of the Indian Constitution; and whether Parliament had the power to amend Part III of the Constitution.

In its order, the majority Bench of six to seven held that every constitutional amendment also partakes the same features as a normal statute. Therefore, it is covered under Article 13 (3) (a).

Once it is covered, the limitation of Article 13 (2) comes into the picture, which states that ‘the State shall not make any law which takes away or abridges the rights’. Then no such amendment could be made that abridges any part of the Constitution.

Although the Court in the Golaknath case held that the Parliament had no power to amend Part III of the Indian Constitution, the Parliament responded by enacting the Twenty-fourth Constitutional Amendment. Using which the Parliament inserted a new Clause to Article 13; Article 13(4).

Article 13 (4) read:

“Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality”

The Validity of the Twenty-Fourth Amendment was further challenged in Kesavananda Bharati v. State Of Kerala And Anr (1973). In which a majority Bench of 7 to 6 overruled the Golak Nath case.

The Hon’ble Court held that the power to amend was prior to the Twenty-Fourth Amendment (Article 368). It further observed:

“The Amendment just made it explicit and declaratory. The term “Amendment” per se postulates that the original Constitution must survive with its basic features”.

Hence, the basic features were enumerated by J. Sikhri, which, however, was not exhaustive. These Basic Features, if touched upon, will declare the law or the Act to be void and accordingly unconstitutional.

The meaning of Article 13 may appear to be simple at first glance, but over the years, its purpose and definition have undergone several interpretations. Article 13 and its ambit have developed with every case that discussed its implications on both pre-and post-colonial laws. It has been vital for our Constitution as it successfully made several repressive laws void, and in some cases, inoperative.

Further, it is essential to remember that the legislature cannot encroach upon judicial review under Article 368. It is an inherent and implied limitation on the legislature’s power of constitutional amendment

This piece has also implicitly applied the importance of judicial review, responsible for clearly reading Article 13 to shield fundamental rights. Although the case laws interpreting Article 13 has been inconsistent, it does answer some important questions.

4 thoughts on “Analysing the Ambit and Meaning of Article 13: How Did the Judiciary Interpret It?”

  1. It is very speaking article on the Article 13, I liked the way authored traced it’s developments. I’m thrilled to write these words here. The sense of pleasure after reading such a good article motivated me to write review. It is digestable and awesomely written piece. Thanks and my wishes

    Reply
  2. Fundamental rights should not carry exceptions. We can see usa constitution that usa fundamental rights dose not have any exceptions.

    Reply

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