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Article 13 : A Road That Was Too Long

Article 13 : A Road That Was Too Long
- Sonalika Nigam, Parul University, Vadodara

Article 13 of the Indian Constitution broadly talks about - \'The laws inconsistent with or in derogation of the fundamental rights\'. It is based on four pillars (legally called \'clauses\')  and each of the pillars have their own importance. Article 13 was referred to as ‘Draft Article 8’  while discussing it in the Constituent Assembly. It was debated for three days i.e., 25th, 26th and 29th November, 1948, in the Assembly consisting of various representatives, scholars and reformers. 

The Chairman of the Drafting Committee, Dr. B. R. Ambedkar, moved an amendment pertaining to the terms “law” and “laws in force” to define them more explicitly and clearly. His original words and the exact reason for this amendment are –   Sir,  the reason for bringing in this amendment is this: It will be noticed that in article 8 there are two expressions which occur. In sub-clause (1) of article 8, there occurs the phrase “laws in force”, while in sub-clause(2) the words “any law” occur. In the original draft as submitted to this House, all that was done was to give the definition of the term “law” in sub-clause (3). The term “laws in force” was not defined. This amendment seeks to make good that lacuna. What we have done is to split sub-clause (3) into two parts (a) and (b), (a) contains the definition of the term “law” as embodied in the original sub-clause (3), and (b) gives the definition of the expression “laws in force” which occurs in sub-clause (1) of article 8. I do not think that any more explanation is necessary.

Another learned member of the Assembly, Shri. Naziruddin Ahmad, sought to an amendment to remove the words “custom or usage having the force of law in the territory of India or any part thereof” from Article 13 because according to him,  “Custom means in law the usage which by continuance has acquired the force of law or right especially the special use of a locality, trade, society or the like.” This request was turned down by the Hon\'ble Chairman citing the correct explanation for these words. 

To remove the doubts and to keep all the absurdities aside, Dr. Ambedkar moved a second amendment (with the support of the Assembly) which added the words- “Unless the context otherwise requires” after the words “In this article” in the- then Draft Article 8. This amendment was accepted without any hot debate. Finally, after undergoing a lot many discussions, debates and amendments, Draft Article 8 was adopted by the Constituent Assembly on 29 November, 1948.

The four clauses (pillars) are discussed here in brief :- 

Article 13(1) declares that all laws that were in force in the territory of India immediately before the commencement of the Constitution, i.e., before January 26, 1950, in so far as they are inconsistent with the provisions of the Fundamental Rights, shall to that extent of such inconsistency, be void. Hence, it can be grasped that all the laws that were operating before the commencement of the Constitution shall be null and void if found against or not in conformity with the Fundamental Rights i.e., Part III. 

To identify such laws that were inconsistent, “Doctrine of Severability” was propounded by the Supreme Court in the case of A. K. Gopalan v. State of Madras (AIR 1950 SC 27), where Section 14 of the Preventive Detention Act, 1950 was in question. It provided for the ‘severing\' of the inconsistent part from the consistent part of the law, meaning thereby, the part of any law that is in derogation of the Fundamental Rights guaranteed to the citizens, shall be separated out from the major part that is in promotion of the Indian Bill of Rights, popularly known as Fundamental Rights. 

While deciding the case of  Bhikaji Narain v. State of M. P. ( AIR 1955 SC 781), relating to the Berar Motor Vehicles (Amendment) Act, 1947, the Apex Court came up with another philosophy called “Doctrine of Eclipse”, whereby, it declared the inconsistent part of a law which violates the Fundamental Rights shall not become void but will only become unenforceable, i.e., it’ll exist and go into the dormant position. 

Article 13(2) proclaims and prohibits the State to make any ‘law’ that is in contravention to the Fundamental Rights and if any such ‘law’ is made, then it would be void. The existence of ‘law\' was very difficult to identify. There were a series of Cases (and one Constitutional Amendment) that went on to define what does ‘law\' include? 

1.In Shankari Prasad v. Union of India (AIR 1951 SC 458), the Supreme Court held that ‘law\' doesn’t include Constitutional Amendments. 
2.This ruling of the Hon. Supreme Court was reiterated in Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845).
3.But in I.C. Golakhnath v. State of Punjab (AIR 1967 SC 1643), the Court held that ‘law\' includes Constitutional Amendments. 
4.This discrepancy was visualised by the Parliament and hence,24th Constitutional Amendment Act, 1971 was brought that changed the heading of  Article 368 –“Procedure for Amendment of the Constitution” to “Power of the Parliament to amend the Constitution and procedure therefor”. It provided that ‘law\' in Article 13(2) doesn’t include Constitutional Amendments. 
5. The validity of this Amendment was upheld by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerela (AIR 1973 SC 1461) and it continues till date. 

Article 13(3) provides for the  definitions of :-

(a) ‘law’ = Ordinance, order, bye-laws, statue, etc. having the force of law in the Indian Territory. 
(b) ‘laws in force’ = Laws passed by a Legislature before the Commencement and not previously repealed. 

Article 13(4) was inserted by the 24th Constitutional Amendment Act, 1971 and makes it clear that Constitutional Amendments passed under Article 368 shall not be considered as ‘law\' within the ambit of Article 13 and hence, can’t be challenged merely by regarding them as infringements of the Fundamental Rights. 

Hence, Article 13 has travelled a breathless and an instantaneous long distance and that it was, it is and it would be an indispensable and integral part of the Indian Constitution that needs to be respected in all forms.

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