Article 13: Laws Inconsistent with Fundamental Rights

Held. By a majority, article 13(1) does not make an existing inconsistent law void ab initio. It renders such a law ineffectual and void only with respect to the exercise of fundamental rights, and only on and after the commencement of the Constitution. It has no retrospective effect. So an act done before the Constitution, in contravention of a law that was valid at the time, may still be prosecuted and punished after the Constitution comes into force. Fazl Ali and Mukherjea JJ. dissented.

Why it matters. It settles the temporal reach of article 13(1), and it establishes the proposition on which eclipse depends: "void" in article 13(1) means unenforceable going forward, not obliterated. A pre-Constitution law remains on the statute book and remains effective for everything it did before 26 January 1950, and for anything the fundamental rights do not touch.

Two corollaries follow and are examinable. A pre-Constitution law inconsistent with a right conferred only on citizens remains fully effective against non-citizens, because as to them there is no inconsistency. And article 13(1) operates only on the inconsistency: the rest of the law stands, which is where severability comes in.

What counts as "law"

Article 13(3)(a) is deliberately wide, and the width is the point: a prohibition that applied only to statutes could be evaded by using any other instrument.

Included expressly: an Ordinance, an order, a bye-law, a rule, a regulation, a notification, and custom or usage having the force of law.

Included by decision: the regulations of a statutory corporation.

Facts. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, (1975) 1 SCC 421, decided 21 February 1975. Employees of the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation were removed from service contrary to the regulations framed under the Acts constituting those bodies, and claimed a declaration that they continued in service rather than damages.

Held. The regulations have the force of law. They are subordinate legislation made under a specific statutory power, binding on the bodies themselves, which have no free hand to depart from them, and are not merely terms of a contract of employment. It follows that the employees hold a statutory status. The three bodies are also authorities within article 12.

Why it matters here. Their regulations are therefore law made by the State, so article 13(2) applies to them and a regulation that abridges a fundamental right is void. It also shows how far article 13(3)(a) reaches: the instrument need not be a statute or even a rule made by government.

Custom and usage. Expressly included where it has the force of law. Whether personal law, meaning the religious law of a community as distinct from a custom, is "law" for article 13 is a distinct and unresolved question, and it belongs with [Women, Religion and Personal Law] rather than here. An answer should note that it is open rather than assert an answer.

Administrative instructions that do not have the force of law are generally not "law" for article 13, though State action taken under them is still State action and is tested against Part III directly.

Article 13(4) and constitutional amendments

Article 13(2) forbids the State to make any law taking away or abridging Part III. Parliament is the State. Is a constitutional amendment a "law"?

The question produced the longest argument in Indian constitutional history: the early view that an amendment is not law for article 13(2); the reversal holding that it is, so that Parliament could not abridge a fundamental right; the Twenty-fourth Amendment, which inserted article 13(4) providing that nothing in article 13 shall apply to any amendment made under article 368, and correspondingly amended article 368; and the eventual answer that Parliament may amend any provision but may not damage the basic structure.

That sequence is [The Amending Power] and [The Basic Structure], and it should be cross-referenced rather than compressed here. What belongs in this chapter is the narrow point: since the Twenty-fourth Amendment, article 13 does not apply to a constitutional amendment, and the limit on the amending power is not article 13 but the basic structure doctrine.

Article 372 and the continuance of existing laws

Article 13(1) operates on "laws in force" and article 372 is what keeps them in force to operate on.

Article 372(1) provides that notwithstanding the repeal of the enactments referred to in article 395, all the law in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered, repealed or amended by a competent legislature or other competent authority. Article 372(2) empowered the President, for a limited period, to make adaptations and modifications to bring such laws into accord with the Constitution.

So the scheme is: article 372 continues the old law; article 13(1) tests it against Part III and renders it void to the extent of any inconsistency; and article 13(2) governs everything enacted afterwards.

The order of enquiry

For any challenge, four questions in this order.

One, is the actor "State" within article 12? If not, Part III does not bind it directly, and the enquiry moves to article 226 and the public duty route.

Two, is the impugned instrument "law" within article 13(3)(a)? A statute, an Ordinance, a rule, a regulation, a bye-law, a notification, or a custom with the force of law. If it is not law, the action is still tested as State action, but article 13 does not operate on the instrument.

Three, was it made before or after the Constitution? Before, and article 13(1) applies prospectively on Keshavan Madhava Menon. After, and article 13(2) applies as a prohibition on power.

Four, how much is void? Only "to the extent of the inconsistency" or "to the extent of the contravention". That is severability, in the next chapter.

A worked example

A pre-Constitution Act punishes the publication of specified political material. In 1949 X publishes such material and is prosecuted; the trial is still pending on 26 January 1950. In 1951 the same Act is applied to Y, a non-citizen, and in 1952 to Z, a citizen. Assume the Act is inconsistent with article 19(1)(a), which is a right of citizens only.

X. Article 13(1) is prospective. On Keshavan Madhava Menon it does not make an existing inconsistent law void ab initio; it renders it ineffectual only with respect to the exercise of fundamental rights and only on and after the commencement of the Constitution. X's act was done in 1949 under a law then valid, and the prosecution may proceed.

Z. The Act is inconsistent with a right Z holds, so as against Z it is void to the extent of the inconsistency from 26 January 1950. The prosecution fails.

Y. Article 19 is conferred on citizens only. As against a non-citizen there is no inconsistency at all, so the Act remains fully effective and the prosecution succeeds. This is the corollary of Keshavan Madhava Menon that most answers miss.

Suppose the Constitution is later amended so that the restriction becomes permissible. The Act is not dead and needs no re-enactment: on Bhikaji Narain it was overshadowed, not obliterated, and when the shadow lifts it operates again.

And if the same Act had been passed in 1955? Then article 13(2) applies, the legislature had no power to make it, and the analysis is different. Whether eclipse can help is the Deep Chand question, and the answer given is that it can where the right is conferred on citizens alone.

Quick revision

• Article 13(1): pre-Constitution law is void to the extent of inconsistency with Part III. Article 13(2): the State shall not make any law taking away or abridging Part III, and such a law is void to the extent of the contravention.
• Keshavan Madhava Menon: article 13(1) is prospective, not retrospective. An offence committed before the Constitution under a then valid law may still be prosecuted.
• "Law" in article 13(3)(a) includes an Ordinance, order, bye-law, rule, regulation, notification and custom or usage having the force of law.
• Sukhdev Singh: the regulations of a statutory corporation have the force of law, so they are within article 13.
• Whether personal law is "law" for article 13 is unresolved and should be presented as open.
• Article 13(4), inserted by the Twenty-fourth Amendment, takes constitutional amendments outside article 13. The limit on amendment is the basic structure, not article 13.
• Article 372 continues pre-Constitution law; article 13(1) then tests it.

Test yourself

1. What is the difference in character between article 13(1) and article 13(2), and what doctrinal consequence follows?

2. State the holding in Keshavan Madhava Menon and its two corollaries.

3. What does "law" include under article 13(3)(a)? Name two things included by decision rather than by the words.

4. What did article 13(4) do, and what is now the limit on the amending power?

5. How do articles 372 and 13(1) work together?

6. Set out the four questions, in order, for any challenge under article 13.