Author: Shreya Gupta, Dharmashastra National Law School
TO THE POINT
Article 13 is the most unique in the Indian Constitution because it does not provide a law per se, but puts a limitation upon the legislature to ensure that the law created does not infringe or transgress the fundamental rights of the citizens enumerated under Part III of the Indian Constitution. It reaffirms that rights remain justifiable, i.e. enforceable in the court of law. Article 13 of the Constitution of India holds a pivotal place within the framework of the Indian Constitution for having dual functions. In its role as a shield, Article 13 guards persons against the performance of concentrated, oppressive, or arbitrary legislation that violates the fundamental rights of persons. It protects persons against pre-constitutive and post-constitutive laws that work contrary to Part III. In its role as a sword, Article 13 equips the judiciary with the power to strike down such laws on the basis of constitutional interpretation, thereby ensuring that parliamentary supremacy is subject to constitutional supremacy.
The historical odyssey of Article 13 and the struggle to balance the supremacy of the Constitution with the sovereignty of Parliament thus asserts that basic rights permeate the inviolable nucleus of the Indian Constitution itself.
ABSTRACT
The Article 13 of the Constitution of India remains the basis of the judicial review and the judicial enforceability of the fundamental rights guaranteed by the Indian Constitution. It is stated that the “all laws inconsistent with or in derogation of the fundamental rights, if any, be made after the commencement of this Constitution, shall be void to the extent of such inconsistency.” This article attempts to critically assess the Article 13 and in doing so, introduces the dual approach through the metaphorical representation of being both ‘a sword’ and ‘a shield.’ The Article 13 remains a shield to the individual liberties when it comes to unconstitutional action by the State, but when it comes to striking down the unconstitutional law, it becomes the sword in the hands of the judiciary. This article attempts to clarify the scope and the evolving jurisprudence over the Article 13 and the importance it plays in the constitution’s supremacy over the instruments and the relationship between the legislature and the judiciary.
USE OF LEGAL JARGON
Article 13(1) gives effect to the principle of constitutional supremacy by bringing all forms of “law” within the discipline of fundamental rights adjudication. As a provision, therefore, Article 13(1) operates as a substantive limitation upon the constituent and legislative powers of the State since it invalidates an exercise of law-making authority insofar as such exercise transgresses the freedoms guaranteed by Part III. The expression “law” in Article 13 has been interpreted judicially to take within its sweep not only statutory enactments but also ordinances, bye-laws, rules, regulations, notifications, customs, and usages having the force of law.
Article 13 operates as a negative injunction against the State, restraining it from applying unconstitutional norms. Laws inconsistent with fundamental rights are either void ab initio or void to the extent of inconsistency, depending upon whether they are pre- or post-Constitutional enactments. The protection afforded by this provision thus extends to every citizen by not subjecting him to unconstitutional compulsion or deprivation of rights.
On the other hand, the effect of Article 13 is that of a sword in that it gives the judiciary the power of judicial review, which is one of the essential attributes of the Constitution. In this way, the Supreme Court gets the power to strike down acts of parliament and the executive that infringe the basic rights guaranteed by the Constitution. This ensures that the judiciary becomes the sentinel on the qui vive that maintains the sanctity of the Constitution. The conflict between interpretation on whether the amendments to the Constitution can be brought within the meaning of ‘law’ in the scope of Article 13 has had a profoundly major influence on Indian constitutional law that led to the evolution of the ‘Basic Structure Doctrine’. In this way, it can thus be noted that the effect of Article 13 is not only declaratory but enforceable.
THE PROOF
The importance of Article 13 to the Indian Constitution can also be deduced by its consistent application by the courts to invalidate the Constitutionality of laws and actions taken by the government. The application of Article 13 by the Supreme Court of India through its judgments also appreciates the significance of Article 13, which acts as the key to enforce the fundamental rights of citizens through judicial review. The consistent striking down of laws for being violative of Part III also appreciates the applicability of Article 13 to the Constitution of India. Another aspect of appreciating the importance of Article 13 to the Constitution of India lies in its application by the Supreme Court of India in relation to the fundamental rights of citizens, such as liberty, freedom of speech, and equality, among others.
CASE LAWS
State of Bombay v. Narasuappa Mali (1951) – This case questioned the validity of the Bombay Prevention of Hindu Bigamous Marriages Act 1946, which prohibits bigamous marriages amongst the Hindus. The case carved out the principle that personal laws are not covered within the ambit of expression “laws” and “laws in force” contained under Article 13, unless they are codified laws. Only the codified customs that have the force of law should be subjected to fundamental rights, and not all.
IC Golaknath v. State of Punjab (1967) – This case dealt with the primary question of whether constitutional amendments are law or not. Though the 11-judge bench held that constitutional amendments fall under the ambit of “law” but the power of the Parliament to amend the Constitution is limited. Justice K. Subba Rao upheld that the power to amend the Constitution is a law-making power, instead of a constituent power. Article 13 acts as a shield protecting the fundamental rights of citizens from legislative erosion.
Kesavananda Bharti v. State of Kerala (1973) – This is a landmark case of the Indian Judiciary, presided over by 13 judges, which overruled the decision of IC Golaknath, upholding that the power to amend the constitution is a constituent power. This case reconciled parliamentary power with constitutional supremacy by propounding the basic structure doctrine, tracing its origin from the Preamble. The Preamble acted as a wall, within which the amendments had to be made. Article 13 acts as a sword whereby safeguarding constitutional values.
CONCLUSION
Article 13 represents the constitutional pivot on which hangs the scale of power and liberty. As a sword and a shield, Article 13 provides that the rights laid down in the Constitution are not only guaranteed on paper but also enforced in practice. The voiding of all such laws that are at variance with Part III of the Constitution by Article 13 maintains the order of the Constitution and affirms the supremacy of the subordination of all agencies of the state to the limitations of the Constitution. The development of the jurisprudence of Article 13 illustrates the ever-important presence of the judiciary in the effort to hold the democratic polity accountable. In other words, Article 13 enables the Constitution to become a living document that represents justice and undertakes to guarantee the inviolability of the promise of the provision of fundamental rights.
FAQS
QUESTION 1: WHY IS ARTICLE 13 CALLED THE ‘CORNERSTONE’ OF JUDICIAL REVIEW IN INDIA?
The Article 13 gives a constitutional basis for judicial review in that it invalidates those laws inconsistent with the basic rights. The Article gives courts the power to examine the constitutional validity of actions of both legislative and executive organs in relation to Part III of the constitution. This Article ensures that basic rights will not be of a declaratory nature. The Article gives supremacy of the constitution supremacy over supremacy of parliament.
QUESTION 2: IN WHAT MANNER DOES ARTICLE 13 ACT AS A GUARANTEE FOR FUNDAMENTAL RIGHTS?
Article 13 safeguards persons by preventing the execution of laws which violate the basic rights guaranteed to citizens. It nullifies the pre-constitutional laws and declares the post-constitutional laws null and void to the extent to which they are unconstitutional. This protective role provides a check on arbitrary state action. It upholds and safeguards the civil liberties because unconstitutional laws do not have any legislative existence.
QUESTION 3: IN WHAT WAYS DOES ARTICLE 13 HAVE A SWORD-LIKE APPLICATION?
Through Article 13, the judiciary has the capacity to declare laws that are unconstitutional null and void through judicial review. This is because the judiciary can validate laws or actions by the executive that contravene the principles of human rights. This ensures that the State actors are under the control of the constitutional system. Thus, Article 13 can be used as both an offensive and defensive constitutional mechanism.
QUESTION 4: ARE CONSTITUTIONAL AMENDMENTS VALIDATED THROUGH ARTICLE 13?
The application of Article 13 to amendments to the Constitution was developed. In early cases, amendments were not governed by Article 13. Later cases applied substantive restrictions on amendments. Through the basic structure doctrine, amendments cannot abrogate fundamental Rights that are part of the basic structure of the Constitutions. Judicial Review still applies despite Parliament’s power of amendments. Hence, constituent power is indirectly limited by Article 13.
