A BRIEF ANALYSIS ON ARTICLE 13 AND ARTICLE 368  OF INDIAN CONSTITUTION

Author -DEBOSMITA DAS, AMITY UNIVERSITY KOLKATA 

ABSTRACT : 

Composition 13 and composition 368 has been an controversial content in the history of Indian Constitution. The constitution of Indian is one of the most fascinating documents on this earth. But despite being so comprehensive, the reason why this document is so  intriguing is due to the fact that it’s extremely flexible. The fathers of our constitution made it so, they wished that the constitution would not only  prop  the country to grow but it would also grow alongside it. therefore, the government can amend the constitution depending on  colorful issues brought up. These powers are given by Composition 368. also, agitating Composition 13 of the Indian Constitution becomes  pivotal to realise Locke’s words  fully. Composition 13 aids the court and citizens to keep the powers of the council under exercise

 INTRODUCTION : 

The interplay of Composition 13 and Composition 368 of the Indian Constitution has always been a controversial matter. There’s a constant clash between the Supreme Court of India and the council. The deeper we dive into this content we will be  suitable to find several  emendations made by the state to secure itself, or to make itself vulnerable, on the other hand we can see the Supreme Court of India making several attempts to put certain reasonable restrictions and check to the powers of the state. In Indian republic, it’s an important aspect so that the administration of justice and the functioning of the bar isn’t made  inapplicable by the other organs of the state. Article 13 deals with the laws in  denigration of the Fundamental Rights, and Article 368 provides for correction of the Constitution and the procedure for the same. The  compass of amending the Constitution was there for a long time, and  also came the question of whether the abecedarian rights can be amended at all. This composition discusses the interplay of Articles 13 and 368 thereby helping  compendiums  understand the Doctrine of Basic Structure in regard to the Indian bar. 

24TH AMENDMENT ACT : 

 Lets  bandy the  papers in detail  24TH Amendment ACT  The principle of implicit restrictions on congress’s power was recognised, and legislative supremacy was reduced to some extent. Parliament  legislated a slew of indigenous  variations in order to demonstrate its supremacy. On November 5th  1971, the Constitution 24th  Amendment Act was approved. The purpose of this Correction was to overrule the Supreme Court’s ruling inI.C. Golak Nathv. State of Punjab, which stated that Parliament couldn’t  circumscribe Fundamental Rights in any way. Parliament doesn’t have the authority to abolish or limit indigenous  boons, according to a Special Bench of 11  judges. The government argued that this ruling would  help it from successfully  enforcing the Directive Principles of State Policy, which in some situations amounted to an  violation of abecedarian rights. papers 13 and 368 of the Constitution were amended by the 24th Correction, allowing Parliament to freely amend the Fundamental Rights.  Any law that was  inharmonious with the Fundamental Rights was declared unconstitutional under Composition 13. The Supreme Court concluded in Golak Nath that the term “ law ” covered indigenous  emendations; as a result, any indigenous  revision that infringed the Fundamental Rights was declared unconstitutional. As a result, Parliament would be  unfit to limit Fundamental Rights by indigenous  variations. The medium for amending the Constitution is outlined in Composition 368. Any indigenous  revision could only take effect under the original Constitution if two conditions were met first, two- thirds of the members of each House of Parliament  suggested in favour of it; and second, it  attained the President’s  concurrence, which he might withhold.      The following  variations were made as a result of the correction   

ALL ABOUT ARTICLE 13 : 

The Indian Constitution’s Article 13 discusses the four guiding principles of basic rights. It is true that basic rights were established on January 26, 1950, the day the Indian Constitution went into effect. As a result, fundamental rights were effective on this date alone.

• Article 13 (1) discusses pre-constitutional laws, or laws that were in place before the constitution was created. Since there were a lot of laws in the nation at the time and the fundamental rights also came into being when the constitution was created, any laws that were in place prior to the constitution’s creation had to demonstrate that they were compatible with the fundamental rights in order to be deemed valid.

The Education Act, which was passed in 1930, states that certain children will not be given education based on their caste because they belong to a backward class and have no right to attend school with members of the upper caste or upper class. For example, Article 15 of the Constitution guarantees everyone the right to an education without exception, regardless of sex, religion, or any other factor. This act is hereby deemed to be invalid since it conflicts with basic rights.  Furthermore, rather than being retroactive, clause 13(1) is prospective in character. 

In determining whether Article 13 applied retroactively to laws that infringed basic rights, the Supreme Court first construed Article 13 (1). In Keshavan Madhava Menon v. The State of Bombay (1951), a seven-judge panel heard the appeal of a petitioner who had been accused under the Indian Press (Emergency Powers) Act, 1931.

• Article 13(2) discusses post-constitutional laws, or those enacted after the constitution was draughted and legislation passed thereafter. It states that after the constitution went into force, no state could pass legislation that restricted or eliminated a person’s basic rights; if this was done, the law would be unconstitutional to the fullest degree allowed by the constitution. 

The Indian Constitution’s Article 13(2) states that the State cannot pass laws that are not “consonant” with the document. Furthermore, a law would be invalid to the degree that it violated someone’s basic rights if it was created in such a way. This is a particular defence of judicial review after legislation.

Article 13(2) discusses post-constitutional laws, or those enacted after the constitution was draughted and legislation passed thereafter. It states that after the constitution went into force, no state could pass legislation that restricted or eliminated a person’s basic rights; if this was done, the law would be unconstitutional to the fullest degree allowed by the constitution. 

•  Article 13(3) defines laws, meaning that any laws, notifications, rules, regulations, customs, signs, usages, etc. that affect citizens’ legal rights fall under the definition of law and are therefore deemed laws under article 13. However, there are two exceptions to this rule: administrative and executive orders are covered under article 13 if their purpose is simply to provide instructions or guidelines, in which case they are not covered under article 13. The second exception is personal laws, such as Muslim and Hindu laws, that are not covered by the article’s amit. 

It was up to the Bombay High Court to decide the constitutionality of the Bombay Prevention of Hindu Bigamous Marriages Act 1946 in the case of State of Bombay v. Narasu Appa Mali (1951). Regarding whether personal laws might be regarded as “laws in force” under Article 13(3)(a), the Court offered a response. According to Hon. Justice M.C. Chagla, “personal law” was not included in the definition of “law” as stated in Article 13 (3) (a). 

•  Article 13(4) of the Indian Constitution discusses the 24th modification, which states that no law issued in accordance with Article 368 of the Indian Constitution may be challenged under Article 13. Furthermore, if the modification in question violates any basic rights, it cannot be challenged under Article 13. 

The Landmark Doctrine, also known as the Doctrine of Basic Structure, was established by Article 13(4), which also forbids the parliament from passing legislation or amending existing laws in a way that violates basic rights.

ALL ABOUT ARTICLE 368 : 

Article 368 of the Indian Constitution deals with amendment by a special majority and ratification. It states that any article may be added to, altered, or repealed by Parliament in compliance with the established method. Article 368(2) permits an amendment to be submitted in either house of parliament. In addition to the approval of at least two-thirds of the members of that House, it must be approved by the majority of all members who are present and voting.

Article 368 of the Indian Constitution gives the Parliament of India the power to amend the Indian Constitution and its procedures. It is difficult to modify the Indian Constitution, because doing so requires following extra regulations. Parliament is authorised to alter it while preserving its fundamental framework under article368. Article 368 of the Indian Constitution lists two categories of amendments. A simple majority in both the Lok Sabha and the Rajya Sabha is needed for the first type of amendment; a special parliamentary majority is needed for the second type; and 50% of the state’s population is needed for the third type of amendment. Time is a dynamic concept that is never static. There should be revisions to the Constitution. The demographic’s social, cultural, and political landscape is starting to shift. The failure to enact the constitutional modifications will leave us ill-prepared to face future difficulties and act as a barrier to advancement. There is a reason why our ancestors wrote the Constitution in the robust manner that it is today. To make sure the plans adjust for the country’s growth. Because of this, Parliament is free to change any part of the Constitution that it deems appropriate in line with Article 368.

ARTICLE  13 AND ARTICLE 368 OF THE INDIAN CONSTITUTION : 

The Constitution has to be updated to reflect the changing social, economic, and political landscape and to satisfy current aspirations. But because to the Parliament’s limitless amending powers, the administration may change the text of the country’s supreme law to suit its needs. This gives the government the freedom to exercise its power in an arbitrary manner, which might lead to human rights abuses and threaten democracy. Every time the Parliament has tried to amend the Constitution in order to get unrestricted authority, the justices of the Supreme Court have always been able to foresee possible results that would be harmful to the nation and its citizens thanks to their keen brains. Then, in order to remind the Parliament that the Constitution is the supreme law of the land and the foundation of all the power of the Parliament. A synopsis of some of the significant Supreme Court decisions and modifications that paved the way for the “basic structural doctrine” may be found below.

1. SHANKARI PRASAD VS UNION OF INDIA : 

This came up through the 1st amendment act 1951, the main question arised that whether parliament can amend any part of the constitution or not .

The apex court says that yes, parliament can amend any part of the constitution .

2. SAJJAN SINGH VS STAE OF RAJASTHAN : 

The constitutionality of the Seventh Amendment Act was questioned; once more, this amendment led to a big question that whether parliament can amend fundamental rights or not. The apex court held that yes parliament can amend constitution as well as the fundamental rights , i.e. the basic human rights. Hence the Sajjan Singh’s judgement was upheld.

3. GOLAKNATH VS STATE OF PUNJAB: 

A 11 judge bench was set up to decide the case, this case overruled the previous two judgements and also the “ definition “ of law, it amended and included that no such amendment by the constitution can amend fundamental rights. Hence parliament cant amend fundamental rights. Here the apex court didn’t made any difference between constituent power and ordinary legislature . 

4.  KESHAVANANDA BHARTI VS STATE OF UP : 

The Keshavananda Bharti case challenged the 24th amendment act. This case has always remained as a landmark case in history of Indian constitution. The case was led by 13 judge bench . the case led to Doctrine Of Basic Structure , i.e. which says that parliament can amend the fundamental rights but not the basic structure of the constitution. It says that parliament can only amend the constitution but can not re-write the constitution. And further says that power to amend isn’t power to destroy. 

5.  INDIRA GANDHI VS RAJ NARAIN : 

The issue revolved around to keep election matters out of perview of the court. The supreme court here applied the basic structure doctrine and struck down article 329A of Indian constitution that was inserted through the 39th amendment act . The 39th amendment act was during emergency and that was introduced by the Indira gandhis government in the parliament and was used to suppress the corruptions led by Indira gandhi’s government. 

6.  MINERAVA MILLS VS UNION OF INDIA : 

This case was another influencial case which strengthened the basic structure doctrine and led that constitution is supreme and also made parliaments amending power not absolute. Unlimited amending power of parliament was stroke down. And was made limited.

CONCLUSION : 

The debate above makes it rather evident that there have been substantial changes to the Parliament’s authority to modify legislation. It was necessary to go into the legal history in order to determine if and to what extent the Parliament can alter basic rights. the creation of the “basic structure” hypothesis, in which we looked at the court’s pointless attempt to draw limitations from Article 368 and an amendment’s phrasing. The court found that some, but not all, of the fundamental rights are included in the basic framework and determined that the restricted modifying authority itself is a component of it. The national legal system: modifying authority after the hypothesis of “basic structure.” The extent to which basic rights can be amended has been determined by a set of standards established by the court. In summary, the Parliament cannot alter a fundamental right if any component of it passes the twin test, so signifying that it is a part of the “basic structure.” Under the existing legal framework, the court cannot alter basic rights on the grounds of equality, social justice, rationality, or secularism.