Article 13 And Laws Inconsistent With Fundamental Rights
ARTICLE 13 OF THE INDIAN CONSTITUTION
Article 13 is a crucial provision because it gives fundamental rights the teeth they need and makes them justiciable.
The effect of Article 13 is that the government cannot infringe on Fundamental Rights either through legislation or administrative action. It goes like this:
Article 13 [Laws that are incompatible with or infringe on fundamental rights]
1. All laws in force in India prior to the commencement of this Constitution, to the extent that they are inconsistent with the provisions of this Part, shall be void to the extent of such inconsistency.
2. The State shall not pass any law that deprives or restricts the rights granted by this Part, and any law passed in violation of this clause shall be void to the extent of the violation.
3. Unless the context dictates otherwise, in this article, -
a. "Law" refers to any Ordinance, Bye-law, Rule, Regulation, Notification, Custom, or Usage that has legal force in India's territory.
b. "Laws in Force" includes laws passed or made by a Legislature or other competent authority in the territory of India prior to the commencement of this Constitution that have not been previously repealed, notwithstanding that any such law or part thereof may not be in operation at all or in specific areas at the time.
4. This article does not apply to any amendments to the Constitution made pursuant to Article 368.
EXISTING LAWS INCONSISTENT WITH THE CONSTITUTION
This clause states that all “laws in force” at the time the Constitution was adopted that conflict with the exercise of the Fundamental Rights granted by Part III of the Constitution are void to the extent of the conflict. After the Constitution takes effect, any pre-constitutional law must comply with the provisions of Part III of the Constitution. Infringement of a fundamental right, on the other hand, cannot be justified on a remote or speculative basis.
However, this does not render existing laws that are incompatible with fundamental rights null and void.
Part III of the Constitution, including Art. 13(1), is a prospective document. As a result, existing laws that are in conflict with any provision of Part III are only declared void with effect from the date the Constitution, which for the first time established the Fundamental Rights, was enacted. As a result, the inconsistency referred to in Art. 13(1) has no bearing on transactions that occurred before the Constitution's inception, nor on the enforcement of rights and liabilities that had accrued under the 'inconsistent laws' prior to the Constitution's inception.
However, this does not imply that an unconstitutional procedure established by a pre-Constitutional Act must be followed in the case of 'pending' proceedings or new proceedings involving pre-Constitutional rights or liabilities. In the absence of any special provision to the contrary, there is no vested right in any course of procedure, and there is no vested liability in any matter of procedure.
However, if the proceedings were completed or became final before the Constitution was enacted, nothing in the Constitution's Fundamental Rights Chapter can be applied retroactively to those proceedings. For the same reason, it is impossible to challenge the legality of any part of the proceedings that took place prior to the Constitution's implementation under inconsistent law.
The effect of Article 13(1) is not to remove the inconsistency from the statute book for all times, purposes, or people. As a result, since the Constitution's inception, inconsistencies in the law have been unable to obstruct the exercise of fundamental rights by those who are entitled to them under the Constitution, as well as by those who have not been granted fundamental rights, such as aliens.
WHAT IS DOCTRINE OF ECLIPSE?
Any law that is incompatible with Fundamental Rights is not invalid, according to the Doctrine of Eclipse. It is not completely dead, but it has been eclipsed by the fundamental right. The inconsistency (conflict) can be resolved by amending the relevant fundamental right in the constitution, removing the eclipse and making the entire law valid.
When a part of the law is struck down by a court, it becomes unenforceable. As a result, a 'eclipse' is said to have been cast over it. The law simply becomes invalid, but it still exists. When another (most likely a higher level court) declares the law valid again, or when it is amended through legislation, the eclipse is lifted.
Doctrine of eclipse applied to Art. 13 (1)
• As a result, if the inconsistent provision is amended at a later date to remove its inconsistency with fundamental rights, the amended provision cannot be challenged on the basis that the provision was declared dead at the time of the Constitution's adoption and cannot be revived by the amendment. All acts taken under the law since the amendment will be valid, despite any inconsistencies that existed prior to the amendment.
• For the same reason, if the Constitution is amended later to remove the repugnancy, the challenged law becomes free of all blemishes as of the date of the amendment to the Constitution.
Although a pre-constitutional law is preserved under Art. 372 of the Constitution (continuance in force of existing laws and adaptations), a legal challenge to its validity based on the touchstones of Art. 14, 15, and 19 of the Constitution is permissible. The validity of a statute may be affected by changes in societal conditions, both domestically and internationally, over time.
POST-CONSTITUTIONAL INCONSISTENT LAWS:
What is MEANING OF void ab initio?
Art. 13(2) states that any law passed by a legislature or other authority after the Constitution's inception that violates any of the fundamental rights enumerated in Part III of the Constitution will be void to the extent of the violation.
Cl. (2), unlike Cl. (1), declares incompatible laws void from the start, and even convictions obtained under such unconstitutional laws must be overturned. Anything done under an unconstitutional law, whether closed, completed, or inchoate, will be wholly illegal, and the person affected by such an unconstitutional law must be given relief in some form. It is not resurrected by any subsequent event.
This does not mean that the offending statute is completely removed from the books. It continues to apply to people who are not entitled to the fundamental rights at issue (for example, a non-citizen in the case of a right guaranteed by Art. 19). Cl. (2) also does not allow the courts to intervene in the passage of a bill on the grounds that it would be void once enacted due to a violation of the Constitution. The Court's jurisdiction begins when the bill is signed into law.