Constitution of India
Article 13: Laws inconsistent with or in derogation of the fundamental rights
Part III — Fundamental Rights
Clause (1)
WHAT IT SAYS: All laws in force in India before the commencement of the Constitution, to the extent they are inconsistent with Part III (Fundamental Rights), shall be void. WHAT IT MEANS: Pre-constitutional laws (e.g., colonial-era statutes) that conflict with any fundamental right become unenforceable from 26 January 1950 — but only the inconsistent portion, not the entire law. KEY DOCTRINE: Doctrine of Eclipse — such pre-constitutional laws are not dead but merely dormant (eclipsed); if the conflicting fundamental right is later amended or removed, the law revives automatically (Bhikaji v. State of MP, 1955).
Clause (2)
WHAT IT SAYS: The State shall not make any law which takes away or abridges the rights conferred by Part III; any such law shall be void to the extent of the contravention. WHAT IT MEANS: This is a prohibition on future legislation — any post-constitutional law violating fundamental rights is struck down as void ab initio (from inception) for citizens. KEY DOCTRINE: Doctrine of Severability (Separability) — only the offending portion of the law is declared void, not the entire statute, provided the valid and invalid parts can be separated (A.K. Gopalan v. State of Madras, 1950; RMDC v. Union of India, 1957).
Clause (3)
WHAT IT SAYS: Defines key terms: (a) 'Law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom, or usage having the force of law in India. (b) 'Laws in force' includes laws passed by a Legislature or other competent authority before the Constitution, not previously repealed — even if not then in operation. WHAT IT MEANS: The definition of 'law' is deliberately wide — it covers not just statutes but executive orders, customs, and usages. This ensures even non-legislative norms violating fundamental rights can be challenged. KEY DOCTRINE: Inclusion of 'custom or usage' was debated in the Constituent Assembly; its significance was affirmed in Indian Young Lawyers Association v. State of Kerala (2018, Sabarimala case), where a religious custom was held reviewable under Article 13.
Clause (4) — Added by the 24th Amendment Act, 1971
WHAT IT SAYS: Nothing in this article shall apply to any amendment of this Constitution made under Article 368. WHAT IT MEANS: Constitutional amendments are expressly excluded from the scope of Article 13. Parliament can amend fundamental rights through the Article 368 procedure without being hit by Article 13's 'void' consequence. KEY DOCTRINE: This clause was Parliament's direct response to I.C. Golaknath v. State of Punjab (1967). Its validity was upheld in Kesavananda Bharati v. State of Kerala (1973), but subject to the Basic Structure Doctrine — amendments cannot destroy the Constitution's basic structure.
Constitutional Inspiration
SOURCE(S): 1. United States of America — Judicial Review doctrine from Marbury v. Madison (1803) Original provision: The US Constitution has NO express provision declaring laws void for violating the Constitution; this power was judicially established by Chief Justice Marshall. What India kept: India made judicial review EXPLICIT via Article 13, unlike the US where it remains an implied power. 2. Article VI, Clause 2 of the US Constitution (Supremacy Clause) Original provision: The Constitution and federal laws are the 'supreme law of the land' and judges are bound thereby. What India kept: Article 13 similarly establishes constitutional supremacy over all other laws. INDIA'S SPECIFIC ADAPTATIONS: 1. Express textual provision — India codified judicial review in the text itself, unlike the US where it evolved through case law; framers wanted no ambiguity about the Constitution's supremacy. 2. Broad definition of 'law' including customs and usages — to address India's diverse social customs (caste-based practices, personal laws) that could violate fundamental rights. 3. Distinction between pre-constitutional and post-constitutional laws (Clauses 1 and 2) — necessary because India inherited a massive body of colonial-era British laws that needed to be tested against the new fundamental rights framework. 4. Clause (4) exempting constitutional amendments — an original Indian adaptation born from decades of Parliament-Judiciary conflict over amendability of fundamental rights (1951–1973).
Constituent Assembly Debate
DEBATED ON: 25, 26, and 29 November 1948 (CAD Volume VII) Draft Article Number: Draft Article 8 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee, Bombay) — Moved an amendment to explicitly define 'law' and 'laws in force' in Clause (3); clarified that including 'custom' in the definition of law did not mean the State could 'create' custom. 2. Mr. Naziruddin Ahmad (West Bengal) — Argued that including 'custom or usage' in the definition of law created an absurdity — it implied the State could make custom, since Clause (2) bars the 'State' from making 'law' and 'law' includes custom. Proposed substituting 'custom, usage or anything' for 'custom or usage'. 3. K.T. Shah (Bihar) — Advocated for broader fundamental rights protections and proposed additional clauses. MAJOR DISAGREEMENTS: 1. Inclusion of 'custom or usage' in the definition of 'law' — Naziruddin Ahmad argued it created an interpretive absurdity; Ambedkar clarified that Clause (3) applied to the whole of Article 8, not just Clause (2), and added qualifying words 'unless the context otherwise requires' to resolve the ambiguity. FINAL OUTCOME: Ambedkar's amended definition of 'law' and 'laws in force' was adopted on 29 November 1948; the qualifying phrase 'unless the context otherwise requires' was inserted to address Naziruddin Ahmad's objection. AMBEDKAR'S KEY QUOTE: Ambedkar stated that a person 'not properly instructed in the rules of interpretation of Statute may put the construction which my Friend Mr. Naziruddin Ahmad is seeking to put' and added qualifying words to resolve the doubt.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Shankari Prasad Singh Deo v. Union of India (1951) — Held that 'law' in Article 13(2) means ordinary legislation, NOT constitutional amendments under Article 368; Parliament can amend fundamental rights. 2. I.C. Golaknath v. State of Punjab (1967) — Overruled Shankari Prasad by 6:5 majority; held constitutional amendments ARE 'law' under Article 13 and Parliament CANNOT amend Part III. 3. Kesavananda Bharati v. State of Kerala (1973) — Overruled Golaknath by 7:6 majority; upheld 24th Amendment adding Clause (4); established the Basic Structure Doctrine — Parliament can amend fundamental rights but cannot destroy the Constitution's basic structure. 4. Minerva Mills Ltd. v. Union of India (1980) — Reaffirmed Basic Structure Doctrine; held that limited amending power is itself a basic feature of the Constitution. 5. L. Chandra Kumar v. Union of India (1997) — Declared judicial review under Articles 226 and 32 to be a basic feature; tribunals cannot exclude High Court/Supreme Court jurisdiction. 6. Keshavan Madhava Menon v. State of Bombay (1951) — Held Article 13(1) is prospective, not retrospective; pre-constitutional laws become void only from the Constitution's commencement, not from enactment. 7. Deep Chand v. State of UP (1959) — Held Doctrine of Eclipse does NOT apply to post-constitutional laws; such laws are void ab initio for citizens. 8. State of Gujarat v. Ambika Mills (1974) — Extended Doctrine of Eclipse to post-constitutional laws for non-citizens. 9. Indian Young Lawyers Association v. State of Kerala (2018) — Held customs like the Sabarimala temple ban on women fall within 'law' under Article 13(3) and are subject to judicial review. 10. Shayara Bano v. Union of India (2017) — Triple Talaq struck down; Justices Nariman and Lalit held the Muslim Women (Protection of Rights on Marriage) falls under 'laws in force' in Article 13(3)(b). NOTABLE DISSENTS: 1. Justice S.K. Das in Basheshar Nath v. CIT (1959) — Opined that if a fundamental right is purely personal and does not affect public interest, an individual should be allowed to waive it (majority rejected the doctrine of waiver of fundamental rights). 2. Five dissenting judges in Golaknath (1967) — Held that Parliament's constituent power under Article 368 was distinct from legislative power and not hit by Article 13. SCHOLARS & JURISTS: 1. C.J. Kania in A.K. Gopalan v. State of Madras (1950) — Observed that Article 13 was added as a matter of 'abundant caution'; even without it, courts could strike down unconstitutional laws. 2. H.M. Seervai (Constitutional Law of India) — Argued Article 13 merely declares the obvious — supremacy of the Constitution — but its explicit presence eliminates any ambiguity about judicial review power.