Laws in derogation with fundamental rights

Article 13: Laws in derogation with fundamental rights will be void

Article 13 expressly sets the principle of the supremacy of fundamental rights over any other law in the case of inconsistency between the two. This can easily interpret the intention of the constitution makers to confine the application of fundamental rights to what Laws in derogation with fundamental rights is stated in this Article. For instance, pre-constitutional laws shall be invalid only to the extent they fall within the category of “law in force”. As uncodified personal laws do not fall within the category, it could be urged that they were not intended to become invalid in the ground of any inconsistency with the fundamental rights. 

The Clause 1 of Article 13 give rise to various doctrines of interpretation which are as follows:

No retrospective Effect

The provisions of the constitution pertaining to fundamental rights have no retrospective effect. The word retrospective means that intending to take effect from the past date. All the existing laws which are inconsistent, they will be void after the commencement of the constitution. 

Illustration: ‘A’ has committed an offence in 1946 which was punishable at that time, but later on after the commencement of the constitution in 1949 that offence was abolished as it was inconsistent with the fundamental rights. On this basis ‘A’ contended that he must be freed from the charges but the court did not allow it on the grounds that in 1946 the act committed by him was an offence. 

Rule of Severability

Article 13 does not make entire Act or statute to be void or inoperative rather it makes inoperative such provisions which are inconsistent with the fundamental rights. 

Illustration: Eight section of ‘XYZ’ Act were held ultra vires on the grounds that they infringed the fundamental rights of the citizen. However, the Act minus those eight provisions was allowed by the court to stand. 

Doctrine of eclipse

The existing law which is inconsistent with the fundamental right, though becomes inoperative at the time of the commencement of the constitution, is not dead altogether. In simple words the laws are overshadowed by the fundamental rights and remain dormant, but is not dead. The doctrine of eclipse which at one point of time was applicable only to pre constitutional laws but is now applicable on the post-constitutional laws also. 

Future laws

Clause (2) of Article 13 of the constitutions elaborates on the future laws i.e. the laws made after the commencement of the constitution. The state is prohibited from making law which takes away or abridged any right conferred by Part III of the constitution. A law made in contravention of clause (2) shall to the extent of the contravention will be void. This concept of void has eventually come to be considered as ‘relatively void’ or partially invalid. 

Sometimes the courts also apply their decisions prospectively. It means that though the law was found against the fundamental rights, they invalidate only for the future. Therefore the law is not declared void ab initio or nullity from the very beginning. 

Test of infringement of fundamental rights

In the Bank Nationalisation case the court was of the view that the theory that the object and form of the state action determines the extent of the protection which the aggrieved party may claim, was not consistent with the constitutional scheme which aims at affording the individual the fullest protection of his basic rights. The state action must therefore be judged in the light of its operation upon the rights of the individual and the group of individuals in all its dimensions. 

Under the constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of rights, the interest of the aggrieved party and the degree of harm resulting from the state action. 

However, the precedents does not clearly states when the effect of state action is direct and when it is indirect. Simply, the directness of the effect has to be judged with reference to the protected right or activity. If state action prohibits or restricts any activity which is not a fundamental right, then any effect on the fundamental right is indirect. 

Waiver of Fundamental Rights

To address the question of whether fundamental rights can be waived by a person who has it. In the case of Basheshar Nath v. CIT the fact of the case are that the petitioner has concealed large amount of his income. In order to escape from his liability the petitioner agreed to the settlement under Section 8-A to pay Rs. 3 lakhs in monthly instalments by way of arrears of tax and penalties. On the basis of Income Tax rules being ultra vires to the constitution thereby violative of Article 14 he is not supposed to pay the tax. It was held that right under Article 14 can not be waived. Since then the law has been settled that the fundamental rights can not be waived. 

Definition of Law

Clause (3) of Article 13 consist of the word ‘law’ and ‘law in force’. The law can be of the following kinds:

  1. Statutory Law: These are the laws which may be directly enacted by the legislature or by the other subordinate authorities under the delegated lawmaker powers. The delegated legislations appears under various names – rules, regulations, notifications, and bye-laws. 
  2. Customs: The term ‘law’ includes ‘customs’ and ‘usages’. In early times, custom was the main source of law but now to a large extent, it has been suspended by statutory law. However, custom has not wholly lost its law creating efficacy. A reasonable and certain ancient custom is binding on the courts like an Act of legislature. 

Constitutional Amendments

In Shankari Prasad Singh Deo v. Union of India the Constitutional (1st Amendment) Act, 1951, which amended the fundamental rights guaranteed under the constitution, which was challenged on the ground that since the amendment has the effect of abridging the fundamental rights it was not valid law within the meaning of clause (2) of Article 13. The contention was rejected by the apex court and held that the word ‘law’ in clause (2) did not include a law made by the Parliament under Article 368 amending the constitution. It was said that the word ‘law’ means the “the rules and regulations enacted by legislatures” and not the “constitutional amendments made in exercise of constituent powers.” Therefore, this judgement was followed by majority of judgements such as in Sajjan Singh v. State of Rajasthan.

However, in the case of Golak Nath v. State of Punjab, the apex court by 6:5 majority held that the word ‘law’ in Article 13 (2) included the amendment of the constitution and as a consequence, if an amendment abridged or took away fundamental rights guaranteed under Part III of the Constitution of India, the amending Act itself will become void and ultra vires. Subsequently, in the case of Kesavananda Bharati v. State of Kerala, the Supreme Court of India overruled the Golak Nath case and unanimously held that the Constitution (24th amendment) Act, 1971, which inserted clause (4) in Article 13 and clause (3) in Article 368 was valid. Therefore, all the judges agreed that the amended Article 368, all the provisions including those enshrining fundamental rights (Part III) could be amended. 

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