Article 13: Scope and interpretation

“Law and order are the medicine of body politic and when the body politic gets sick, medicine must be administered.”

                                                                                                                         -B.R Ambedkar

Fundamental rights are an integral feature of the Indian constitution. It seeks to protect certain basic rights of Indian citizens. Article 13[1] of the Indian constitution upholds the validity and supremacy of the constitution and the fundamental rights enshrined in part III of the constitution, making way for judicial review. There exists certain rules for the interpretation of article 13.They are as discussed below:

Analysing article 13

No retrospective effect

With respect to clause (1) of article 13, in the landmark case of Keshavan Madhavn Menon, 1951[2], courts now have established a well settled principle that fundamental rights do not have retrospective effect. The precedent set by the earlier mentioned Menon’s case was further reiterated in another case of Syed Qasim Razvi v. State of Hyderabad and ors[3]. The judgement of this case is summarized as, if any existing law prior to the commencement of the constitution which as such is in contravention of article 13 with the commencement of the constitution, an individual having committed an offence under such law also prior to the enforcement of the constitution against such a law cannot take the stand that that particular law stands invalidated for the violation of their fundamental rights and thus proceedings against them should be quashed. Similarly, nobody can be sued in court if they have acted within the scope of such previously inconsistent laws as long as it was before the commencement of the constitution. Any proceedings which may have started in relation to such an offence cannot be disturbed.

Doctrine of severability

  • Pre- constitutional laws

Any pre-constitutional law which is challenged in front of the court on the basis of violation of fundamental rights, if at all found inconsistent with it, will be struck down only as far as the inconsistent parts of that particular law[4]. If the law in general is good in nature then the courts mustn’t go out of its way to invalidate the entirety of the law but only the parts that stand inconsistent with the fundamental rights. Only if it seen that after that part of the law is repealed, the remaining part of the law stands to be read as insignificant, only then can the law in its entirety be struck down[5]. This is known as the doctrine of severability.

  • Post-constitutional laws

In contrast to clause (1) of article 13, clause (2) states that post-constitutional laws which are found to be in violation of the fundamental rights would be void ab intito, so laid down in the case of Mahendra v. State of U.P[6]. Clause (2) begins by stating that the state shall not many any laws which abridges any fundamental rights. Now, when the state makes any such law, it automatically violates fundamental rights then it is not valid (wholly or partially, need to look at the extent of contravention) even for once, unlike the pre-constitutional laws which were valid when they were made[7].

  1. Legislature’s right to amend laws:

The legislation has a choice to rectify any abnormality in a statute by means of amendment. Any law which attracts provisions of article 13 due to clashes with any of the fundamental rights, the legislature has full power to amend the constitution so that those laws can be fullyoperational. These amendments are not unconstitutional, as decided in one of the earliest cases ofSri Sankari Prasad v. UOI and state of Bihar[8].

Not long after, the courts grappled with the question whether fundamental rights also came under the power of the legislature to amend any part of the constitution. This question was first dealt with in the case of Golak Nath v. State of Punjab[9]The ruling made in this case was that as fundamental rights form a very important part of the constitution and if left unchecked, there was a chance for the legislature to misuse such power; came to the conclusion that part the constitution entailing fundamental rights cannot be put under article 13(2) of the constitution giving power to the legislature to amend them. However, this ruling in Golak Nath’s case was overruled in the case the subsequent landmark case ofKeshavananda Bharti v. state of Keralaand anr[10].The Indian constitution has time and time again been described as a rigid as well as flexible document. No man can foresee what the future brings us and it is important that rules change with changing times to ensure delivery of justice to everyone. Take the example of the Right to property which used to have the status of a fundamental right but now takes the title of only an ordinary law. The precedent established in Kesavananda Bharti case, with a majority of 7:6 of a 13 judge bench, the longest ever hearing and the longest ever reported judgement, was that while the parliament has the authority to amend any part on the constitution, it must do so without going against the basic structure of the constitution, denying the supremacy of the parliament. This was a landmark in what was the beginning of many subsequent cases that have attempted to lay down what the fine points of what the basic structure comprises of.

The addition of article 31B through the 1st amendment, 1951 to our constitution which gave protection to all laws added under the 9th schedule immunity from judicial review now posed a conflict with this basic structure doctrine, protecting constitutional framework and the fundamental rights propounded in the Kesavananda Bharti case. There was now a need to address these opposing rules. Did the laws under the 9th schedule also come under the scrutiny of the judiciary or will parliamentary immunity prevail over it[11]?

This burning question was finally answered in the case of I.R Colheo v. State of Tamil Nadu and ors.[12] This case in question, basically upheld the decision of ‘basic structure’ as propounded in the Kesavananda Bharti case. It recognised the caveat to the legislature in regards to making laws which came within the basic structure of the constitution as well as power of the courts to apply judicial review so recognised by the courts, including the laws which come under the ninth schedule. This case is popularly known as the ninth schedule case[13]

While judgements since Kesavananda Bharti case and other subsequent judgements pronounced up until the I.R Colheo case, have been hailed by many as “the case that saved Indian democracy”[14]. On the other hand there’s another school of thought that criticises the judgement. “This judicial doctrine has been criticized by scholars as a case of legislative powers being subsumed by the judiciary. In other words, an allegation of unelected judges assuming the role of elected representatives has been levied.”[15]

I disagree with the above criticisms, the judiciary is not trying to assume the role of the legislature to make laws, and it merely is enforcing the system of checks and balances to ensure that the parliament doesn’t make arbitrary use of its power.

  1. Test of infringement of fundamental rights

Since the entire crux of article 13 depends on determining whether fundamental rights have been violated by any statue, it is important to have guidelines to determine what counts as an infringement of part III of the constitution. In the case of Maneka Gandhi v. Union of India[16] the apex court decided that the effect of the statue in question must have a “direct and inevitable effect” on the fundamental right of an individual in order to claim protection against it. Arguments raised from petitioner’s side was that the impounding of her passport by the passport office was against her freedom of speech and expression under article 19(1) (a) of the constitution. The Supreme Court however, in applying the doctrine of ‘direct and inevitable effect ‘noted that there is no reason to believe that the petitioner was going abroad to the effect of practising her freedom of speech and expression or her right to profess her religion [17].

The fundamental points which need to be looked at to apply doctrine of severability was decided on in the case of R.M.D Chamarbaugwalla v. Union of India[18]

Doctrine of eclipse

The laws which were in effect before the commencement of the constitution, do not get automatically removed from the possibility of ever coming into force again simple because it was found to be in violation of the fundamental rights. It remains in the shadows, in other words, it remains dormant and comes into effect in the future if the particular fundamental right that it is violative of gets amended. This doctrine was propounded in the landmark case of Bhikhaji v. State of Madhya Pradesh[19].

Clause (3)

This clause is an inclusive definition of what constitutes as the law under article 13. It includes delegated legislation in various other names, sub-delegated legislation, the constitution as well as an order of emergency declared by the president. All of them will come under the definition of ‘law’ in this clause of article 13, conforming to the guidelines of the fundamental rights enshrined in part III of the constitution.

Generally speaking administrative orders of the executive to the citizens will also have to conform to part III but if it is merely in the nature of rules of conduct and instructions to its officers, it will not assume the definition of law as under article 13 (4) as was arrived in the conclusion of the case of State of W.B v. Anwar Ali Sarkar[20] . At the same time, if any such instructions infringes upon the fundamental rights of the government officials or any outsiders, it would again fall under the definition of ‘law’.

While personal laws do not come within the ambit of ‘law’ under this clause[21], customs are included within the definition of law.  The rationale held in the case of Narasu Appa Mali still stands today and has not been challenged as such. However, with the recent arrival of the Sabarimala judgement[22], Justice D Y Chandrachud has discussed his stance on this age 67- year old judgement which is in opposition to the popular stance[23] possibly, starting a new debate on the correlation of personal laws and the question of its conformity with the fundamental rights of the constitution.

Clause (4)

In Minerva Mills v. Union of India[24] the court cleared doubts about the basic structure doctrine and upheld its validity. The court prevented the parliament to enact any amendment which hindered the power of judicial review to judge any law which may be challenged before the court, thus nullifying two provision, section 4 and section 55 introduced through the 42nd amendment. Therefore, section 368 (5) was declared unconstitutional on the grounds of going against the basic structure of the constitution. In turn, section 13 (4) which barred interference of the judiciary in matter of constitutional amendments, broadening the power limited by the parliament under article 13.

Doctrine of colorable legislation

The doctrine of colourable legislation is built on the fundamental constitutional principle of separation of power. There must be a balance of power between the three organs of the state, i.e. the executive, legislature and the judiciary. With legislature have an immense power to make laws, judiciary acts as a check on that power by checking its accountability. The legislature cannot do something indirectly which is not permitted to do directly. The doctrine of colourable legislation acts as a limitation in the law-making power of the legislature. The Supreme Court in the case of Gajapati Narayan Deo v. State of Orissa has explained the meaning and scope of the doctrine of colourable legislation[25].  The substance of the act is what is important. The doctrine of colourable legislation has reference to the competence and not to motives of the legislature. The case of State of Bihar v. Kameshwar Singh[26]is the only case wherein a law has been held invalid on the ground of colourable legislation.

In Conclusion, article 13 is a valuable principle of law which has been moulded in favourable ways to keep up with changing times as is seen from precedents established. Oppression of the legislature has only been avoided because of the existence of it. Article 13 certainly has played a significant and varied role in re-structuring constitutional jurisprudence and legal theory[27].

[1] “(1) all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

 (a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. 

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368”

 Constitution of India, 1950 Article 13

[2] Keshavan Madhavan Menon v. State of Bombay 1951 AIR 128

[3] Syed Qasim Razvi v. The State Of Hyderabad And ors 1953 AIR 156

[4] Saghir Ahmed and ors v. The govt. of the  state of Uttar Pradesh AIR 1954 All 257

[5] V N Shukla, Constitution of India (13th edn., Eastern Book Company 2018) page no. 42

[6] Mahendra Singh v. State of U.P and ors. AIR 1956 All 96

[7] State of Gujarat and anr v. Shri Ambica Mills Ltd. 1974 AIR 1300

[8] Sri Sankari Prasad Singh Deo v. Union of India 1951 AIR 458

[9]  Golak Nath v. State of Punjab 1967 AIR 1643

[10] Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461

Interesting fact to note about this judgement is that the judges’ opinions seem to have been heavily influenced by the work of Professor Conrad, a famous professor of constitutional law from Germany. According to Professor I.P Massey, the court’s language reflected the speech that Professor Conrad delivered in Banaras Hindu University. Unfortunately, justice Khanna was the only one who gave credit to Professor Conrad in his part of the judgement.

Swapnil Tripathi, ‘Remembering Prof Conrad: The genius behind basic structure doctrine’ (Live Law 24 April 2020) <> accessed 27 April 2020

[11] The 9th schedule was added to the Indian constitution by the 1951 1st amendment act. It was an attempt to provide security to laws made by the legislature under this schedule from being subjected to judicial review, if challenged. However, such an attempt by the legislature was not successful in the I.R Colheo case.

[12] I.R Colheo v. State of Tamil Nadu and ors AIR 2007 SC 861

[13] Virendra Kumar, ‘Basic structure of the India constitution: Doctrine of constitutionally controlled governance [From Kesavananda Bharti to I.R. Colheo]’ (2007) 49 (3)  JILI  < > accessed 27 April 2020

[14] Arvind P. Datar, ‘The case that saved Indian democracy’ The Hindu (24 April 2013) <> accessed 27 April 2020

[15] Dr. Aman Ullah, Samee Uzair, ‘Basic structure of the constitution: Impact of the Kesavananda Bharati on constitutional status of fundamental rights’ (2011) 26 (2) South Asian Studies: A Research Journal of South Asian Studies <> accessed 27 April 2020

[16] Maneka Gandhi v. Union of India  1978 AIR 597

[17] Some necessary context to understand SC’s view: The court noted that an order impounding a passport can be made by the Passport authority only if it is actually in the interests of the general public to do so. The impugned order was made because, in the opinion of the central govt. the presence of the petitioner was necessary for giving evidence before the Commission of inquiry. And according to the report received by the central government, she was likely to leave India and that might impede to some extent the inquiries which were being conducted by the commissions of enquiry.

[18] R.M.D Chamarbaugwalla v. Union of India 1957 AIR 628

[19] Bhikhaji Narain Dhakras and ors v. State of Madhya Pradesh 1955 AIR 781

[20] The state of West Bengal v. Anwar Ali Sarkarhabib 1952 AIR 75

[21] The State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84

[22] Indian Young lawyers association v. The state of Kerala

[23] Krishnadas Rajagopal, “With Sabarimala verdict, ‘ghost of Narasu’ is finally exorcised” The Hindu (28 September 2018) <> accessed 27 April 2020

[24] Minerva Miills Ltd.  V. Union of India 1980 AIR 1789

[25] “If the constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by the constitution in specific legislative entries, or if there are limitations on the legislative authority in the shape of Fundamental rights, the question arises as to whether the Legislature in a particular case has or has not, in respect to subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgressions may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colourable legislation has been applied in judicial pronouncements”

Suyash Verma, ‘Constitutional Law- Doctrine of Colorable Legislation and the Constitution of India’ (Desi Kanoon, 30 May 2014) <> accessed 27 April 2020.

[26] The State of Bihar v. Maharajadhiraja Sir Kameshwar  1952 1 SCR 889

[27] Adithya Variath, ‘Article 13 and pro tanto supremacy of the constitution of India’ 4 (3) International Journal of Law <> accessed 27 April 2020

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