Article 13 of Indian Constitution, Provisions, Clauses, Case Laws

Article 13

Laws made in derogation of undamaged rights shall be void.

• Article 13(1)

  All laws (pre contitutional laws) enforced in the territory of India before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall be extended. Such inconsistency shall be void.

• Article 13(2)

  The state shall not make laws or enact a law which takes away or abridges the right in this part. Any law made in contravention to this clause shall be the extended of contravention void.

• Article 13(3)

  In this article unless the context otherwise required law means any ordinate/order by law, rule, regulation, custom usages having the force of law in the territory, either pre-Constitutional Law or post-Constitutional Law.

• Article 13(4) Added by 24^th Constitutional Amendment Act, 1971 by Indira Gandhi

  Nothing in this article shall apply to the amendment of the Constitution made under Article 368, that is, the 24th Constitutional Amendment Act, 1971.

Doctrine of Basic Structure

The question whether Fundamental Rights can be evaded/violated by the Parliament with the help of Article 368 comes for consideration of the Supreme Court within a year of the Constitution coming into force. Why?

Evolution of Doctrine of Basic Structure

Because the parliament First Constitutional Amendment Act 1951 created the 9th Schedule, which brought two provisions into the Constitution, that is Article 31A and Article 31B.

• Article 31A

  Mandates that the state can, in the interest of the public, acquire estates and cooperation, etc.

• Article 31B

  Mandate for such a law to keep under non-scheduled judicial review would not take place.

Shankari Prasad v. Union of India 1951.

As a result the state began acquiring property of individuals and evaded their fundamental right, i.e., right to property. Since the matter was brought, the person approached the Supreme Court for violation of his Fundamental Rights and the matter came into question in the landmark case Shankari Prasad v. Union of India, 1951 case.

The Supreme Court said the expression "law" means under Article 13 law, which is only for ordinary law and not for constitutional law or constitutional amending law. The intention of Parliament is right because Parliament has two types of power

• Legislation of ordinary law
• Constitutional Legislature power

Therefore the Supreme Court said that if the Parliament takes away any Fundamental Right by enacting constitutional amendments, such a law will not be a violation of Article 13.

Parliament later enlarged the scope of the 9^th Schedule and included 44 matters in the 9th Schedule through the 17th Constitution Amendment Act, 1964.

This amendment again got challenged with the previous one in the Sajjan Singh v State of Rajasthan 1964. The Supreme Court reiterated the previous judgment of Shankari Prasad and said that Parliament can do this with the help of constitutional legislative power.

Golaknath vs State of Punjab 1967

Now this matter was brought and raised again under a large bench of 11 judges in the landmark case of Golaknath vs State of Punjab 1967. In this case the Supreme Court took a different view and overruled the previous judgment in the previous two cases.