Pre Constitutional Law & Article 13

  1. Introduction
  2. Is Article 13 retrospective in effect? (Keshava Madhav Menon v. State of Bombay)
  3. Doctrine of Severability (A.K. Gopalan vs. State of Madras, State of Bombay vs Balsara)
  4. ExceptionsRomesh Thappar vs State of Madras
  5. Doctrine of Eclipse  
  6. Can these laws be reactivated? (Bhikaji vs State of Madhya Pradesh)
  7. Conclusion

Introduction

ARTICLE 13, provided in part III of the Indian Constitution is a type of safeguard to the fundamental rights from arbitrary invasion of the state.

These fundamental rights exists from the very date of the commencement of the present Indian constitution.

Before the present constitution was framed there existed many laws, framed by the Britishers, which remained in effect even after the commencement of the present constitution. A contradictory situation emerged. Many of those PRE CONSTITUTION laws were found to be inconsistent/ violative to the fundamental rights provided in the then newly framed constitution.

Article 13 deals with such contradictory situations. It is based on four doctrines. A doctrine, is a principle which helps to determine the righteous way when rules clash and create contradiction.

Article 13(1) states that:

“All laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”

In other words, all those laws [existing prior to the constitution (within the territory of India)], which are inconsistent with fundamental rights will be considered void.

So here a question arrives,

IS ARTICLE 13 RETROSPECTIVE IN EFFECT?

The answer is NO. This Article comes into force from the date of the commencement of the constitution (i.e. January 26, 1950) and not before that. The fundamental rights also existed from that very day. So, the pre constitution laws will be considered valid and operative on the acts done before the date of the commencement of the constitution. And, thus, if a person had done any act before the constitution came into effect and that act comes under the definition of crime under any pre constitution law but not under constitution, even then he will be punished under the provision of that pre constitution law.

This is interpreted in KESHAVA MADHAV MENON v. STATE OF BOMBAY[1]. The court held that the proceedings initiated before the commencement of the constitution will not get affected and, therefore, cannot be dismissed. The court observed that there is no fundamental right that prevents any person from prosecution and punishment for an offence committed prior to constitution. Article 13 does not allow retrospective operations.

DOCTRINE OF SEVERABILITY

What if only particular part(s)/section(s) of an act is/are unconstitutional? Will the whole act be considered void?

This important question is dealt by doctrine of severability. Doctrine of severability provides that if only some part/section of any act is inconsistent then only that particular part will be separated. Provided that this separation will not terminate the main objective of that act. The phrase” to the extent of such inconsistency”, in article 13, declares the limit of such separation.

It is clarified in Article 13 that only such part will be declared unconstitutional which is inconsistent to or violates fundamental rights.

In A. K. GOPALAN v. STATE OF MADRAS[2], the court declared section 14 of Preventive Detention act as ultra vires (act done out of power/authority). The court held that even after subtracting section 14 from the act, the main objective/nature/structure of the act remains unchanged. Thus, the rest of the act was declared valid.

Similarly, in STATE OF BOMBAY v. BALSARA[3], the court declared that the separation of the invalid portion of the alleged act does not affect the basic essence of whole act. Thus, there seems no requirement to declare the whole act invalid.

EXCEPTION

There is an exception to this principle. If the invalid portion is connected to the valid portion in such manner that it fails to maintain the main objective of the act and loses its basic essence (nature/structure), in such a case, the whole act would be declared unconstitutional.

The Supreme Court observed the same in ROMESH THAPPAR v. STATE OF MADRAS[4].

The following figure illustrates Doctrine of severability:

INCONSISTENT LAWS = VOID

DOCTRINE OF ECLIPSE

‘Eclipse’ means ‘to hide’. Doctrine of eclipse is also based on article 13(1). As we read earlier, article 13(1) provides that the pre-constitution acts are declared void to the extent of inconsistency or contravention.

These inconsistent parts of those provisions are not terminated but only made inoperative. As if ‘sleeping’. Any such law that abridges the fundamental rights is not void an initio instead, remains in moribund condition. If, after any amendment, these ‘sleeping’ parts become consistent to the rights conferred in part III of the constitution, then, they can be reactivated.

CAN THESE LAWS BE REACTIVATED?

In BHIKAJI v. STATE OF MADHYA PRADESH[5], hon’ble supreme court held that ‘the effect of the amendment was to remove the shadow and to make the impugned act free from all blemish and infirmity.’

The said law in the above case was merely eclipsed for the time being by the fundamental rights but it became enforceable against citizens and non-citizens as well after the constitutional barrier was removed.

CONCLUSION

Part III of the Indian constitution provides fundamental rights as safeguard to the needs, will, benefits and rights to its citizens. These fundamental rights are guarded by article 13 in return. The various doctrines clarify the situations with clashes and contradictions. It is conclude by reading various case studies that fundamental rights are supreme. Neither the state nor any statute can violate these fundamental rights by any means. The citizens are the main subjects of the constitution. Thus, the provisions of the constitution are for the benefits of the citizens individually and in the interest of general public as well. The laws must be altered with respect to the need and demand of the time, surrounding, etc.


[1] AIR 1951 SC 128: Rabindra Nath v. Union of India, AIR 1970 SC 470

[2] AIR 1950 SC 27 : 1950 SCJ 174

[3] AIR 1951 SC 318

[4] AIR 1950 SC 124: another reference case Chintaman Rao v. State of M.P., AIR 1951 SC 118

[5] AIR 1955 SC 781

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