Article 13 provides the constitutional teeth for judicial review, declaring that any law inconsistent with Fundamental Rights is void.
1. Pre-Constitutional vs. Post-Constitutional Laws
- Article 13(1) - Pre-Constitutional Laws: All laws in force in India immediately before the commencement of the Constitution, in so far as they are inconsistent with Part III, shall, to the extent of such inconsistency, be void.
- Article 13(2) - Post-Constitutional Laws: The State shall not make any law which takes away or abridges fundamental rights; any law made in derogation shall be void immediately.
2. Bedrock Judicial Doctrines
- Doctrine of Eclipse: An inconsistent pre-constitutional law does not die immediately; it is merely "eclipsed" or made dormant by the fundamental right. If the fundamental right is amended, the eclipse is removed, and the law becomes active again (Bhikaji Narain Dhakras v. State of MP, 1955). This doctrine does not apply to post-constitutional laws, which are dead from birth.
- Doctrine of Severability: If a statute contains both valid and invalid parts, the court will strike down only the invalid section if it can be severed from the rest. If the invalid part is so integrated that it cannot be separated without altering the legislative intent, the entire Act is declared void (R.M.D. Chamarbaugwalla v. Union of India, 1957).
- Doctrine of Waiver: In the landmark case of Basheshar Nath v. Commissioner of Income Tax (1959), the Supreme Court held that a citizen cannot waive their fundamental rights. These rights are established not just for individuals but as a matter of public policy to protect the public.
3. Definition of "Law" and Article 13(4)
Article 13(3) defines "law" to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law.
This triggered a massive dispute over whether a Constitutional Amendment under Article 368 is a "law" under Article 13. The Supreme Court in Kesavananda Bharati held that constitutional amendments are not "laws" under Article 13, but they are strictly subject to the Basic Structure Doctrine.