Article 13: Laws inconsistent with or in derogation of the fundamental rights

Leading cases

• Kesavananda Bharati v. State of Kerala (1973)By seven judges to six, the Court held that Parliament's amending power under Article 368 does not include power to alter its basic structure; it upheld the 24th and 29th Amendments but struck down part of Article 31C.
• I.C. Golak Nath v. State of Punjab (1967)By 6:5, the Court held that Parliament cannot amend the Constitution so as to take away or abridge fundamental rights, rejecting Sankari Prasad and Sajjan Singh, but left existing amendments in force and dismissed the petitions.
• State of Madras v. Champakam Dorairajan (1951)The Communal G.O. allotting seats in State medical and engineering colleges by religion and caste violated Article 29(2) and was void under Article 13; directive principles cannot override fundamental rights.
• Romesh Thappar v. State of Madras (1950)The Court held Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 wholly void under Article 19(2) and quashed the Madras Government's ban on the entry and circulation of the weekly Cross Roads.
• A.K. Gopalan v. State of Madras (1950)The majority upheld the Preventive Detention Act, 1950, except Section 14, holding that 'law' in Article 21 means State-made law and that preventive detention is not tested under Article 19; the habeas corpus petition was dismissed.
• Shayara Bano v. Union of India (2017)By a majority of 3:2 the Supreme Court set aside the practice of talaq-e-biddat (instant triple talaq), the majority judges resting on different grounds: manifest arbitrariness under Article 14, and inconsistency with the Quran and Shariat.
• Khoday Distilleries Ltd. v. State of Karnataka (1994)A citizen has no fundamental right under Article 19(1)(g) to trade or do business in potable liquor; the State may prohibit it completely, create a monopoly in itself, and impose restrictions even by subordinate legislation.
• Waman Rao v. Union of India (1980)The Court upheld Articles 31A, 31B and the unamended Article 31C, holding that laws placed in the Ninth Schedule before 24 April 1973 are fully protected, while later additions are valid only if they do not damage the basic structure.
• Kunnathat Thathunni Moopil Nair v. State of Kerala (1960)A flat per-acre land tax levied irrespective of the land's productivity, with an unguided exemption power, violated Articles 14 and 19(1)(f) and was confiscatory; Article 265 does not shield a taxing law from Part III.
• Basheshar Nath v. Commissioner of Income-tax (1958)The Court set aside a settlement made under section 8A of the Taxation on Income (Investigation Commission) Act, 1947 as hit by Article 14, holding that an assessee cannot waive a breach of the fundamental right under Article 14.
• Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955)A pre-Constitution law that became void under Article 13(1) for inconsistency with Article 19(1)(g) was only eclipsed, not dead, and revived against citizens once the First Amendment amended Article 19(6) to remove the inconsistency.
• Suresh Kumar Koushal v. Naz Foundation (2013)The Court set aside the Delhi High Court's declaration that Section 377 IPC was unconstitutional as applied to consensual sexual acts of adults in private, holding the section free of constitutional infirmity and leaving change to Parliament.

Questions on this article

23 questions in 43 of our papers cite Article 13. Try these from the free papers:

1. 1. A pre-Constitution law that was inconsistent with a fundamental right became operative again, without re-enactment, once the Constitution was amended to remove the inconsistency. The principle applied by the Supreme Court in Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955) to reach this result is the doctrine of:

   A.eclipseB.pith and substanceC.severabilityD.waiver
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2. 2. The doctrine of 'eclipse' applies to a pre-Constitution law that is inconsistent with Fundamental Rights, meaning the law is:

   A.Permanently void from the outsetB.Not dead but remains dormant/eclipsed, and can revive if the inconsistency is removedC.Automatically amended by the courtsD.Applicable only to Union laws
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3. 3. In 1949, X published matter that was an offence under a pre-Constitution press law, and a prosecution was started against him that year. After 26 January 1950, while the case was pending, X argued that the law was inconsistent with Article 19(1)(a) and that the prosecution must therefore be dropped under Article 13(1). Following Keshavan Madhava Menon v. State of Bombay (1951), which view is correct?

   A.The prosecution can continue only if the legislature re-enacts the law after 26 January 1950B.The prosecution can continue, because Article 13(1) is not retrospective and does not affect past offencesC.The prosecution must be dropped, because Article 13(1) made the law void from the date of its enactmentD.The prosecution must be dropped, because the law is void ab initio under Article 13(2)
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