ConstitutionJudicial ExamLegal Notes

PCS (J) Notes: Constitutional Law, Article 13 with relevant case laws

 

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  1. Laws inconsistent with or in derogation of the fundamental rights.— (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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

9[(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.]

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CASE LAW

Doctrine of eclipse.— Doctrine of eclipse will apply to pre-constitutional law governed by Article 13(1) but not to post-constitutional laws governed by Article 13(2), K.K. Poonacha v. State of Karnataka, (2010) 9 SCC 671.

Retrospective effect.— Fundamental rights have no retrospective effect, Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128.

Nature of Fundamental Rights.— Fundamental rights cannot be waived, Basheshar Nath v. CIT, AIR 1959 SC 49.

Extent of Amendment.— An amendment to the Constitution is not “law”, and to the extent that it does not violate the basic structure, Article 13(4) is valid, Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

Personal Laws.— Personal laws are not “law” for the purpose of Article 13, State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, followed in Ahmedabad Women’s Action Group v. Union of India, (1997) 3 SCC 573.

Burden of proof.— Burden of proof/Presumption of constitutionality of statute is on him who challenges it to show that there has been a clear transgression of constitutional principles as there is always a presumption in favour of constitutionality of an enactment, Dharmendra Kirthal v. State of U.P., (2013) 8 SCC 368 : (2013) 4 SCC (Cri) 280.

 

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