According to John Locke’s Second Treatises on Government, the sovereign’s obligation to safeguard all men and their property in exchange for rights is the only way for the government and “men” to fulfill their end of the bargain. In addition, he writes in Chapter XVIII under Sections 201 and 202 of the book that the government or sovereign will be treated like “any other man who by force invades the right of another” if they utilize this power to give arbitrary and irregular directives. Therefore, “men” have every right to criticise the government’s authority if it infringes on someone’s freedom and liberty. This implies that citizens have the right to their legal rights simply by virtue of being human, first and foremost.

Similar contractual arrangements between the State and the citizen are outlined in the Indian Constitution. As a result, if any law violates one’s constitutional rights as stated in Part III of the Constitution, they may file a lawsuit under Articles 226 and 32.

The Supreme Court acknowledged the authority of the High Courts under Articles 226 and 227 of the Constitution in L. Chandra Kumar v. Union of India (1997). Furthermore, the Court ruled in the 1975 case of Indira Nehru Gandhi v. Shri Raj Narain & Anr that judicial review is a fundamental component of the Constitution.

The Indian judiciary is empowered by the Constitution to review such laws and to declare them invalid or unconstitutional. In a same vein, discussing Article 13 of the Indian Constitution is essential to fully grasping Locke’s ideas. Article 13 helps the judiciary and the populace keep the legislative authorities in check.The procedure for judicial review is described in Article 13 of the Indian Constitution. It requires the Indian State to uphold and carry out the fundamental right. Additionally, it gives judges the authority to declare a statute or other action invalid if it violates fundamental rights.

This article examines Article 13 and its Clauses while also examining how judicial interpretations have influenced how Article 13 is currently perceived. The relevance of Article 13 as interpreted by the Indian judiciary will be discussed in detail in this article, clause by clause. Additionally, it will stress the significance of judicial review in relation to Article 13.

Article 13 is the guardian of Rights mentioned in Part III of our Constitution. Clause (1) of the said Article emphasizes that all inconsistent existing laws become void from the commencement of the Constitution. The Supreme Court first interpreted Article 13 (1) when deciding whether Article 13 had any retroactive application to laws that violated basic rights.

A seven-judge bench considered the appeal of a petitioner who had been charged under the Indian Press (Emergency Powers) Act in Keshavan Madhava Menon v. The State of Bombay 1951 SCR 228. Whether Article 13 (1) of the Indian Constitution might “declare all laws inconsistent with the fundamental rights to be void as if they had never been passed and existed” or be declared unconstitutional from the start was one of the questions raised in the appeal.

As a result, even if a legislation is declared unconstitutional because it violates section III’s rights, it will still be applicable to both citizens and non-citizens who violated the statute in question.

Does Article 13(2) apply to non-citizens?

According to Article 13(2) of the Indian Constitution, the State may not enact legislation that is not “consonant” with the Constitution. Additionally, if a legislation was designed that interfered with a person’s fundamental rights, such law would be void to the extent of the violation. This is a specific justification for judicial review following enactment.

One of the many cases that further complicate the task of interpreting Article 13 is The State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 SCR (3) 760. To provide some perspective, after the State of Bombay was split in two in May 1960, the State of Gujarat passed the Bombay Welfare Fund (Gujarat Extension and Amendment Act) in 1961.

The 1953 Bombay Welfare Fund Act saw a number of revisions thanks to the Amendment Act. A business formed under the Companies Act of 1956, the respondent, made “several contentions.” One of them claimed that some Amendment Act provisions “violated the fundamental right of citizen employers and employees under Article 19 (1)(f).” As a result, the Act was illegal and in violation of Article 13.(2).

Justice Mathew made the observation on behalf of the Supreme Court’s Constitutional Bench that the Indian Constitution merely granted citizens unique rights, protecting them from later unconstitutional laws.

However, although these rules were unlawful for a citizen, they were not unconstitutional for a non-citizen, such as the employer in this instance.The Court further noted that under the Keshavan Madhava case’s interpretation of Article 13(1), the term “void” would not apply to pre-constitutional laws that applied to non-citizens.

Do personal laws fall under Article 13(3)’s scope?

Any legislation having legal effect on Indian territory is included in Article 13(3)(a), including any ordinance, order, bye-law, rule, regulation, notification, custom, or usage. In essence, the Clause does not list every statute that infringes on fundamental rights, but it does include all of them.

Before the start of this Constitution, laws passed or made by the legislature or another competent body in the Indian subcontinent that have not yet been repealed are covered by Article 13(3)(b). It is equivalent to the definition of “existing law” in Article 372 of the Indian Constitution.

Clause (2) of Article 13 declares that the State shall not make any law that contradicts an individual’s fundamental rights. This is a comprehensive reading of both Clauses (2) and (3) (a). Law is defined in clause (3)(a) as include usage and custom. The problem is that a territory’s legislature cannot determine custom or use in that territory. So how does it fit into the broad meaning of law? But this is where diverse interpretations of the legislation’ text are made. Even the interpretation is inconsistent in some aspects.

The Bombay High Court had to determine the constitutionality of the Bombay Prevention of Hindu Bigamous Marriages Act 1946 in the case of State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84. The Court provided an answer to the question of whether personal laws might be considered “laws in force” as described in Article 13(3).(a).

Hon. Justice M.C. Chagla believed that the word “law” and not “personal law” is used in Article 13 (3) (a). The question was whether or not personal law should be included by Article 13 (3) (a). (b). The former comprises statutory law, whilst the latter include all laws that have been in effect since 1950. The Court declared:

The Supreme Court, however, ruled in Ahmadabad Women’s Action Group v. Union of India AIR 1997, 3 SCC 573 that if religious personal laws are included in the laws that the legislature has codified, then the codification must be for the fundamental rights. The problem that first surfaced in the Narasu decision persists in the Triple Talaq decision and even after that, further muddying the scope and definition of law and “law in force” in Article 13(3)(a) and (b). (b).

The Sabarimala Case, also known as Indian Young Lawyers Association v. The State of Kerala ((2017) 10 SCC 689), addressed this issue in 2018. The Indian Constitution is centred on the “individual,” according to the Court in this decision, and any law that had an impact on that individual might be covered by Article 13.(3). The Judge noted: The Court had said that prohibiting women of 10-50 years of age in the Sabarimala Temple under a custom is not reasonable or ‘universal’. And all valid customs must be ‘reasonable, certain and continous’.

Article 13 Vis-À-Vis The Basic Structure Doctrine

According to Article 13(2) of the Indian Constitution, the Parliament cannot enact legislation that restricts or abridges basic rights. However, Article 368 grants the Parliament the authority to change the fundamental rights with a special majority in the Parliament.

In I. C. Golaknath & Ors v. the State of Punjab 1967 AIR 1643, 1967 SCR (2) 762, the court considered two issues: whether Parliament had the authority to change Part III of the Constitution, and whether exercising authority under Article 368 may invalidate the implications of Article 13 of the Indian Constitution. According to the majority Bench, which was made up of six to seven judges, every constitutional amendment possesses the same qualities as a standard statute. It is therefore protected by Article 13 (3). (a). Once it is addressed, Article 13 (2)’s restriction—which stipulates that “the State shall not make any law which takes away or abridges the rights”—comes into play. No such amendment that reduces any aspect of the Constitution could then be made. Although the Court in the Golaknath case held that the Parliament had no power to amend Part III of the Indian Constitution, the Parliament responded by enacting the Twenty-fourth Constitutional Amendment. Using which the Parliament inserted a new Clause to Article 13; Article 13(4).

In Kesavananda Bharati v. State Of Kerala And Anr. AIR 1973 SC 1461, the validity of the Twenty-Fourth Amendment was further contested.(1973). which saw the Golak Nath case overturned by a majority Bench of 7 to 6. The Supreme Court ruled that the ability to change laws existed before the Twenty-fourth Amendment. (Article 368). In addition, it noted that J. Sikhri’s list of fundamental characteristics was by no means exhaustive. If any of these Fundamental Elements are violated, the law or the Act will be declared null and void and thus unconstitutional.

Conclusion:

Article 13’s intent and definition initially seem straightforward, they have been subject to numerous interpretations over time. With each case addressing its effects on both pre- and post-colonial legislation, Article 13 and its scope have grown. It was crucial for our Constitution since it was able to render some oppressive laws null and void and, in some cases, rendered them ineffective. It is also crucial to keep in mind that Article 368 prohibits the legislature from interfering with judicial review. It is an inherent and unstated restriction on the legislative branch’s ability to modify the constitution. It implicitly emphasized the value of judicial review, which is in charge of interpreting Article 13 to protect fundamental rights. Although there has been significant inconsistency in the case laws interpreting Article 13, it does provide answers to several crucial problems.