Obliterate or Unobliterate of law Article 13 Constitution of India

Tuesday, June 13, 2017

Analyzing of Article 13 of Indian constitution which said that any law inconsistence with articles it void and may be nullify. Article 13 provides teeth to the Fundamental Right. It makes these rights justifiable i.e. enforceable in the courts. It declares all laws, whether Pre-Constitution void, if they are inconsistent with or abridge or violate the Fundamental Rights.


Article 13 (1) Declares that all laws in force in territory of INDIA immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of Part III of the Constitution.

 

Article 13 (2) provides that the State shall not make any law which tales away or abridges the Fundamental Rights conferred by Part III of the Constitution and any law made in contravention of Fundamental Rights shall, to the extent of contravention be void. So, Article 13(2) applies to Post-Constitution laws.

 

Article 13 (3) Gives the term ‘law’ a very broad connotation which, includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law. Thus not only the Legislative Enactment, but anything mentioned here can be challenged as infringing a Fundamental Right..

 

Article 13 can be divided under following headings;


Prospective or Retrospective

The analysis of Article 13(1) and Article 13(2) makes it clear that the guarantee is against the existing laws and future laws but it is not against the laws made before the commencement of the constitution. The rights and laws made before the commencement of the Constitution. The rights and liabilities that have accrued under the law which is inconsistent or in contravention with the provision of Part-III i.e. Fundamental Rights, but has been made before the commencement of the constitution, can be enforced Article 13 thus, have no retrospective effect.

 

Doctrine Of Eclipse

The prospective nature of Article 13(1) have gives rise to the doctrine of eclipse. The doctrine of eclipse deals with pre constitution laws or existing laws.
The law which has been valid at its inception but has become invalid on the coming into force of the constitution of India by reason of being inconsistent with Fundamental Rights guaranteed in Part-III of the Constitution is treated to be dormant but not dead and, therefore it by the subsequent amendment of the Constitution the inconsistency which has made it unconstitutional is removed. The law will become free from infirmity and will become enforceable i.e. this is called Dectrine Of Eclipse…….

 

 

Case:-
Keshavan Madhvan Menon V. State Of Bombay
(AIR 1951 SC 128)

 

In this case Supreme Court Observed that……..
1- A law in force before the commencement of the Constitution, if inconsistent with a Fundamental Right, did not become void “ in toto” or for all purposes or for all times or for all persons. Such laws become void only to extent of its inconsistency with the Fundamental Right.
2- The existing law, because of its inconsistency with a Fundamental Right, was not completely obliterated or wiped out altogether from the Statute Book. But, such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force even after the commencement of the constitution with respect to persons whose rights it did not violate.
3- The only effect of Article 13(1) on the inconsistent law was that, qua persons entitled to the Fundamental Right, the law became ineffective or imperative for the time being. The law got into a dormant or moribund state or that it was shadowed by the fundamental Right it violated or that it was so eclipsed.
4- If by an amendment of the Fundamental Right, the shadow on that law was removed, the law would get revived and operative.

So, doctrine of eclipse is based on the principle that a law which violates Fundamental Rights is not nullity or void-ab-initio but becomes only unenforceable.

 

 

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