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DAILY
CLASS NOTES
Lecture - 10
Article 13 and Basic
Structure Doctrine
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Article 13 and Basic Structure Doctrine
Article 13:
“Laws inconsistent with or in derogation of the fundamental rights”.
Article 13 is a safety valve that protects fundamental rights from laws that are inconsistent with them.
The basic context behind the creation of Article 13 is that while Fundamental Rights were being written, many
British laws were already operative. In fact, many laws continue to be in operation today. Example: Indian
Penal Code, 1860
Due to the utility of the existing British laws, only laws that were in conflict with fundamental rights were made
inoperable. It led to the creation of Article 13 (1) which says ‘laws in conflict with Fundamental Rights
shall be inoperable till rectified’.
Thus, they followed the ‘doctrine of eclipse’.
About Doctrine of Eclipse:
The Doctrine of Eclipse is applied when any law or act violates the fundamental rights, then the
fundamental rights overshadow the other law or act and make it unenforceable but not void ab initio (Ab initio
means ‘from the beginning’).
They can be enforced again if the restrictions posed by the fundamental rights are removed.
Elements of Doctrine of Eclipse:
It should be pre-constitutional law.
It must be in conflict with the fundamental right.
The law does not become void rather it is only inoperative.
After Amendment to the fundamental right, it will automatically make impugned law operative.
If a law had different punishment such as 6 months for Britishers and 2 years for Indians. But since fundamental
right envisioned Right to Equality, the Parliament would strike down the differential punishment following the
‘Doctrine of Severability’ and have equal punishment for everyone. Thus, the provision of punishment would be
there but not of differential punishment i.e., the doctrine of severability is followed, the part that is inconsistent with
the fundamental rights is ‘severed’.
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The Doctrine of Eclipse
Many laws of the British Era were discriminatory in nature such as different penal provisions for Britishers
and Indians which infringed upon Fundamental Rights.
Furthermore, to protect the Fundamental Rights post the creation of the Constitution, Clause 2 of Article 13
says, ‘laws made by the Parliament of India which conflicts with Fundamental Rights shall be void ab initio’
[Ab initio means ‘from the beginning’] Example: In 2015, the Supreme Court struck down Section 66A of
the Information Technology (IT) Act, 2000, as unconstitutional.
Clause 3 (A) of Article 13 defines ‘what is law’ and it includes ordinance, order, law, bye- law, regulation,
rule, or customs.
Some Important Cases:
Shankari Prasad Case:
To counter the widespread inequality, land concentration in the hands of the few Bihar passed the Zamindari
Abolition Act, 1948 for land distribution among the people. But Patna High Court struck it down.
However, post the creation of the Constitution, the challenge to this arose as a fundamental right to property
was incorporated into the constitution i.e. Article 19 (1) (f).
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To resolve these inconsistencies, the 1st Constitutional Amendment was brought in 1951 by the Parliament
and made the Right to Property a limited right. It further added Article 31A, 31 B, and related Schedule
IX in the constitution.
Article 31A said that property can be acquired for national importance purposes. Article 31B said that the laws
in the IX Schedule shall not be challenged in the courts i.e., out of the judicial review power of the courts.
Then finally, the issue reached Supreme Court in the Shankari Prasad Case, the court held that the 1st
Constitutional Amendment is valid.
Furthermore, it said that “In the context of Article 13, "law" must be taken to mean rules or regulations made
in the exercise of ordinary legislative power and not amendments to the constitution made in the exercise of
constituent power with the result that Article 13(2) does not affect amendments made under Article 368.
The question raised by What the Supreme Court said
Shankari Prasad Case
● Can Parliament amend Fundamental ● Yes, Parliament can amend Fundamental Rights.
Rights? ● Both are important, Article 46 following the ‘Doctrine of
● Whether Directive Principles are Supreme Harmonious Construction’.
or Fundamental Rights are Supreme? ● It also upheld the IX Schedule Amendment as valid.
● Is IX Schedule a valid Amendment? ● The court held that Amendment under Article 368 does
● The definition of law under Article 13(2)? not constitute the law for the provision of Article 13(2).
The Doctrine of Harmonious Construction:
It is a cardinal rule of construction that whenever there are two provisions in a statute, which are in conflict
with each other, that both of them cannot stand together, they should possibly be so interpreted that the effect
can be given to both.
And the construction which renders either of them that will become inoperative and useless and should not be
adopted except as the last resort.
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