Introduction

Fundamental rights are considered to be on the level of God thus no one cannot amend
them. Article 13 of the constitution do upholds the supremacy over Indian constitution and do
paves the way to judicial review. This prescription do enable us to review the pre-constitutional
and existing laws.
Although the intervention of the judiciary in constitutional matters is a debatable topic, yet in
most of the cases, the power of judiciary is considered to be the supreme and is summoned to
guard and enforce the fundamental rights guaranteed in the Indian constitution under part III.
‘People believe in law’ and to keep that belief the Drafting committee gave the concept of
Fundamental Rights in Part III of the Indian constitution. It gives liberty to the citizens of India
and protects it from being infringed by the state. It also provides for the remedy if their
fundamental right is violated.
And to keep the belief of people in the State, Article 12 and 13 were introduced. Article 12 gives
the definition of state and tells about the responsibility the state has towards people and their
fundamental rights whereas Article 13 of the Indian constitution which presents itself in four
parts, makes the concept of fundamental rights more powerful and gives it a real effect. This
article protects the individual’s fundamental rights by rendering any law null and void if it
intervenes with the liberty or is inconsistent in any way with the fundamental right of the person.
Origin and development of Fundamental Rights:
The salient features of the Indian constitution are recognizable and unique from other
constitutions even though it has borrowed some second to none features of some of the other
constitutions of the world that is the constitution of India is not a paper or a scissor work but the
beat of a different drum.
Amongst all the borrowed features, the idea of fundamental rights was taken from the
constitution of the United States. Drafting committee gave the concept of Fundamental Rights in
Part III of the constitution which was originated by the inspiration from England’s Bill of rights,
United States Bill of rights, the development of the Irish constitution and France’s declaration of
the rights of man.
The Indian National Congress in Bombay in 1918 suggested a declaration be included in the
Government of India Act which contains the rights of people as British citizens. Nehru
committee also emphasized on having fundamental rights guaranteed so that it cannot be pulled
out under any circumstances, which was refused. The Indian National Congress in its Karachi
session again brought up the matter of a written guarantee of the fundamental rights which was
again refused by the joint select committee of the British Parliament. Finally, the constituent
assembly adopted the Objective Resolution on January 22, 1947, and pledged to guarantee and
secure the fundamental rights of the people.

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Need for Fundamental Rights
A country provides its citizens with some rights which add to their growth and development and
enables them to live a life of utmost dignity. Amongst these rights, there are some rights of
fundamental nature.
The term ‘Fundamental’ is used as these rights are most essential of all rights without which the
survival of an individual is not possible. Fundamental rights embody the spirit to secure the
dignity and liberty of the individual and protect it from any invasion of the state.
In case of infringement of the fundamental right, the individual can directly approach the
Supreme Court. It ensures that the law governs the government and the people and there is no
dictator rule.

Article 13 of the constitution of India, 1950 states that:

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 law includes any Ordinance, order, bye
law, rule, regulation, notification, custom or usages having in the territory of India the force of
law; laws in force includes laws passed or made by 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
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article
368.1
Meaning and scope
Through this article (article 13), the parliament and state legislatures are being terminated from
making such laws that may infringe or take away the fundamental rights that are being
guaranteed by the Indian constitution itself.
The pre-constitutional laws may not be able to meet the changing and developing needs of
today's world, therefore article 13 do gives the power to the supreme court and high court of
India to re-write the pre-constitutional laws, so as to make the laws meet the changing conditions
of today's lifestyle of people.

1
Ins. by the constitution (Twenty -fourth Amendment) Act, 1971, sec. 2 (w.e.f. 5-11-1971)

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Similarly, the laws made after adopting the constitution must prove their similarity with the pre-
constitutional laws, then only they would be considered as valid otherwise they would be
assumed to be void. Part III of the constitution do exist with this objective that the rights and
freedom of people do gets the protection from the arbitary invasions of the state.

Introduction to article 13
Article 13 of the constitution do talks about the four principles relating to fundamental rights.
Fundamental rights do exist from the date on which the Indian constitution came into force i.e.
on 26th January 1950 hence fundamental rights became operative from this date only.
Article 13(1) talks about the pre-constitutional laws i.e. the day from which the constitution came
in existence there were many laws in the country and when the constitution came into existence
fundamental rights do came, therefore the laws before the existence of the constitution must
prove their compatibility with the fundamental rights, only then these laws would be considered
to be valid otherwise they would be declared to be void.
For example, article 15 of the constitution do gives the right to education to all without any
discrimination on the basis of caste, sex, religion, etc., but an Education act which came in
existence in 1930 says that a particular group of kids would not be provided education on the
basis of their caste'. As this particular clause of the act is inconsistent with that of the
fundamental rights therefore it is declared to be null and void.
Moreover article 13(1) is prospective in nature but not retrospective i.e the article will be in
effect from the day when constitution came in effect (26th jan.,1950) and the person who
committed offence afterwards will be prosecuted according to the laws of Indian constitution but
not according to the pre-constitutional laws.

Introduction to Article 13(2)

Article 13(2) talks about the post constitutional laws i.e. it says that once the constitution is
framed and came in effect then any of the state may not make laws that takes away or abridges
the fundamental rights of an individual and if done so then it would be void till the extent of
contravention.
Case Law
State of Gujarat v. Ambika mills2
Here, a certain labour welfare fund act was challenged, as certain sections in it were against the
fundamental rights. Since the fact that the laws made by the state after the constitution is framed
would be declared void if those laws are against the fundamental rights, but here the question
arose that fundamental rights are only granted to citizens but what will happen in the case of
non-citizens or a company (company here is the respondent i.e. Ambika mills). It was held by the
apex court that since the fundamental rights are only granted to the citizens but not to the
company or any non-citizen, therefore the labour welfare fund act is valid.
2
[1972] 2 S.C.C. 788

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 Is Constitutional amendment a ‘Law’ under Article 13 (2). -
The question whether the word’ law’ in clause (2) of Article 13 also includes a ‘Constitutional
amendment’ was for the first time considered by the Supreme Court in Shankari Prasad v. Union
of India. 3 The court held that the word ‘law’ in clause (2) did not include law made by
Parliament under Article 368. The word ‘law’ under Article 13 must be taken to mean rules or
regulations made in exercise of ordinary legislative power and not amendments to the
Constitution made in exercise of Constitutional power and, therefore, Article 13 (2) did not affect
amendments made under Article 368. This interpretation of Shankari Prasad’s case was followed
by the majority in Sajjan Singh v. State of Rajasthan.
But in historic case of Golak Nath v. State of Punjab,4 was heard by a special bench of 11 judges
as the validity of three constitutional amendments was challenged. The Supreme Court by a
majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has
no power to take away or abridge the Fundamental Rights contained in chapter III of the
constitution the court observed.
(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.
(2) Article 368 does not contain the actual power to amend the constitution.

3
(AIR 1951 SC 455)
4
( 1967 AIR 1643, 1967 SCR (2) 762)

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