Article 13 Of The Constitution Of India

The Article 13 not only asserts the supremacy of the Indian Constitution but also makes way for judicial review. This legislation creates scope for reviewing pre-constitutional and existing laws. Although the legitimacy of judicial interventions in Constitutional matters has sparked debates, yet in most cases, the power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.

Meaning and Scope of Article 13

It is through Article 13 that the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country. The provisions under Article 13 ensure protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
The Article 13 provides a constitutional basis to judicial review since it gives the Supreme Court or High Courts the authority to interpret the pre-constitutional laws and decide whether they are in sync with the principles and values of the present Constitution. If the provisions are partly or completely in conflict with the legal framework, they are deemed ineffective until an amendment is made. Similarly, the laws made after the adoption of the Constitution must prove their compatibility, otherwise they will be deemed as void.
Under Article 13, the term ‘law’ includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India. The ‘laws in force’ include “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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed.” The Supreme Court has observed that the Article 13 refers to a ‘legislative’ law (made by a legislature) and does not include a ‘constituent’ law (made to amend the Constitution).

It is to be noted that judicial review as a norm has evolved over the years to uphold the principles of ‘natural justice.’ The Supreme Court of India and the High Courts are vested with the power to rule on the constitutionality of both legislative and administrative actions. In most cases, the power of judicial review is exercised to protect and enforce the fundamental rights.
The Article 13 has expanded the scope of judicial review. The Indian judiciary is approached not just to ensure fairness in administrative action but also to rule on questions of legislative competence, mainly in the context of Center-state relations.

The 24th amendment to the Indian Constitution was enacted by the then Indira Gandhi government in November 1971. The objective was to nullify the Supreme Court’s ruling that had left the Parliament with no power to curtail the Fundamental Rights. Clause (4) was inserted in Article 13, which states: “Nothing in this article shall apply to any amendment of this Constitution made under article 368.” This provision added more power to the Parliament when it comes to amending the Constitution. It brought Fundamental Rights within the purview of amendment procedure and judicial intervention or review of those amendments was prohibited.
The amendment evoked sharp reactions from the media fraternity and they explained this move as “too sweeping.” The amendment faced equal criticism from the jurists and the members of the Constituent Assembly. The draconian nature of the amendment was further reflected in the fact that the new provision made it obligatory for the President to give his assent when a Constitution Amendment Bill is submitted to him.