सं Samvidhan

The Constitution of India

Article 13

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,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.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

Why this exists

The framers wanted the Fundamental Rights in Part III to be more than just promises — they wanted them to be legally enforceable against both old colonial-era laws and future laws made by independent India's government. Article 13 was the mechanism to strike down any law, old or new, that conflicted with these rights, making the Constitution's rights supreme over ordinary legislation.

How courts read it

Courts developed key doctrines around Article 13. In cases like Bhikaji Narain Dhakras v. State of Madhya Pradesh, the Supreme Court created the 'doctrine of eclipse' — a pre-Constitution law inconsistent with Fundamental Rights isn't dead, just dormant, and can revive if the right is later amended away. The 'doctrine of severability' (State of Bombay v. F.N. Balsara) allows courts to strike down only the offending part of a law, keeping the rest alive. The biggest debate was whether a constitutional amendment counts as 'law' under clause (2). In Shankari Prasad (1951) and Sajjan Singh (1965), the Court said amendments are not 'law' under Article 13 and can touch Fundamental Rights. This was reversed in Golaknath (1967), which held amendments ARE 'law' and cannot violate Fundamental Rights. This tension led to the 24th Constitutional Amendment adding clause (4) and modifying Article 368, explicitly exempting constitutional amendments from Article 13. Finally, Kesavananda Bharati v. State of Kerala (1973) upheld this exemption but ruled that amendments still cannot destroy the Constitution's 'basic structure', preserving some judicial check even over formal amendments.

Common misconceptions
  • Myth: Article 13 makes an inconsistent law completely dead and gone forever.
    Fact: Courts have held (doctrine of eclipse) that a pre-Constitution law inconsistent with Fundamental Rights is only 'eclipsed', not destroyed — it can become enforceable again if the relevant Fundamental Right is later removed or amended.
  • Myth: Article 13 lets courts strike down constitutional amendments just like ordinary laws.
    Fact: After the 24th Amendment added clause (4), Article 13 does not apply to constitutional amendments made under Article 368. However, courts (via the basic structure doctrine from Kesavananda Bharati) still check that amendments don't destroy the Constitution's fundamental framework.
  • Myth: If one provision of a law violates Fundamental Rights, the entire law is void.
    Fact: Under the doctrine of severability, courts strike down only the offending part of a law if it can be separated from the rest, leaving the remainder valid.