Article 13: judicial review, 'law', severability, eclipse, waiver and the amendment question
LUG-104 Constitutional Law-I, Unit II: Laws inconsistent with fundamental rights (Article 13). · LLB · 60 min
Article 13 is the provision that makes fundamental rights enforceable against legislation: it voids pre-Constitution laws to the extent of inconsistency, forbids the State to make laws abridging Part III, and defines 'law' widely. This lecture covers judicial review under Article 13, the doctrines of severability (A.K. Gopalan, R.M.D. Chamarbaugwala), eclipse (Bhikaji Narain Dhakras, Deep Chand, Ambica Mills) and waiver (Basheshar Nath), the prospective operation of Article 13(1) (Keshavan Madhava Menon), and the long debate whether a constitutional amendment is 'law' (Shankari Prasad, Sajjan Singh, Golaknath, the 24th Amendment and Article 13(4), Kesavananda Bharati). Short notes on each doctrine are a fixture of the paper.
Objectives
- Explain each clause of Article 13 and the width of 'law' and 'laws in force' in clause (3).
- Explain judicial review as the function Article 13 confers and locate it in the Constitution.
- Apply the doctrines of severability, eclipse and waiver to problem facts with the leading cases.
- Distinguish the effect of Article 13(1) on pre-Constitution laws from Article 13(2) on post-Constitution laws.
- Trace the question 'is a constitutional amendment law under Article 13?' from Shankari Prasad to Kesavananda Bharati and Article 13(4).
Slides
- The text of Article 13
- Judicial review: what it is and where it comes from
- 'Law' and 'laws in force' in Article 13(3)
- Pre-Constitution laws and Article 13(1): Keshavan Madhava Menon (1951)
- Doctrine of eclipse: Bhikaji Narain Dhakras (1955), Deep Chand (1959), Ambica Mills (1974)
- Doctrine of severability: A.K. Gopalan (1950) and R.M.D. Chamarbaugwala (1957)
- Doctrine of waiver: Basheshar Nath v. CIT (1959)
- Is a constitutional amendment 'law'? Shankari Prasad (1951) and Sajjan Singh (1965)
- Golaknath (1967), the 24th Amendment and Article 13(4), Kesavananda Bharati (1973)
- Fundamental rights at a glance: categories and nature
- How the examiner asks it
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