Article 13 vis-à-vis Article 368 of the Indian Constitution

Introduction to Article 13 vis-à-vis Article 368 of the Indian Constitution

The interplay between Article 13 and Article 368 of the Indian Constitution has historically been one of the most controversial matters in Indian jurisprudence. This relationship is characterized by a constant clash between the Supreme Court of India and the legislature, involving a series of amendments designed to make the state immune to judicial scrutiny and counter-attempts by the judiciary to impose reasonable restrictions.¹ This ongoing dialogue ensures that the administration of justice and the functioning of the judiciary are not rendered irrelevant by other organs of the state.¹ While Article 13 deals with laws in derogation of Fundamental Rights, Article 368 provides the procedure and power for amending the Constitution.

Also Read : Doctrine of Eclipse: Meaning, Scope, and Constitutional Significance in Indian Law .

Defining the Protective Shield: Article 13

Article 13 acts as the primary protector of the rights enshrined in Part III of the Constitution.¹ It establishes a system of judicial review through two primary clauses:

• Article 13(1): This clause addresses pre-constitutional laws, stating that any such laws inconsistent with the Constitution become nullified or "ineffective and void" upon its commencement.¹

• Article 13(2): This prevents the State from enacting any future legislation that is not consonant with the Constitution, rendering any such law void to the extent of its inconsistency.¹

• Article 13(3): Provides an expansive definition of "law," which includes ordinances, orders, bye-laws, rules, regulations, notifications, and even customs or usages having the force of law.¹

The Amending Power: Article 368

Article 368 grants Parliament the authority to add, change, or repeal any article of the Constitution following specific prescribed procedures.¹ This power typically requires a special majority in Parliament and, for certain provisions, ratification by at least 50% of the State legislatures.¹ The central conflict arises when Parliament uses this power to amend the very Fundamental Rights that Article 13 is designed to protect.¹

The Chronological Evolution of the Conflict

The following landmark case laws detail the shifting legal landscape and the eventual emergence of the Basic Structure Doctrine.

1. Keshavan Madhava Menon v. The State of Bombay (1951)

In this early case, the Court clarified the temporal reach of Article 13(1). It ruled that this clause does not render existing laws void from the start (retroactively) but makes them "ineffective and void" only for the future, starting from the commencement of the Constitution.¹

2. State of Bombay v. Narasu Appa Mali (1951)

The Bombay High Court interpreted the definition of "law" under Article 13(3)(a). The Court held that the term was intended to cover statutory laws and did not include "personal laws" based on religion.¹

3. Shankari Prasad v. Union of India (1951)

This case involved a challenge to the Constitution First Amendment Act, 1951, which curtailed the right to property under Article 31.¹

• Petitioner's Argument: The word "law" in Article 13 should include constitutional amendments, making them subject to Fundamental Rights.¹

• Court's Ruling: Applying a literary rule of interpretation, the Court determined that "law" under Article 13 refers only to rules made through ordinary legislative power.¹ It concluded that a Constitutional Amendment Act under Article 368 is not "ordinary law" and is therefore not subject to the restrictions of Article 13(2).¹

4. Sajjan Singh v. State of Rajasthan (1964)

Following the precedent of Shankari Prasad, the Court upheld the Constitution Seventeenth Amendment Act. It held that the power to amend fundamental rights was a valid high constituent power intended to implement agrarian reform.¹

5. LC Golak Nath v. State of Punjab (1967)

In a historic reversal, an 11-judge bench delivered a landmark judgment that significantly restricted parliamentary power.¹

• Transcendental Rights: The Court characterized fundamental rights as "primordial rights" necessary for human development, occupying a transcendental position.¹

• Limitation on 368: The Court ruled that Article 368 provided only the procedure for amendment, not the substantive power to abridge fundamental rights.¹

• Definition of Law: By ruling that fundamental rights could not be amended, the judgment implied that a Constitutional Amendment Act was indeed "law" within the meaning of Article 13(2).¹

6. Kesavananda Bharati v. State of Kerala (1973)

Responding to the Golak Nath verdict and subsequent constitutional amendments (like the 24th Amendment), a 13-judge bench established the Doctrine of Basic Structure.¹ The Court ruled that while Parliament has the power to amend any part of the Constitution, including fundamental rights, it cannot alter or destroy its "basic structure".¹

7. State of Gujarat v. Shri Ambica Mills Ltd (1974)

The Court addressed whether a non-citizen corporation could claim that a statute was rendered void under Article 13(2) regarding fundamental freedoms that are specifically guaranteed only to citizens.¹

8. Indira Nehru Gandhi v. Raj Narain (1975)

This case arose from charges of electoral fraud against Prime Minister Indira Gandhi. In response to a High Court ruling against her, the 39th Constitution Amendment Act was passed to remove the jurisdiction of courts over election disputes involving high officials.¹

• Ruling: The Supreme Court declared Clause (4) of Article 329-A invalid, stating it was outside the purview of Parliament because it contradicted the basic structure.¹

• Basic Features: The Court held that "free and fair elections" and "democracy" are fundamental aspects of the Constitution's basic structure.¹ It also clarified that the basic structure test applies to constitutional amendments but not to ordinary legislation.¹

9. Minerva Mills v. Union of India & Ors (1980)

This case challenged Section 4 and Section 55 of the 42nd Amendment Act, which attempted to remove all limitations on Parliament's amending power and strip the courts of judicial review.¹

• Controlled Constitution: The Court noted that if such amendments were valid, a "controlled" constitution would become "uncontrolled".¹

• Judicial Review: The Court struck down the clauses restricting judicial review, stating that without it, Fundamental Rights would be a "mere adornment" and a right without a remedy.¹

• Current Standing: The Court concluded that the limited amending power of Parliament is itself part of the basic structure.¹

10. Shayara Bano v. Union of India (2017)

In the Triple Talaq judgment, the Court reaffirmed that Shariat law, when codified or recognized by the state, must comply with the fundamental rights guaranteed under the Constitution.¹

Conclusion

The evolution of the relationship between Article 13 and Article 368 has resulted in a constitutional balance where Parliament's power to amend is no longer absolute but is "controlled" by the Basic Structure Doctrine.¹ This ensures that while the Constitution can adapt to changing times, its core identity—including reasonableness, secularism, equality, and judicial review—remains inviolable.

Also Read : State under Article 12 of the Constitution of India