Article 13 and Judicial Review of Legislation

Article 13 of the Constitution is the rule that makes Fundamental Rights stronger than ordinary laws. It says that any law which takes away or cuts down a Fundamental Right is void (has no legal force) to the extent it does so. Judicial review is the power of the courts to check a law and declare it invalid if it breaks the Constitution.

Together, Article 13 and judicial review are the reason a court can say, "This law, or this part of it, cannot be used against you."

Why does it exist?

Think of the Constitution as the rule book of a cricket tournament, and every law as a decision made during a match. If a match decision goes against the rule book, the rule book wins. Without Article 13, Parliament or a state legislature could pass an ordinary law that quietly removes a right, such as the freedom of speech or the right to liberty, and citizens would have no remedy.

The makers of the Constitution wanted Fundamental Rights to be real limits on the government, not just good wishes written on paper.

What does Article 13 say, clause by clause?

Article 13 has four clauses:

• Article 13(1): Laws that existed before the Constitution began (26 January 1950) are void to the extent they clash with Fundamental Rights.
• Article 13(2): The State shall not make any new law that takes away or abridges (cuts down) Fundamental Rights. Any law made against this rule is void to that extent.
• Article 13(3): This defines "law" very widely. It includes not only Acts but also any ordinance, order, bye-law, rule, regulation, notification, custom or usage that has the force of law in India. So even a rule made by a department, or an old custom that courts enforce, can be struck down.
• Article 13(4): Added by the 24th Amendment Act, 1971. It says nothing in Article 13 applies to an amendment of the Constitution made under Article 368.

The word "State" here has the wide meaning given in Article 12. It includes the Union Government, Parliament, state governments, state legislatures, local bodies like municipalities and panchayats, and other authorities controlled by the government.

Where did judicial review come from?

The idea of courts checking laws comes mainly from the United States, where the Supreme Court claimed this power in Marbury v. Madison (1803). The US Constitution does not say it in so many words. India's makers wrote it clearly into the text instead. Article 13 says which laws are void. Article 32 lets a person go straight to the Supreme Court to enforce Fundamental Rights.

Article 226 lets a person go to a High Court. Dr B.R. Ambedkar called Article 32 the "very soul" and "heart" of the Constitution.

How does a court use it, step by step?

Suppose a law says no one accused under it can get bail for any reason.

1. A person in jail files a petition in the High Court (Article 226) or the Supreme Court (Article 32).
2. The court first presumes the law is valid. This is called the presumption of constitutionality: the person challenging the law must show why it is wrong.
3. The court then asks whether the law takes away a Fundamental Right, for example the right to liberty under Article 21, or the right to equality under Article 14.
4. If it does, the court asks whether the restriction is allowed by the Constitution and whether it is fair, just and reasonable.
5. If the law fails, the court can strike down the whole law, strike down only the bad part, or read it down (give it a narrower meaning so that it fits the Constitution). In bail matters under special laws, courts usually do not strike the law down. They read it along with Article 21, so the strict bail rule gives way when the delay becomes unreasonable.

The doctrines that come from Article 13

UPSC often asks about these by name:

• Doctrine of severability: If only one part of a law is bad, the court cuts out that part and keeps the rest, as long as the rest can still work on its own. The words "to the extent of" in Article 13 are the base of this idea.
• Doctrine of eclipse: A law made before 1950 that clashes with a Fundamental Right does not die. It goes into a shadow, like the moon during an eclipse. If the Fundamental Right is later amended so the clash disappears, the law becomes active again. The leading case is Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955).
• Post-1950 laws are different: In Deep Chand v. State of Uttar Pradesh (1959), the Court said a law made after the Constitution that breaks a Fundamental Right is void from the start (void ab initio), like a still-born child. In State of Gujarat v. Shri Ambica Mills (1974), the Court added a fine point: such a law is void only against the people whose rights it breaks. A law that breaks a right given only to citizens (like Article 19) can still apply to non-citizens, such as a company.
• Doctrine of waiver: A person cannot give up a Fundamental Right, even willingly. The Supreme Court said this in Basheshar Nath v. Commissioner of Income Tax (1959). These rights are also a limit on the State in public interest, not just a private benefit.

The fight over constitutional amendments

The biggest question was whether a constitutional amendment is a "law" under Article 13. This decided whether Parliament could amend Fundamental Rights.

• Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965): The Court said an amendment is not "law" under Article 13, so Parliament can amend Fundamental Rights.
• I.C. Golaknath v. State of Punjab (1967): An 11-judge bench, by 6 to 5, reversed this. It said an amendment is also "law", so Parliament cannot take away Fundamental Rights. The Court applied this only to future amendments, a method called prospective overruling.
• 24th Amendment Act, 1971: Parliament added Article 13(4) and Article 368(3) to undo Golaknath, saying amendments are outside Article 13.
• Kesavananda Bharati v. State of Kerala (24 April 1973): A 13-judge bench, by 7 to 6, upheld the 24th Amendment. But it said Parliament cannot change the basic structure of the Constitution. Now the limit came from the basic structure, not from Article 13.
• Minerva Mills v. Union of India (1980): The Court struck down clauses (4) and (5) of Article 368, added by the 42nd Amendment Act, 1976, which tried to bar courts from reviewing amendments. Limited amending power and judicial review were both held to be part of the basic structure.
• L. Chandra Kumar v. Union of India (1997): The Court said judicial review by the High Courts (Article 226) and the Supreme Court (Article 32) is part of the basic structure. It cannot be taken away even by an amendment.
• I.R. Coelho v. State of Tamil Nadu (2007): A nine-judge bench said laws placed in the Ninth Schedule on or after 24 April 1973 can be tested against the basic structure, including the core of Fundamental Rights.

Where judicial review is limited

The Constitution itself makes some exceptions:

• Article 31A (1st Amendment, 1951): protects certain laws on land reform and acquisition of estates from challenge under Articles 14 and 19.
• Article 31B and the Ninth Schedule (1st Amendment, 1951): laws put in this Schedule were protected from challenge on Fundamental Rights, though Coelho has now limited this.
• Article 31C (25th Amendment, 1971): protects laws made to carry out certain Directive Principles (Article 39(b) and (c)).
• Article 33: lets Parliament limit Fundamental Rights of the armed forces, police and similar forces.
• Emergency (Articles 358 and 359): some rights can be suspended. After the 44th Amendment Act, 1978, Articles 20 and 21 can never be suspended, even in an Emergency.

India's position and Indian examples

• Personal laws: In State of Bombay v. Narasu Appa Mali (1951), the Bombay High Court held that uncodified personal laws are not "law" under Article 13. This view has been doubted since, for example in a separate opinion in the Sabarimala case, Indian Young Lawyers Association v. State of Kerala (2018). In Shayara Bano v. Union of India (2017), the Supreme Court set aside instant triple talaq (talaq-e-biddat). Two of the majority judges treated it as part of a law in force and struck it down as manifestly arbitrary under Article 14.
• Special criminal laws: Laws like the UAPA, PMLA and NDPS Act are ordinary Acts of Parliament. So they too must pass the test of Part III. When courts give bail under them because of long delay, they are using Article 21 as a higher law, not ignoring the special law.
• UPSC Prelims 2026 asked a question on what counts as "law" under Article 13, which shows how directly this provision is tested.

Commonly confused concepts

• Article 13 vs Article 368: Article 13 limits ordinary laws. Article 368 is the power to amend the Constitution. Since 1971, amendments are outside Article 13 (Article 13(4)), but they are still limited by the basic structure doctrine.
• Doctrine of eclipse vs doctrine of severability: Eclipse is about time (an old law sleeps and can wake up later). Severability is about parts (the bad part of a law is cut off, the rest survives).
• Void ab initio vs voidable: A void law never had legal effect. A voidable act is valid until someone challenges it and a court cancels it.
• Judicial review vs judicial activism: Judicial review is the court checking whether a law fits the Constitution. Judicial activism is a broader term for courts taking an active role, such as giving directions to the government on policy gaps.
• Article 32 vs Article 226: Article 32 goes to the Supreme Court and covers only Fundamental Rights. Article 226 goes to the High Court and covers Fundamental Rights and also other legal rights, so its scope is wider.
• Striking down vs reading down: Striking down removes the law or part of it. Reading down keeps the law but gives it a narrower meaning so it fits the Constitution.

Issues, criticism and the way forward

• Undemocratic or protective? Critics say unelected judges should not cancel laws passed by elected legislatures. Supporters reply that the Constitution itself gives this power, so that a temporary majority cannot remove the rights of minorities or individuals.
• Delay in deciding challenges: Challenges to major laws can stay pending for years. Meanwhile the law keeps working, and people may suffer under a law later found invalid.
• Reading down vs striking down: When courts read down a law instead of striking it, lower courts and police may keep applying the old, harsh reading. This is one reason bail practice under special laws varies from court to court.
• Uneven access: Judicial review helps only those who can reach a High Court or the Supreme Court. Free legal aid under Article 39A and the Legal Services Authorities Act, 1987 is meant to close this gap, but many undertrials still lack good lawyers.
• Way forward: Experts suggest faster hearing of constitutional challenges by Constitution Benches, clearer drafting of laws so that they do not need reading down, and regular review of strict laws by Parliament itself.

Concepts to Know

• Fundamental Rights: The basic rights in Part III of the Constitution (Articles 12 to 35), such as equality, freedom of speech and the right to life. A person can go to court directly if they are violated.
• Void: Having no legal force at all, as if the law was never valid on that point.
• Ordinance: A temporary law made by the President (Article 123) or a Governor (Article 213) when the legislature is not in session.
• Bye-law and regulation: Smaller rules made by bodies like municipalities, or by departments, under the power given by a main Act. This is called delegated legislation.
• Basic structure: The core features of the Constitution, such as democracy, secularism, federalism, judicial review and the rule of law, which even Parliament cannot destroy by amendment.
• Ninth Schedule: A list of laws added to the Constitution by the 1st Amendment, 1951, which were protected from challenge on Fundamental Rights grounds.
• Constitution Bench: A bench of at least five Supreme Court judges, which must hear cases involving a big question about the meaning of the Constitution (Article 145(3)).
• Prospective overruling: When a court changes the law but applies the new rule only to the future, so that past actions stay valid.