On day 13, we have already read about the meaning of ‘the state’ and ‘private bodies’. We also saw that the absence of Fundamental Rights shall render the constitution meaningless. Asides, the spirit of our democracy depends upon how these rights are protected. Therefore, the constitution itself has made provisions to safeguard these rights. Article 13 tries to make sure that these rights are well protected.
Article 13 : Laws inconsistent with or in derogation of the fundamental rights.
It states following provisions with respect to the protection of fundamental rights:
All the laws in force in the territory of India immediately before the commencement of the Constitution shall be void to the extent of their inconsistency with Part-III (FUNDAMENTAL RIGHTS) of the Constitution. In other words, all those provisions of a law in force immediately before the commencement of the constitution which are inconsistent with the Part -III of the constitution shall be void. However, rest of the provisions of the same law which are not inconsistent with Part -III, shall not be void.
The state shall not make any law that takes away or abridges the rights conferred by part-III of the constitution. Asides, all those provisions of a law made which are in contravention of this clause shall be void. In other words, the law shall be void to the extent of its contravention of this clause.The second clause refers to the laws made after the commencement of the constitution.
(a) Here, “law” refers to all that has the force of law in the territory of India.This includes any Ordinance, Order, Bye-laws, Rule, Regulation, Notification, Custom or Usage. (b) Moreover, “laws in force”, as mentioned above, includes laws passed by the legislature of any other competent authority before the commencement of the Constitution.This does not include the ones previously repealed. This also includes those laws or parts of those laws which were not in operation either at all or in some areas.
Nothing in this article shall apply to any amendment of the Constitution made under article 368. In other words, it allows the parliament to make amendments in Part-III through the exercise of Article 368 but not through ordinary bills.
Please note that amendments through the exercise of Article 368 require a special majority i.e. the bill must be passed by both the houses of the Parliament not only by majority of members present and voting (simple majority) but must be passed by (a) the majority of the total strength (members) of the house along with (b) two third of the members present and voting. Asides, if a bill deals with the federal structure of India, then Article 368 requires the same to be ratified by half of the state legislatures as well after being passed by both the houses of the Parliament.
Thus, it is not easy to amend Part-III of the constitution. Although the Parliament has unfettered power to amend any part of the Constitution, the Parliament can not amend the basic structure of the Constitution which we shall read in the days to come.
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PS : The above texts are ‘not the exact texts’ copied from the Constitution of India.They have been modified in simple language for the ease of understanding. Due consideration has been given to ensure that ‘the spirit and the meaning’, as contained in the Constitution, remains the same. Please refer to the Constitution of India for the original texts. Please feel free to point out any discrepancy that comes across you. We shall be happy to modify the same.
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