Article 13 of Indian Constitution: Judicial Review and Laws Inconsistent with Fundamental Rights

Judicial review is the power of courts to check whether a law or government action is valid under the Constitution, and to strike it down if it is not. The words "judicial review" do not appear in the Constitution, but Article 13 makes it unavoidable: if laws that break Fundamental Rights are "void", someone must declare them void, and that is the courts.

• Article 13 gives the rule: inconsistent laws are void.
• Article 32 (Supreme Court) and Article 226 (High Courts) give the remedy: writs to enforce Fundamental Rights.
• Judicial review is part of the basic structure (Minerva Mills, 1980; L. Chandra Kumar, 1997), so even an amendment cannot remove it.

1. Doctrine of Eclipse (mainly Article 13(1))

A pre-constitutional law that clashes with a Fundamental Right is not wiped out. It becomes dormant: it cannot be enforced, but it stays on the statute book. If the Fundamental Right is later amended so the clash ends, the law revives on its own.

• Keshavan Madhava Menon v. State of Bombay (1951): a pre-1950 law is not void from the start; acts done before 1950 stay valid.
• Bhikaji Narain Dhakras v. State of M.P. (1955): a 1948 C.P. and Berar motor transport law clashed with Article 19(1)(g). The First Amendment (1951) changed Article 19(6), the shadow lifted, and the law revived. This is the classic example.
• For post-1950 laws, the rule is stricter: a law that breaks a right of everyone is void from birth (Deep Chand, 1959). But a law that breaks a citizens-only right (like Article 19) still works against non-citizens and companies (State of Gujarat v. Ambica Mills, 1974).

2. Doctrine of Severability (Articles 13(1) and 13(2))

Both clauses say "to the extent of" the inconsistency or contravention. So courts cut away only the bad part and keep the rest, as long as the good part can stand on its own (R.M.D. Chamarbaugwalla v. Union of India, 1957).

• A.K. Gopalan (1950): only Section 14 of the Preventive Detention Act, 1950 was struck down; the rest survived.
• Shreya Singhal (2015): only Section 66A of the IT Act fell.
• Navtej Singh Johar (2018): Section 377 IPC (a pre-1950 law) was read down only to the extent it punished consensual adult relations.

The big fight between Parliament and the Supreme Court was over one question: is a constitutional amendment a "law" under Article 13? If yes, an amendment that cuts a Fundamental Right would be void.

• Shankari Prasad (1951) and Sajjan Singh (1965): No. An amendment is not "law"; Parliament can amend Fundamental Rights.
• Golaknath (1967, 11 judges, 6:5): Yes. An amendment is "law", so Parliament cannot take away Fundamental Rights. The Court used prospective overruling: the ruling applied only to the future, so earlier amendments stayed valid.
• 24th Amendment (1971): Parliament added Article 13(4) and Article 368(3): amendments are not "law" under Article 13.
• Kesavananda Bharati (24 April 1973, 13 judges, 7:6): upheld the 24th Amendment. Parliament can amend any part, including Fundamental Rights, but cannot destroy the basic structure.
• 42nd Amendment (1976) tried to make amending power unlimited (Article 368(4) and (5)). Minerva Mills (1980) struck those clauses down: limited amending power is itself a basic feature.

What is the basic structure?

The Constitution does not define it, and Kesavananda did not give a closed list. The Court adds to it case by case, like the hidden pillars of a building. Recognised features include supremacy of the Constitution, rule of law, judicial review, parliamentary democracy, secularism, federalism, separation of powers, free and fair elections and independence of the judiciary.