Here's a detailed explanation of judicial review under Article 13 of the Indian Constitution:
Article 13: Laws Inconsistent with or in Derogation of the Fundamental Rights
1. Scope: Article 13 establishes the scope of laws and decrees that are subject to judicial review. It refers to "laws in force" in the territory of India before the commencement of the Constitution, as well as laws enacted by the State after the Constitution's adoption.
2. Definition of 'Law': Article 13(3) defines 'law' to include any "Ordinance, order, bye-law, rule, regulation, notification, custom or usages" having the force of law within the territory of India.
3. Review of Pre-Constitutional Laws: Article 13(1) mandates that any law in force prior to the Constitution, which is inconsistent with the provisions of Part III (which lays down the Fundamental Rights), shall, to the extent of such inconsistency, be void.
4. Review of Post-Constitutional Laws: Article 13(2) prohibits the State from making any law that takes away or abridges the rights conferred by Part III. If such a law is enacted, it shall, to the extent of the contravention, be void.
5. Power to Declare Laws Void: The combined reading of these provisions gives the judiciary the authority to declare any law void if it contravenes the Fundamental Rights. In essence, the courts have the power to strike down both pre-existing laws and new laws enacted by the legislature if they violate any of the Fundamental Rights.
6. Doctrine of Severability and Doctrine of Eclipse: As a consequence of Article 13, two significant doctrines have been developed by the judiciary: the Doctrine of Severability (wherein only the offending portion of the law is struck down, not the entire law) and the Doctrine of Eclipse (wherein pre-constitutional laws inconsistent with Fundamental Rights are not dead but remain in a state of dormancy until made consistent).
7. Landmark Cases: Some of the most notable cases that elucidated the concept of judicial review under Article 13 include the Keshavananda Bharati case (1973), where the court held that the Parliament could not alter the basic structure of the Constitution, and the Maneka Gandhi case (1978), which expanded the interpretation of the right to life and personal liberty under Article 21.
In summary, Article 13 serves as a shield that protects the Fundamental Rights of citizens against legislative encroachments. It empowers the judiciary to review and nullify any legislative or executive act that infringes upon these rights, reinforcing the principle of the supremacy of the Constitution in the democratic setup of India.
