Constitution of India is Supreme, means all laws of the land must be in accordance with the provisions of the constitution. Every new law created by the parliament should be strictly in accordance with the provisions of the constitution. Constitution is divided into numerous articles, and , Article 13 is one the most important article among them. This article explains what is a law and also explains which are the laws considered as violations of fundamental rights.
Article 13 clearly makes the supremacy of the constitution. The supremacy of the constitution is underlined in this article and makes it clear that judicial review for the existing and new law is possible. Pre-constitutional laws are open for judicial reviews, and judicial review guarantee the protection and enforcement of fundamental rights.
Article 13 of the Constitution
Existing laws:
It says that, all laws in force immediately before the commencement of the constitution, in so far, as they are inconsistent, shall, to the extent of such consistency, be void.
The state can not make any law which violates fundamental rights and any contravention , to the extent of the contravention, will be void.
The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. If you go by the words of the article, it is clear, that, unless the context otherwise requires, law include ordinance, order, bye law, rule, regulation, notification, custom, usages having in the territory of India the force of law. Laws in force includes laws passed or made by legislature or other competent authority in the territory of India, before the commencement of this constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
This article have Nothing which shall apply to any amendment of this Constitution made under Article 368.
Article 13 clearly says that, the provisions of the article does not have any retrospective effect, that means all inconsistent laws become void only from the date of commencement of the constitution. Even if a law become inconsistent with the provisions of the constitution, all earlier actions done as per the said act, before the commencement of the constitution is valid. The provision of the law is clearly established by the decision of the Supreme court of India, in the case of Keshavan Madhava Menon case. The contention was the act questioned in the case was inconsistent with the fundamental right enshrined, so void. But the points in question was happened well earlier than January 26, 1950, so the court rejected the contention and held that the Article 13 has no retrospective effect.
But the position is entirely different in the case of future laws. No law can be made which will take away or limits any of the fundamental rights conferred by the constitution.
In several cases it was clearly explained the Supreme court that, any law which is against the fundamental rights, either in whole or in part, is void. The point which is to noted here is that, it will be void to the limits in the fundamental right. To make it more clear, the term void means only to the rights conferred in the fundamental right in question.
The term law also explained Article 13. It says that the term law includes any ordinance, order, bye law, rule, regulation, notifications, customs or usages having the force of law. But it does not include Hindu law or muslim law.
The article also defines the term law in force. It says that law in force includes, law passed by or made by a legislature or other competent authority in the territory of India before the commencement of the constitution and not previously repealed.
In the case of Shankari Prasad V Union of India and also in Sajjan Singh Vs State of Rajastan, it was questioned that whether a fundamental right can be amended by a constitutional amendment. Supreme court of India, rejected the negative contention and held that fundamental rights can be amended by process followed by Article 368 and the term law also includes the law made by amending the constitution. But Golak Nath case was a deviation from the above decision. In this case Supreme court held that if an amendment to the constitution takes away the fundamental rights, it will be declared as void and ultra vires.
The above decision of the Supreme court, created a confusion, that , even by an amendment to the constitution, a fundamental right can not be touched. Keshavanda Bharati case was turning point, where, the Supreme court held that, by an amendment to the constitution, a fundamental right can be amended, only thing which need to be taken care is, the basic structure cannot be amended.