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The Core of Article 13

Article 13(2) of the Indian Constitution is a cornerstone of democracy. It explicitly states that the State shall not make any law that takes away or abridges the Fundamental Rights granted to citizens. Any law that violates this is void to the extent of the contravention. This provision empowers the judiciary to review and strike down legislative acts, a power known as Judicial Review.

The Parliamentary Challenge and the 24th Amendment (1971)

Parliament, seeking to assert its supremacy and facilitate social reforms, attempted to circumvent this judicial barrier. Through the 24th Constitutional Amendment in 1971, Article 13(4) was added. It clearly stated that a Constitutional Amendment would not be considered a “law” under Article 13(2) and hence, would be immune from judicial review on the grounds of violating Fundamental Rights. In essence, Parliament wanted to ensure it had the absolute power to amend any part of the Constitution, including Fundamental Rights.

The Judicial Counter: The Basic Structure Doctrine (1973)

This parliamentary ambition was curtailed by the judiciary in the landmark case of Kesavananda Bharati vs State of Kerala (1973). A historic 13-judge bench delivered a monumental verdict: while Parliament had the power to amend the Constitution, it could not alter its “Basic Structure” or essential framework.

This meant that even if an amendment was not considered a “law” under Article 13(4), if it destroyed or damaged the Constitution’s basic ethos (Basic Structure), the judiciary could still declare it unconstitutional.

Example:

· NJAC Case (2015): The 99th Constitutional Amendment, which established the National Judicial Appointments Commission (NJAC), was struck down by the Supreme Court. The Court held that it compromised the independence of the judiciary—a fundamental pillar of the Basic Structure.

Therefore, Article 13(4) does not grant Parliament unlimited amending power. The judiciary can still invalidate amendments based on the Basic Structure Doctrine.

Reinforcement: The Minerva Mills Case (1980)

The Court, in Minerva Mills vs Union of India, reiterated the limitations on Parliament’s amending power. It emphasized the harmony between Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV), ruling that this balance is itself part of the Basic Structure and cannot be disturbed by a constitutional amendment.

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Ground Reality and Contemporary Impact

1. Consistent Use of Judicial Review: The Supreme Court and High Courts have repeatedly used this power to strike down laws and executive policies that violate Fundamental Rights.
   · Example: While in ADM Jabalpur v. Shivkant Shukla (1976) during the Emergency, the Court controversially upheld state power suspending rights, this decision was later overruled and termed a “grave error” in the Justice K.S. Puttaswamy (Right to Privacy) case (2017).
2. Social Reality: Governments often introduce laws in the name of public interest that can curtail rights. The judiciary constantly strives to maintain a balance—for instance, between freedom of expression and maintaining public order.
3. Contemporary Examples:
   · The landmark Puttaswamy case (2017) explicitly declared the Right to Privacy a Fundamental Right, derived from Article 21.
   · The constitutional validity of the colonial-era Sedition Law (IPC 124A) is currently under challenge in courts, testing its compatibility with Fundamental Rights.

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Conclusion

Article 13 is the Guardian Article of the Indian Constitution. It has ensured that Fundamental Rights are not merely idealistic declarations but enforceable and protected guarantees. It is the very soul of Judicial Review.

· Pre-Golaknath Era: Parliament was considered supreme.
· Golaknath (1967): The Court held that Parliament could not amend Fundamental Rights, asserting its power.
· Kesavananda Bharati (1973): The Basic Structure doctrine was established, creating a delicate balance.
· Today: Article 13 provides the judiciary with a constitutional weapon to act as a check on both the government and the legislature, ensuring the preservation of the democratic spirit of the Indian Constitution.

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