Meaning of Law and Judicial Review; Laws Inconsistent with or in Derogation of Fundamental Rights

1. Introduction #

The Indian Constitution establishes a constitutional supremacy, not parliamentary supremacy.
Under this framework, “law” is subordinate to the Constitution, and any law inconsistent with Fundamental Rights (Part III) is void.

This principle ensures that every legislative, executive, or administrative act conforms to the Constitutional mandate — guaranteeing the Rule of Law and protection of individual liberties.

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2. Meaning of “Law” under the Constitution #

The term “law” appears in Article 13, which forms the foundation for judicial review in India.

Article 13(1): All laws in force before the commencement of this Constitution, inconsistent with Fundamental Rights, shall be void to the extent of such inconsistency.
Article 13(2): The State shall not make any law that takes away or abridges Fundamental Rights; and any such law shall, to the extent of contravention, be void.

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2.1. Definition (Article 13(3)) #

(a) “Law” includes any ordinance, order, bye-law, rule, regulation, notification, custom, or usage having the force of law in India.
(b) “Laws in force” include laws made by any legislature or authority before the commencement of the Constitution.

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2.2. Scope of “Law” #

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2.3. Important Judicial Interpretations #

(i) Keshavan Madhava Menon v. State of Bombay (AIR 1951 SC 128) #

Held:
Article 13(1) applies only to pre-constitutional laws, and such laws are not void ab initio but only void to the extent of inconsistency with Fundamental Rights.

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(ii) A. K. Gopalan v. State of Madras (AIR 1950 SC 27) #

Held:
“Law” under Article 21 was initially interpreted narrowly as legislative law, meaning any law enacted by the legislature is valid if made by due process.

This view was later overruled in Maneka Gandhi v. Union of India (1978), which held that “law” must be fair, just, and reasonable, thus importing substantive due process into Indian jurisprudence.

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3. Judicial Review: Meaning and Constitutional Basis #

3.1. Meaning #

Judicial Review is the power of the judiciary to examine the validity of legislative enactments and executive actions with reference to the Constitution.

It ensures:

• Supremacy of the Constitution

• Separation of powers

• Protection of Fundamental Rights

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3.2. Constitutional Foundation #

Judicial Review flows from several Articles:

• Article 13 – Declares unconstitutional laws void

• Article 32 & 226 – Empower Supreme Court and High Courts to enforce Fundamental Rights

• Article 245 & 246 – Subject legislative power to constitutional limitations

• Article 372 – Continuation of pre-constitutional laws subject to the Constitution

Thus, judicial review is an essential feature of the Basic Structure of the Constitution (Kesavananda Bharati v. State of Kerala, 1973).

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4. Types of Judicial Review #

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5. Laws Inconsistent with Fundamental Rights (Article 13) #

Article 13 operates as a sword and shield:

• Sword: Courts can strike down unconstitutional laws.

• Shield: Protects Fundamental Rights from legislative encroachment.

5.1. Article 13(1): Pre-Constitutional Laws #

• All colonial or pre-1950 laws inconsistent with Fundamental Rights became void from 26 January 1950, to the extent of inconsistency.

• Example: Laws discriminating on religion or gender automatically ceased to have effect after 1950.

5.2. Article 13(2): Post-Constitutional Laws #

• The State cannot make any law that takes away or abridges Fundamental Rights.

• If it does, such law is void ab initio (invalid from the beginning).

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5.3. Doctrine of Eclipse #

• Applies to pre-constitutional laws that were valid when enacted but became inconsistent after the Constitution.

• Such laws are not dead, only eclipsed by Fundamental Rights.

• If the inconsistency is removed (e.g., by amendment), the law revives.

📘 Case: Bhikaji Narain Dhakras v. State of Madhya Pradesh (AIR 1955 SC 781)
The Court held that pre-constitutional law inconsistent with Fundamental Rights is not void, only dormant, and can revive if inconsistency ceases.

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5.4. Doctrine of Severability #

• If a law contains both constitutional and unconstitutional provisions, only the offending part is struck down, and the rest survives.

📘 Case: State of Bombay v. F. N. Balsara (AIR 1951 SC 318)
Some provisions of the Bombay Prohibition Act were invalid for violating Fundamental Rights; valid parts were saved.

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5.5. Doctrine of Waiver #

• Citizens cannot waive Fundamental Rights.

• Rights are guaranteed not only for individual benefit but also for public policy.

📘 Case: Basheshar Nath v. CIT (AIR 1959 SC 149)
The Court held that Fundamental Rights cannot be surrendered or waived by agreement.

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6. Landmark Case Laws (FIRAC Format) #

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CASE 1 — Kesavananda Bharati v. State of Kerala (1973 AIR SC 1461) #

Facts:
Challenge to the 24th, 25th, and 29th Constitutional Amendments limiting judicial review and altering Fundamental Rights.

Issue:
Whether Parliament’s power to amend the Constitution under Article 368 is unlimited.

Rule:
Parliament cannot alter the Basic Structure of the Constitution, including Fundamental Rights and Judicial Review.

Application:
The Court upheld Parliament’s power to amend but restricted it by the doctrine of Basic Structure.

Conclusion:
Judicial Review and Fundamental Rights form part of the Basic Structure and cannot be destroyed.

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CASE 2 — Minerva Mills Ltd. v. Union of India (1980 AIR SC 1789) #

Facts:
Amendments gave Parliament unrestricted power to amend Fundamental Rights to achieve Directive Principles.

Issue:
Could Parliament give primacy to Directive Principles over Fundamental Rights?

Rule:
Fundamental Rights and Directive Principles must exist in harmony; destroying either violates Basic Structure.

Application:
Unlimited amendment power violates Article 13 and Basic Structure.

Conclusion:
Judicial Review was reaffirmed as a basic feature of the Constitution.

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7. Significance of Article 13 and Judicial Review #

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8. Conclusion #

Article 13 and Judicial Review together create a constitutional safety valve that prevents the erosion of Fundamental Rights.
They establish that no organ of the State is above the Constitution.
This ensures that India remains a democracy governed by law, not by arbitrary power.

“The power of judicial review is the heart and soul of the Constitution.” — Justice H. R. Khanna