LAWS INCONSISTENT WITH OR IN DEROGATION OF THE FUNDAMENTAL RIGHTS
– Article 13 provides teeth to Fundamental Rights.
– Judicial review is allowed is a part of basic structure of constitution. Nothing is beyond judicial review.
– Even the power of President & Governor is not beyond basic structure of constitution.
– Fundamental Rights got enforced on 26th January 1950. There were no fundamental rights prior to this.
– Fundamental Rights did not exist before 26th January 1950, so they can’t be enforced retrospectively.
– Doctrine of eclipse applies only to pre-constitutional Laws.
– Article 13 defines Law as any Law against Fundamental Rights is Null & Void.
In Keshav Madhav Menon v. State of Bombay , At the commencement of the constitution pre-existing constitutional law was not to be discarded in total. Then only parts could be eclipsed & made in consonance with the constitution.
In Daniel Latifi v. UOI , Personal Laws such as Muslim Law or Hindu Law are not covered by law as envisaged in Article 13.
In Shankari Prasad v. UOI , In this case SC held an amendment of constitution is not Law. Since it is not law, it does not fall within the ambit of Article 13(2). So, Fundamental Rights can be amended.
In Golaknath v. State of Punjab , 11 bench Judges said by overruling Shankari Prasad that amendment to constitution is Law. So, Fundamental Rights can’t be amended.
• To negate Golaknath (that time Indira Gandhi) passed legislation that an amendment can be done of fundamental rights which under Article 368.
In Kehsavnand Bharti v. State of Kerela , Article 13(4) was challenged in Supreme Court in this case upheld that fundamental rights can be amended subject to basic structure of the constitution. Article 13(4) is correct regarding amendment of constitution provided one does not infringe the basic structure of Constitution. Fundamental Rights can be amended as per Article 13(4) by not infringing basic structure of constitution