Q. Consider the following statements with reference to Article 13 of Indian constitution:
1. A constitutional amendment inconsistent with fundamental rights is void under Article 13.
2. Custom or usage having force of law can be declared void if it violates Fundamental rights.
Which of the above statements is/are correct in the above context?
Exp) Option c is the correct answer.
Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void. Thus, it provides for judicial Review.
Statement 1 is correct. Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the ‘basic structure’ of the Constitution and hence, can be declared as void.
Statement 2 is correct. The term ‘law’ in Article 13 has been given a wide connotation so as to include the following:
(a) Permanent laws enacted by the Parliament or the state legislatures;
(b) Temporary laws like ordinances issued by the president or the state governors;
(c) Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and
(d) Non-legislative sources of law, that is, custom or usage having the force of law.
Thus, not only a legislation but any of the above can be challenged in the courts if it violates a Fundamental Right and hence, can be declared as void.
