Laws inconsistent with or in derogation of the fundamental rights

Article 8, Draft Constitution of India 1948

(1) All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) 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:
Provided that nothing in this clause shall prevent the State from making any law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law.

(3) In this article, the expression “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof.

Article 13, Constitution of India 1950

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) 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.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Article 13 (Draft Article 8) was debated in the Constituent Assembly on the 25, 26 and 29 November 1948. It declared that any existing law at the commencement of the Constitution that is inconsistent with Part III would be void.

The Chairman of the Drafting Committee moved an amendment to explicitly define the terms ‘law’ and ‘laws in force’. One member wanted the deletion of the words ‘custom or usage’ from the language of this amendment, arguing that it permitted the State, rather than people, to create custom. Although the Chairman clarified that this was not the case, he moved an alternate amendment to remove any doubts in interpretation, which was accepted without debate.

The amended Draft Article was adopted on 29 November 1948.