Doctrines under Art. 13 of the Indian Constitution

 

Doctrines under Art. 13 of the Indian Constitution

Art. 13(1) of the Indian constitution constitutes two doctrines so as to protect the existence of Fundamental Rights.

Fundamental rights are the most precious gifts that our constitution offers to its citizens. They are above every other law(though with reasonable restrictions). To protect the existence and subsistence of these fundamental rights, two doctrines are originated under Art 13(1) of the Constitution.

Art. 13(1) of the Constitution reads as:

‘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.’

 

Thus, art. 13 (1) talks about pre-constitutional laws. As per Art. 13 (1), all the laws before the enactment of the constitution (pre-constitution laws) that are not in consistence with the Fundamental Rights shall be adjudicated void.

The two doctrines that hence originate are:

1.    1. Doctrine of Severability

2.   2. Doctrine of Eclipse

 

 Doctrine of Severability

The ‘Doctrine of severability’ is also known as the ‘Doctrine of Separability’. Severability means capable of being separated. The basic idea behind this doctrine is to separate. Separate What?

Under this doctrine, all the pre-constitutional laws not in consistence with the Fundamental rights are help void. It acts as a filter, a filter to separate all the pre-constitutional laws that are inconsistent with Fundamental rights.

If some provisions of a statute are inconsistent with Fundamental Rights, only those provisions are separated and held void(for citizens for India only, as non-citizens are not entitled Fundamental Rights). Other provisions of that statute undergo no change. But, in case the inconsistent and consistent are so inter-weaved that it is not possible to separate them, then whole statute/law is treated as Void.

That it acts as a sieve that filters out the inconsistent provisions and let the rest of the law pass through it.

A very landmark case of the doctrine of severability is:

A.K. Gopalan v. State of Madras

Under this case, Sec. 14 of the Preventive Detention Act was challenged. This Section was found violative of  Art 22 of the Constitution.

The Supreme Court in its judgement said that according to the doctrine of severability if Preventive detention Act is filtered out, only Sec. 14 is found to be inconsistent with Fundamental Rights, hence only sec. 14 shall be declared void and the rest of the act remains valid.

 

Doctrine of Eclipse

Eclipse means to hide or to overshadow or to cover. According to this doctrine, all laws inconsistent with Fundamental rights are over-shadowed/eclipsed by the fundamental rights themselves.

These laws become inoperative but their existence doesn’t end. If in future by some amendment those laws become consistent with Fundamental Rights, they shall be made active again.

So till the time, the laws are inconsistent with Fundamental Rights, they are covered and remain in a dormant stage and if in future they become consistent with Fundamental Rights, they will be active again.

These laws while in dormant stage remain unenforceable for citizens of India but not for the non-citizens as they don’t have any fundamental rights.

A very landmark case of the doctrine of eclipse is:

Bhikaji Narain Dhakras v. State of Madhya Pardesh

In this case, C. P. and Berar Motor Vehicles Amendment Act of 1947 was put to question. This act allowed the state government to wholly-solely take over the motor transport business. This was found inconsistent with Art 19(1) of the Constitution and was thus over-shadowed as per the doctrine of eclipse. However in 1951, by the 1^st Constitutional amendment, the act was amended and was now thus consistent with the Fundamental Rights. So, the act was again enforceable and valid for both citizens and non-citizens of India.

 

 

Hence first, the pre-constitutional laws undergo filtration in accordance with the doctrine of severability and then the inconsistent provisions that are filtered out and are in turn overshadowed by fundamental rights  and declared as non-operative(till the time they again become consistent) in accordance with the doctrine of eclipse.

 

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