Introduction

Fundamental rights are considered to be on the level of God thus no one cannot amend them.
Article 13 of the constitution do upholds the supremacy over Indian constitution and do paves
the way to judicial review. This prescription do enable us to review the pre-constitutional and
existing laws.
‘People believe in law’ and to keep that belief the Drafting committee gave the concept of
Fundamental Rights in Part III of the Indian constitution. It gives liberty to the citizens of India
and protects it from being infringed by the state. It also provides for the remedy if their
fundamental right is violated.
Article 13 of the Indian constitution which presents itself in four parts, makes the concept of
fundamental rights more powerful and gives it a real effect. This article protects the individual’s
fundamental rights by rendering any law null and void if it intervenes with the liberty or is
inconsistent in any way with the fundamental right of the person.
Origin and development of Fundamental Rights:
Amongst all the borrowed features, the idea of fundamental rights was taken from the
constitution of the United States. The Indian National Congress in Bombay in 1918 suggested a
declaration be included in the Government of India Act which contains the rights of people as
British citizens. Finally, the constituent assembly adopted the Objective Resolution on January
22, 1947, and pledged to guarantee and secure the fundamental rights of the people.
Need for Fundamental Rights
A country provides its citizens with some rights which add to their growth and development and
enables them to live a life of utmost dignity. Amongst these rights, there are some rights of
fundamental nature.
The term ‘Fundamental’ is used as these rights are most essential of all rights without which the
survival of an individual is not possible. Fundamental rights embody the spirit to secure the
dignity and liberty of the individual and protect it from any invasion of the state.
Meaning and scope
Through this article (article 13), the parliament and state legislatures are being terminated from
making such laws that may infringe or take away the fundamental rights that are being
guaranteed by the Indian constitution itself.
The pre- constitutional laws may not be able to meet the changing and developing needs of
today's world, therefore article 13 do gives the power to the supreme court and high court of
India to re-write the pre-constitutional laws, so as to make the laws meet the changing conditions
of today's lifestyle of people. Introduction to article 13
Article 13 of the constitution do talks about the four principles relating to fundamental rights.
Fundamental rights do exist from the date on which the Indian constitution came into force i.e on
26th January 1950 hence fundamental rights became operative from this date only.
Article 13(1) talks about the pre-constitutional laws i.e. the day from which the constitution came
in existence there were many laws in the country and when the constitution came into existence
fundamental rights do came, therefore the laws before the existence of the constitution must
prove their compatibility with the fundamental rights, only then these laws would be considered
to be valid otherwise they would be declared to be void.
Article 13(2) talks about the post constitutional laws i.e. it says that once the constitution is
framed and came in effect then any of the state may not make laws that takes away or abridges
the fundamental rights of an individual and if done so then it would be void till the extent of
contravention. Case Law
State of Gujarat v. Ambika mills
Here, a certain labour welfare fund act was challenged, as certain sections in it were against the
fundamental rights. Since the fact that the laws made by the state after the constitution is framed
would be declared void if those laws are against the fundamental rights, but here the question
arose that fundamental rights are only granted to citizens but what will happen in the case of
non-citizens or a company (company here is the respondent i.e. Ambika mills). It was held by the
apex court that since the fundamental rights are only granted to the citizens but not to the
company or any non-citizen, therefore the labour welfare fund act is valid.

Is Constitutional amendment a ‘Law’ under Article 13 (2). –

The court held that the word ‘law’ in clause (2) did not include law made by Parliament under
Article 368. The word ‘law’ under Article 13 must be taken to mean rules or regulations made in
exercise of ordinary legislative power and not amendments to the Constitution made in exercise
of Constitutional power and, therefore, Article 13 (2) did not affect amendments made under
Article 368. This interpretation of Shankari Prasad’s case was followed by the majority in
Sajjan Singh v. State of Rajasthan.
But in historic case of Golak Nath v. State of Punjab, was heard by a special bench of 11
judges as the validity of three constitutional amendments was challenged. The Supreme Court by
a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368
has no power to take away or abridge the Fundamental Rights contained in chapter III of the
constitution the court observed.
(1) Article 368 only provides a procedure to be followed regarding amendment of the
constitution.
(2) Article 368 does not contain the actual power to amend the constitution.

JUDICIAL REVIEW
"Judicial Review" is defined as the interposition of judicial restraint on the legislative and
executive organs of the Government. It is the "overseeing by the judiciary of the exercise of
powers by other co-ordinate organs of government with a view to ensuring that they remain
confined to the limits drawn upon their powers by the Constitution." The concept has its origins
in the theory of limited Government and the theory of two laws - the ordinary and the Supreme
(i.e., the Constitution) - which entails that any act of the ordinary law-making bodies that
contravenes the provisions of the Supreme Law must be void, and there must be some organ
possessing the power or authority to pronounce such legislative acts void.

DOCTRINE OF ECLIPSE
“Constitution is the “will” of the people whereas statutory laws are the creation of legislators
who are the elected representatives of the people. Where the will of the legislature – declared in
statutes – stand in opposition to that of the people – declared in the Constitution – the will of the
people must prevail.”
- Supreme Court on Record Association v. Union of India, AIR 1994 SC 268: (1993) 4 SCC 441

Definition of Doctrine of Eclipse:

It provides that a law made before the commencement of the constitution remains eclipsed or
dormant to be extent in comes under the shadow of fundamental rights i.e., is inconsistency
brought about by the fundamental rights is removed by the amendment to the Constitution of
India.
-In giving to ourselves the Constitution, “We the People” have reserved the fundamental
freedoms to ourselves. This reservation was incorporated by framers of our Constitution in
Article 13. This article is not only the source of the protection of fundamental rights, but also the
expression of reservation.
DOCTRINE OF ECLIPSE
This doctrine is applicable to pre-existing laws only. It implies that an existing law which
violates fundamental right is not dead or void per-se but only becomes unenforceable. "It is
over shadowed or eclipsed by the fundamental rights and remains dormant but it is not
dead." If by subsequent amendment fundamental rights are amended in such a way as to
give way to these laws, then these laws will again become active
WHETHER THE DOCTRINE IS APPLICABLE TO POST CONSTITUTIONAL
LEGISLATIONS?
Some laws are held unconstitutional by the courts, now in this scenario, the legal position that
remains is that though the law exists in statute books, because of a court decision they are
inoperable, therefore in law there is an eclipse cast upon their implementation. Doctrine of
eclipse deals with pre constitutional law Art 13(1).
Art 13 provides that any law which made before the commencement of constitution must be
consistent with the part III of the constitution. if any statue is inconsistence with the provisions
of part III of the constitution such statue shall become void. At the same time such statue shall
not be treated as Dead unless it is abolished by Indian Parliament. It will be treated as dormant or
remains eclipsed to the extent it comes under the shadow of the fundamental rights. Regarding
the doctrine of eclipse few points need to be considered. It is held to be applied only the Pre-
Constitutional Laws, and not to be post constitutional laws.

MEANING OF LAW: PRE‐ AND POST‐CONSTITUTIONAL LAW

TANGLE
Rival opinions abound as to the application of doctrine of eclipse to pre‐ and post‐ constitutional
law. The implications of different opinions are profound and have a far‐ reaching impact
on the nature of law as provided under Article 13 of the Constitution. It is the general view
that doctrine of eclipse applies only to the pre‐constitutional laws, and not to the post ‐
constitutional laws.
Bhikaji v/s State of MP AIR 1955
The MP Government passed an Act in the year 1950 for nationalizing the motor transport before
commencement of the constitution. The statue was challenge by the petitioner under Art 19(1)
(g). The Center Govt. Amended Act 1955 on 27-4-1955 enabling the state to nationalize the
motor transport. That SC held that the statue of MP sate State nationalizing the motor transport
1950 was cured by the 4th Amendment Act 1955 and therefore the Doctrine of Eclipse has been
applied and the such Act is valid. The above doctrine is important as regards the validation of
void laws. Certain existing laws sometimes may get eclipsed by reason of their clash with the
exercise of fundamental rights contained under Part III of the Constitution. There are certain
pertinent questions in this context like whether the doctrine of eclipse applies only to the pre‐
constitutional laws or to the post‐constitutional laws also, whether the laws in force before the
commencement of the constitution become void ab initio or void in to if they are inconsistent
with a fundamental right. And also what about the persons whose rights it does not affect: does
the voidness of the law depend upon the person whose fundamental rights it contravenes? The
guiding light can be traced to Article 13 which provides inter alia that „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.” The voidness of such law is limited to the extent of inconsistency with the provisions of
Part III of the Constitution.

In Keshavan Madhav Menon v State of Bombay

The effect of Article 13(1) was in question before the Court. The Court had to decide the import
of Article 13 in this case. The broad issue in this case was whether a prosecution commenced
before the commencement of the Constitution, could be continued after the Constitution came
into force if the concerned Act became void given that it violated Article 19(1) (a) and (2) of the
Constitution. Das J observed that the prosecution could be continued because the provisions of
the constitution were not retrospective provided they were explicitly so declared. It is axiomatic
from the provisions of the constitution that it has no retrospective effect. Part III of the
constitution is prospective. And that being so, the existing laws can become, and can be
rendered, void from the date of the commencement of the constitution. An existing law becomes
inoperative only from the date of the commencement of the constitution. The very fact that it is
inconsistent with the fundamental rights does not make it a dead law. As far as the determination
of rights and obligation incurred before commencement of the constitution is concerned, such a
law is a good law.
In Bhikaji Narayan v State of Madhya Pradesh, the Supreme Court formulated the doctrine of
eclipse thus: The true position is that the impugned law became, as it were, eclipsed, for the time
being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was
to remove the shadow and to make the impugned Act free from all blemish or infirmity.
Therefore, the doctrine implies that the shadow cast by the fundamental right can be removed by
a subsequent amendment to the constitution, and once it is so done, the law in its suspended or
eclipsed state is thereby revived. It gets revived, freed from all blemishes and infirmity. That is,
the pre‐constitutional laws continue to be law though in an eclipsed state. They are inoperative
laws whose revival in post constitutional period is contingent upon a subsequent amendment that
would remove the shadow.
In Keshavan Madhava Menon, Mahajan, C J observed that: …the part of the section of an
existing law which is unconstitutional is not law, and is null and void. For determining the rights
and obligations of citizens the part declared void should be notionally taken to be obliterated
from the section for all intents and purposes, though for the determination of the rights and
obligations incurred prior to 26 January 1950, and also for the determination of rights of persons
who have not been given fundamental rights by the constitution.

DOCTRINE OF SEVERABILITY
IT IS NOT THE WHOLE ACT WHICH WOULD BE HELD INVALID BY BEING
INCONSISTENT WITH PART III OF THE CONSTITUTION, BUT ONLY SUCH
PROVISIONS OF IT WHICH ARE VIOLATIVE OF THE FUNDAMENTAL RIGHTS
-Doctrine of Severability
During the development of the Constitution our Constitution maker wanted it to be as ideal as
possible. As a result, it took 38 days, to discuss the provisions of Part III while making of the
Constitution. Part III exists to protect the ‘Rights’ and ‘Freedom’ of people from the arbitrary
action of the State. Article 13 of the Constitution sums up the above-given analogy. According
to Article 13(1) states about pre-constitutional laws which are not consistent with the
Fundamental Rights will be struck off.
-The doctrine of Severability is also known as the Doctrine of Separability. According to it,
if a provision is inconsistent with the Fundamental Rights, the whole Statute will not be held
void. Only those inconsistent provisions becomes void and not the whole statute.
Origin of the Doctrine of Severability
The doctrine of severability didn’t orginate in India; rather it finds its roots in England. In the
case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd., here the
issue was related to a Trade clause. Here the disputed clause was severable; and hence only a
part of it became void. In this case, however, it was not exactly the doctrine of severability; it
was ‘doctrine of blue pencil’.

Conclusion
Doctrine of Severability is a principle which came from England, evolved in various
International rulings and was recognized in India as a part and parcel of Article 13 of the Indian
Constitution. It has been established that it protects every citizen from getting their Fundamental
Rights violated. The said doctrine is valid in both Pre-Constitutional and Post-Constitutional
Laws.
What makes this doctrine very appealing is that, it protects the Whole statute from the
repercussions of having any faulty provisions. If any provision of law is violative of
Fundamental Right and its presence has no cardinal or substantial effect in the operation of the
Statute, then under this Doctrine; Court may held that particular provision to be the faulty one
and void, while the Whole Statute will still be operative.
case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd., here the
issue was related to a Trade clause. Here the disputed clause was severable; and hence only a
part of it became void. In this case, however, it was not exactly the doctrine of severability; it
was ‘doctrine of blue pencil’.
Another case is Cardegna v. Buckeye Check Cashing where the Hon’ble Supreme Court held
that if the contract is void ab initio; in such situation, the Court will not apply the ‘doctrine of
severability’.
The doctrine of Severability – Landmark Judgments
A.K Gopalan v. State of Madras – 1950
The disputed Statute here was Prevention Detention Act, 1950 in the light of Article 19 and 21 of
the Indian Constitution. The Supreme Court held that the whole Statute will not be struck off, but
only the unconstitutional provision will be considered void. Conclusively, Section 14 of the Act
was severed and held void, while the other provisions remain intact within the Statute.
State of Bombay v. F.N. Balsara – 1951
The disputed Statute here was Bombay Prohibition Act, where the unconstitutional provision
was held void and inoperative while the other part of the Act was intact and the Statute was still
be remaining in the force.
The State of Bombay v. R.M.D. Chamarbaugwala – 1957
The Court applied the Doctrine of Severability in this case and the Court laid down various rules
regarding the said doctrine:
Rules
1. The intention of the legislature behind this is the determine whether the invalid portion of the
statute can be severed from the valid part or not.
2. And if it happens that the both the valid and invalid parts can’t be separated from each other
than the invalidity of the portion of the statute will result in invalidity of the whole act.
3. Even if it happens that the invalid portion is separate from the valid portion.
4. In the Statute, if the valid parts and the invalid parts are independent and absence of one will
still have a cardinal effect on another, but the operation of the Statute could still be made then
also it will be rejected in its entirety.
5. The severability of the valid and invalid provisions of a Statute does not depend on whether
provisions are enacted in same section or different section, it is not the form but the substance of
the matter that is material and that has to be ascertained on an examination of the Act as a whole
and of the setting of the relevant provisions therein.
6. If after the invalid portion is expunged from the Statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck down
as void as otherwise it will amount to judicial legislation.
7. In determining the legislative intent on the question of severability, it will be legitimate to take
into account the history of legislation, its object, the title and preamble of it
Minerva Mills v. Union of India – 1980
In this case as well, the whole Statute was left intact and only disputed provisions which were
proved to be in inconsistent with the Fundamental Rights were held void.
D.S. Nakara & Ors. v. Union of India – 1982
Doctrine of Severability was used in this case as well, the whole Statute was left valid and only
the disputed provision which were proved to be in incognisant with the Fundamental Rights were
removed from it.
Kihoto Hollohan v. Zachillhu – 1992
In this case the paragraph 7 of the Tenth Schedule which was first inserted by the 52nd
Amendment Act of 1985 was declared as unconstitutional because it had violated the provisions
under Article 368(2). But the whole part was not declared unconstitutional. So, the rest of the
Tenth Schedule excluding paragraph 7 was upheld by the Constitution.

Features of Doctrine of Severability

1. Applicability
Article 13(1) is applicable toward any such Laws which seems to be inconsistent with the
Fundamental Right. It restrains the Legislatures to enact any Law which contravenes the
Fundamental Rights of the people. It enables High Courts and Supreme Court to review any
Statute which deems to violate the Fundamental Rights.

2. Nature of the disputed provision

The disputed provision shall be proved to be inconsistent with the Fundamental Right in order to
held it to be void. Unless the same is not proven, the said doctrine would not applicable.

3. Severability
The disputed provision if proved to be inconsistent with the Fundamental Rights, the whole
Statute would not be considered void. Court will only unenforced that particular provision and
leave the whole Statute intact and enforced.
However, if the disputed provision is not separable from the whole Statute, i.e. either the whole
Statute becomes inoperable or its efficiency goes down with the absence of disputed provision;
Court will haphazard the whole Statute.

4. The burden of the Proof

The person who brings the matter to the Court and alleges that the said Statute violates the
Fundamental Right, it is on him to prove it by virtue of the rationale laid down in the case of
Chiranjit Lal Chowdhury v. The Union of India & Ors. that his Fundamental Rights have been
violated. He can also prove that he could be the subject of immediate danger as a result of any
Statute or law which is coming into force.

DOCTRINE OF WAIVER
This doctrine is based on the principle that a person is the best judge of his own interest and
when given full knowledge, the person should be allowed to decide for himself. The
Fundamental Rights exist in the Constitution not merely for an individual’s benefit, but are a
matter of public policy. Rights which are part of public policy cannot be waived.
Evolution of the doctrine
Shortly after the commencement of the Constitution, Indian courts met with the question of the
doctrine of waiver in Behram Khurshed Pesikaka v. The State of Bombay, 1954. Herein, it
was observed that fundamental rights are based on higher principles embodied in the preamble of
the Indian Constitution.
Salient features-
• Intention: It is an essential element that one must have intended such waiver. A right can be
waived only when done expressly or impliedly. Express waiver is done by writing or giving a
statement of waiver. Implied waiver is inferred from act or conduct of the person. There must be
an intended act, by the person asserting his right, relied upon by another person, which will
negate such assertion equitable anymore.
• Knowledge: Knowledge here implies that the person waiving their right must know of the
nature of right and consequences of such waiver. Knowledge includes the instrument of
understanding. By knowledge, it is not meant that the party waiving should know the intricacies
of the right. It is not required to have an absolute understanding of the exact scope of right but a
virtual and general understanding.

Landmark judgements
1. Behram Khurshed Pesikaka v. The State of Bombay:
In this case, it was held, “We think that the rights described as fundamental rights are a
necessary consequence of the declaration in the preamble that the people of India have solemnly
resolved to constitute India into a sovereign democratic republic and to secure to all its citizens
justice, social, economic and political; liberty of thought, expression, belief, faith and worship;
equality of status and of opportunity. These fundamental rights have not been put in the
Constitution merely for individual benefit, though ultimately they come into operation in
considering individual rights. They have been put there as a matter of public policy and the
doctrine of waiver can have no application to provisions of law which have been enacted as a
matter of constitutional policy.”
2. Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan &
Another:
This case is the leading authority till date. Herein, the Supreme Court held that a person cannot
waive his fundamental rights. However, minority opinion, held by Justice S.K. Das, was that the
determining factor of the waiver is not the source of right.
3. Olga Tellis v Bombay Municipal Corporation:
In this case, it was further held that there can be no estoppel against the Constitution. The
Preamble of the Constitution states India to be a democratic republic and no citizen could barter
away with fundamental rights.

Critical analysis
Having discussed the meaning of doctrine of waiver, some might get confused between
doctrine of waiver and that of estoppel. The effect of waiver and estoppel is more or less the
same, i.e., both prevent a person from challenging the constitutionality of a statute. But
there is a considerable difference between the two. Waiver means to give away the right
whereas estoppel is an impediment on a person, preventing him from making inconsistent
facts. The basis of estoppel is that a person cannot rely upon a statute and at the same time
challenge it. Estoppel is not a cause of action but a rule of evidence, meaning hereby, an
alleged matter of fact. Waiver can be construed as contractual, as the party has agreed not
to assert his right for some benefit.
Article 13 of Indian Constitution states that laws in force prior to commencement of the
Constitution shall be void to the extent inconsistent with part III of Constitution and laws made
by State inconsistent with part III, after such commencement, shall be to that extent void. It
directs the State to not to make any law which is a contravention of part III of the constitution.
However, an amendment made under Article 368 of the constitution is not subject to Article 13.
Article 14, which is “The State shall not deny to any person equality before the law or the equal
protection of the laws”, is a reflection of English doctrine of rule of law and equal protection
guaranteed under the American constitution. It is based on sound public policy appreciated in a
civilised society. The words of the article are directed towards the State instead of an individual.
It obliges and imposes a burden on the state. The State cannot do away with this responsibility by
saying that the individual wanted so. It cannot violate its constitutional mandate solely by
arguing that it was asked by the individual.
Fundamental rights are based on declarations made by the preamble of the Indian Constitution,
which encompasses higher principles of justice, liberty, equality. No distinction of individual
interest and public interest is made in fundamental rights. These fundamental rights exist as a
part of public policy and doctrine of waiver can have no applicability on rights operating as a
matter of public policy. But doctrine of waiver is applicable to waive some of the rights in
America.
This brings us to note reasons as to why there is such a difference between applicability on
doctrine of waiver in India and America. The American constitution is aimed at striking a proper
balance between personal liberty and social control. It was enacted in order to form a more
perfect union, establish justice, ensure domestic tranquillity, provide for common defence,
promote the general welfare and secure the blessings of liberty. However, the Indian Constitution
was enacted to secure to all citizens, justice, liberty, equality and fraternity.
At the early stage, it was understood that the American constitution is not self-executing. The
provisions were wide and general. It required subsequent legislation and judicial interpretation to
bring its provision into effect. Independence was given to the judiciary to evolve the content of
the right as well as its limitations. On the other hand, the Indian constitution is more detailed
than that of America. It consists of limitations imposed on rights. It would be inappropriate to
include doctrines, by judicial interpretation, on which the constitution is silent.
In Basheshar Nath v. CIT, Justice S.K.Das made an important point that a source of right,
contractual or statutory or constitutional, should not be the basis for allowing waiver. Rather the
test should be for whose benefit the right is conferred – the benefit of the general public or of the
individual. He contended that the right which is for individual benefit can be waived. However,
some rights are written in the Constitution and are regarded as fundamental. This places them at
a higher pedestal and subsequently, they cannot be treated alike with other rights. Thus, the
source is very much relevant.