Art.13.

(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Constitution and not previously repealed. (Pre
Constitutional Laws Defination)
4) Nothing in this article shall apply to any
amendment of this Constitution made under article
368 (24th Amendment)
 Acc to 13(3), all the laws which can affect the
legal rights of a citizen comes under the ambit
of art13(3).by laws, noti etc. generally,
admim/executive orders are covered undr art
13(3) but administrative directions/instructions
for guidance are not covered as enforceable
legal obligations, secondly personal laws are
not governed under art 13(3)
Prospective Or Retrospective in Operation:
Keshavan Madhava Menon Vs. State of Bombay, 1951,128
The petitioner was prosecuted in 1949 for publication of a
pamphlet without permission and authority as required
under Press (Emergency Powers) Act, 1931. - During the
pendency of the prosecution the Indian Constitution came in
to force – guaranteed among other things freedom of press
under Art.19(1) (a) – the petitioner filed a petition under
Art.226 challenging the validity of the Act and consequent
prosecution under Art.19 (1) (a) – in appeal went to Supreme
Court
Held, the Constitution has only prospective operation. The
general rule is that all the statutes are prospective unless
specifically given retrospective operation. – A law void for
violating Fundamental Rights under Art.13(1) is void to the
extent of inconsistency from the date of the commencement
of the Constitution – It is not void ab initio.
A pre constitutional law is not altogether obliterated
(destroy/wipe out) from the statute book. – They exist for
the purpose of all transactions prior to the commencement
of the constitution. As there were no fundamental rights
prior to 1950, the offence committed by the person under
a valid law and his prosecution for the acts committed or
omitted under a valid law is perfectly valid.
The court allowed the prosecution – the court felt that the
impugned law need not be tested under Art. 19 (1) (a)
Doctrine of Eclipse
Whenever a law becomes void as it were for the violation of
Fundamental Rights, and such unconstitutionality is removed by the
subsequent amendment , facilitating the revival of that law which was
void, instead of passing a new law, in such cases it is deemed that the
above law was void only for a particular period of invalidity. In other
words it was under eclipse during that period
The questions that may arise
1. Whether such doctrine is applicable to pre-constitutional law
2. Whether such doctrine is applicable to post constitutional law also
In Bhikaji Narain Dhakras Vs State of Madhya Pradesh, 1955,781
S-43 of Motor Vehicles Act, 1939 , Motor Vehicles (Amendment) Act of
1947 authorised the provincial Government to run in competition with
the private operators the transport business. This provision was valid in
1947, but became void after the commencement of the constitution under
Art.19 (1) (g)
The constitution was amended, and the amendment came into
force on 18th June, 1951 authorizing under Art.19(6) which stated
that such monopoly by the state ‘whether to the exclusion,
complete or partial of the citizens’ ie govt is now authorized to
monopolise certain businesses. After the Amendment the Govt.
issued notification under the impugned Act for taking over the
transport. This was challenged.
Court held that though the Act was void between 26th January 1950
and 18th June 1951, the amendment had the effect of removing the
constitutional invalidity of S-43 and it is revived and comes into
operation from the date of amendment. He observed, the true
position is that the impugned law becomes as it were, eclipsed for
the time being. The constitution (1st Amendment ) Act,1951 was
to remove shadow and make impugned Act free from all blemish
and infirmity..such laws were not dead for all purposes. They
existed for the purposes of pre-constitutional rights and
liabilities and they remain in dormant and moribund condition
The judge also did not make distinction between post or pre
constitutional laws.
Whether Doctrine of Eclipse is applicable to Post
Constitutional Laws:
In Deep Chand Vs. State of UP, 1959, 648
UP transport Services (Development) Act 1953 came into force in
1955 was subject to challenge. The Act was held valid. The doctrine is
not applicable to post-constitutional laws since they are invalid from
the very inception because of being inconsistent with Part III.
It was observed that the post constitutional laws conflicting with the
fundamental rights are void ab initio, they are still born and can not
be revived.
But there is one vital difference between pre-Constitution
and post-Constitution laws in this matter. The voidness of
the pre-Constitution laws is not from inception. Such
voidness supervened when the Constitution came into
force; and so they existed and operated for sometime and
for certain purposes; the voidness of post-Constitution laws
is from their very inception and they cannot therefore
continue to exist for any purpose. This distinction between
the voidness in one case and the voidness in the other
arises from the circumstance that one is a pre-
Constitution law and the other is a post-Constitution
law; but the meaning of the word "void" is the same in
either case, namely, that the law is ineffectual and
nugatory and devoid of any legal force or binding effect.
State of Gujarat Vs. Ambica Mills ltd. 1974, 1300
A post-Constitution law which takes away or abridges the rights
conferred by Article 19 will be operative in regard to non-citizens
as it is void only to the extent of the contravention of the rights
conferred on citizens, namely, those under Article 19. When
Article 13 (2) uses the expression 'void', it can only mean void as
against persons whose fundamental rights are taken away or
abridged by a law. The law might be 'still-born' so far as the
persons' entities or denominations whose fundamental rights are
taken or abridged, but there is no reason why the law should be
void or 'still-born' as against those who have no fundamental rights.
If a law is otherwise good and does not contravene any of their
fundamental rights, non-citizens cannot take advantage of the
voidness of the law for the reason that it contravenes the
fundamental right of citizens and claim that there is no law at all.
Nor would this proposition violate any principle of equality before
the law because citizens and non-citizens are not similarly situated
as the citizens have certain fundamental rights which non-citizens
have not.
Doctrine of Eclipse and Article 368

• In I. C. Golaknath v. State
of Punjab(1967)
• Kesavananda Bharti v.
State of Kerela (1973)

(Background- Art 31 right to prop was FR) Sajjan Singh v State of
Punjab, 1963- 1st CAA limits the validity of FRs through insertion
Art 31A, 31B and modification in A19(1)(g). SC held that 1 st CAA
is valid and Parliament has power to amend FRSs made u/a 368. Art
13 is applicable to ordinary laws and it does not include consti
amendments.
 (Background: 17th caa- 9th schedule provide immunity to laws from
judicial review) Sri Sankari Prasad Singh Deo v. Union of India,
1951- 5 judges bench- 3:2, The meaning of law under art 13 does not
include a consti amendment, hence they cant be challenged under art
13. Parliam can amend FRs. CJ Gajendragadkar, If constitutional
framers at the time of framing constitution wanted to save FRs from
amendments, they would have expressly mentioned it.
 Golaknath v St of Punjab, 1967 – 11 judges bench, Under A368, the
power given to Parlia to amend the consti is not absolute but are
subjected to limitations. The power of Judicial Review is supreme, even
amendments can be challenged under art 13. Hence, Sajjan Singh and
Shankari Prasad are overruled.
 Parliament brought art 13(4) through 24th CAA acc to which if any
amendment is brought by Parliament under art 368 then it cannot be
challenged in the court of law.
 Kesavnanda Bharti v State of Kerela, 1973- Parl has power to amend the
whole consti. But cannot amend the basic structure of the consti like
Judicial review, etc. 24th CAA is valid.
 Doctrine of
Eclipse and section
309 (attempt to
suicide)
• Rathinam v. Union of India,1994
• Maurati Shripati Dubai v. State of Maharahtra
• Gian Kaur v. State of Punjab,1996
• Aruna Shanbagh v. Union of India, 2012
• Common Cause v. Union of India, 2017
Doctrine of Waiver of
Fundamental Rights
 Doctrine of Waiver of Fundamental Rights:
 In Behram v state of Bombay ,1954, Court held that fundamental
rights were not kept in the constitution merely for individual
benefits. These rights were put up as a matter of public policy and
therefore doctrine of waiver cannot be applied in the case of
fundamental rights. A citizen cannot invite discrimination by telling
the state ‘you can discriminate’ or get convicted by waiving the
protection given to him under article 20 and 21.

 The question was fully discussed by the Supreme Court in

Bashesarnath Vs. I.T. Commissioner, 1958, 149
Sections 5 and 8A of the Taxation of Income(Investigation
Commission) Act, 1947 were impugned. Under that law an
Investigation Officer appointed against the petitioner found huge
amount of money that was concealed.
There upon the Commissioner threw a hint that the petitioner can
enter into an agreement that he can pay the arrears of tax in
installments (Sec 8A). The petitioner agreed and filed an application
accordingly which was approved. Meanwhile in another similar case
the petitioner instead of entering into agreement, challenged the
provisions as above. In MUTHAIAH VS. IT (1956, 269) , these
contentions were accepted and those sections were held
unconstitutional. Hence the petitioner in the latter case need not pay
the arrears whereas the petitioner in the instant case had to pay
arrears of IT in view of his agreement. Treating this discriminatory, the
petitioner challenged the settlement he had with IT Dept. and
requested to absolve him from paying the installments. The
Government on the other hand argued that the petitioner’s
voluntary agreement amounts to waiver of his right to equality. Das
C.J., observed that Art.14 can not be waived for it is an admonition to
the state as a matter of public policy and state’s solemn obligation can
not be waived by an individual.
The Supreme Court has also applied the similar principle
Olga Tellis v. Bombay Municipal Corporation (AIR
1986 SC 180), wherein the pavement dwellers had, earlier,
waived off their right to object to the demolition of their
huts and, later, objected to the same while claiming their
right under Article 21 of the Constitution. The Supreme
Court stated that for fulfilling the purpose of the Preamble
of the Constitution, fundamental rights have been
conferred on citizens with certain rights granted to non-
citizens as well, and thus, cannot be bartered away by any
individual. Thus, the fundamental rights, in any case,
cannot be waived off by a person as such rights have been
constituted in order to safeguard interests which are
protected as a matter of public policy.
Doctrine of Severability
Whenever a provision of a statute or a part thereof
becomes void for violating fundamental rights the court
may sustain the remaining portion of the statute leaving
the invalid portion subject to certain limitations – this
principle of interpretation is known as Doctrine of
Severability.
Art. 13 facilitates this type of interpretation. A pre-
Constitutional law violating Fundamental rights would be
void to the extent of inconsistency. Similarly a post-
Constitutional violating Fundamental rights would be void
to the extent of contravention. Such provision is also
found under Art.254 where a state law is repugnant to union
law under concurrent list such law would be void to the
extent of repugnancy.
Some times the statute itself contains severability clauses as
A.K. Gopalan v State of Madras. 1950,27
The Preventive Detention Act 1950, is intra vires the Constitution
with the exception of S. 14 which is illegal and ultra vires. The
invalidity of S. 14 does not affect that rest of the provisions in the
Act. According to Sec.14 if any person is being detained under
this act then he or she may not disclose the grounds of his or her
detention in court of law, this particular statement is inconsistent
with that of fundamental rights as per article 22 of the Indian
constitution, thus if we do apply the doctrine of severability here
so the whole act (preventive detention act,1950) would not be
declared as void but only section 14 of the act would be declared
as void as it is inconsistent with the fundamental rights.
The principles of Doctrine of Severability were laid in the case of
R.M.D. CHAMARBAUGWALLA Vs. UNION OF INDIA, 1957,
124. It was held in this case trade and commerce protected by Art.
19 (1) and Art. 301 are only those activities which could be
regarded as lawful trading activities. As gambling, is not trade, it
does not fall within the purview of those Articles. Hence as regards
gambling competitions, the petitioners under Art. 32 cannot seek the
protection of Art. 19 (1) (g).
The Court observed that the definition of 'prize competition', in S. 2
(d) is wide and unqualified in its terms. There is nothing in the
wording of it, which limits it to competitions in which success does
not depend to any substantial extent on skill but on chance.
However the court held that the impugned provisions, assuming
that they apply by virtue of the definition in S. 2 (d) to all kinds of
competitions, are severable in their application to competitions in
which success does not depend to any substantial extent on skill.
 The court observed that when a statute is in part void, it will be
enforced as regards the rest, if that is severable from what is
invalid. Following the rules of construction laid down by the
American Courts where the question of severability has been the
subject of consideration in numerous authorities, the court
summarised as follows: -
1. In determining whether the valid parts of a statute are
separable from the invalid parts thereof, it is the intention
of the legislature that is the determining factor. The
test to be applied is whether the legislature would have enacted
the valid part if it had known that the rest of the statute was
invalid.
2. If the valid and invalid provisions are so
inextricably mixed up that they cannot be separated from one
another, then the invalidity of a portion must result in the
invalidity of the Act in its entirety. On the other hand, if they are
so distinct and separate that after striking out what is invalid,
what remains is in itself a complete code independent of the
rest, then it will be upheld notwithstanding that the rest has
become unenforceable.

3. Even when the provisions which are valid are distinct and
separate from those which are invalid, if they all form part
of a single scheme is intended to be operative as a
whole, then also the invalidity of a part will result in the failure
of the whole.
4. Likewise, when the valid and invalid parts of a statute are
independent and do not form part of a scheme but what is left after
omitting the invalid portion is so thin and truncated as to
be in substance different from what it was when it emerged out of the
legislature, then also it will be rejected in its entirety.
5. The separability of the valid and invalid provisions of a statute
does not depend on whether the law is enacted in the
same section or different sections; 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 provision 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
separability, it will be legitimate to take into amount the history
of the legislation, its object the title and the preamble
to it.
In State of Bombay Vs. F.N.
Balsara ,1951,318, In this case, law was
made on the sale, import, possession, of
liquor ie The Bombay prohibition act.
This state legislation incidentally
encroaches upon import and export of
liquor which is a subject of centre.
Doctrine of pith and substance was
applied and It was held that declaration
that some of the provisions of the Act are
invalid does not affect the validity of the
Act as it remains.
H.R. Banthia Vs. Union of India 1970,1463
Gold Contol Act, 1968 – the whole Act was held invalid as the
invalid portions are inextricably mixed

Kihota Hollohan Vs. Zachilhu 1993,412

Para 7 of the Xth Schedule which provided for finality of Speakers'
decision ousting the jurisdiction of the courts was held invalid. The
court observed.
Paragraph 7 of the Tenth Schedule contains a provision which is
independent of, and stands apart from, the main provisions of the
Tenth Schedule which are intended to provide a remedy for the
evil of unprincipled and unethical political defections and,
therefore, is a severable part. The remaining provisions of the
Tenth Schedule can and do stand independently of Paragraph 7
and are complete in themselves workable.
JUDICIAL REVIEW
Judicial Review
Power of the courts, ultimately that of the supreme court to
test any measure on the touch stone of the constitution and
refuse to enforce such measures that go against the
constitution
Judicial Review is the cornerstone of constitutionalism -It
keeps the creatures of the constitution in reasonable confines
It makes the democracy meaningful
It has dual purpose of bringing legitimacy to the system of
governance and keeps the government under the check
USA – Judicial Review was not specifically granted in the
Constitution - In Marbury Vs Madison (1803) Chief Justice
Marshall observed, Certainly all those who framed the
written constitutions contemplate them as forming the
fundamental and paramount law of the nations, and
consequently , the theory of every such government must be
that an act of the legislature, repugnant to the constitution, is
void ….
Though there were certain flaws in the decision it laid
strong foundation for judicial review and it received universal
acceptance including India.
Judicial Review in India
• In India, the judiciary is the guardian of the Indian
Constitution, the democratic atmosphere and individuals’
fundamental rights. Indian judiciary is empowered with
power of judicial review. The courts have power to review
all legislative enactments, executive and administrative
actions.
• The Indian Constitution explicitly provides for judicial
review through articles 13, 32, 136, 143, 226, 227 and 246.
• In India, Judicial review of legislative action is being
done by using some basic principles of Constitutional
Law i.e. doctrines of Pith and Substance, Colourable
Legislation, Severability, Liberal Interpretation,
Limitations of Stare Decisis, Unconstitutionality and
Eclipse, and Waiver. Doctrine of Basic Structure is one
of the most reliable grounds for judicial review.
 In L. Chandra Kumar Vs Union of India, 1997, 1125 it was
held that the power of judicial review over legislative action
vested in the High Court under Article 226 and in Supreme
Court under Art. 32 is an integral and essential feature of
the Constitution, constituting part of its basic structure.
So, the power of High Courts and the Supreme Court to test
the constitutional validity of legislations can never be ousted
or excluded. Therefore, the Supreme Court declared clause
2(d) of Art. 323A and clause 3(d) of Art. 323B unconstitutional
to the extent they excluded the jurisdiction of High Court and
Supreme Court under Art. 226, 227, and 32 of the Indian
Constitution.
¨This was a sequel to pre existing decisions of the Supreme
Court in Keshavananda Bharathi, 1973 (per Justice Khanna),
1461 and In Indira Nehru Gandhi Vs. Raj Narain, 1975,2299 –
Minerva Mills v UOI, 1980.
In S.A. Bola Vs. B.D. Sharma ,1997,3127
Constitutional Courts alone are competent and is their primary
constitutional duty to exercise the power of judicial review to
pronounce upon the constitutionality of the Act, Rules and Orders.
Judicial review, therefore, is the basic feature upon which hinges the
checks and balances blended with hind sight in the Constitution as
people's sovereign power for their protection and establishment of
egalitarian social order under the rule of law… The object of judicial
review is to maintain constitutionalism and to uphold the
constitutionality of the legislative Acts, administrative actions and
quasi-legislative orders within the confines of the Constitution, it is
basically directed against the actions of the State or its
instrumentalities.
►Even though all the general principles of interpretation are
applicable to constitutional interpretation as well, the judges of the
supreme Court always treated constitutional interpretation
differently.
►• In A.K.Gopalan v State of Madras, the court held that the
Constitution is supreme and every statute has to be in conformity
with the constitutional requirements. Moreover, it is the binding duty
of the courts to decide whether any law or statute is constitutional
or not. Justice Kania in Gopalan’s case observed, all though we are
to interpret words of the constitution on the same principles of
interpretation as we apply to any ordinary law, these very principles
of interpretation compel us to take into account the nature and the
scope of the Act we are interpreting - to remember that it is a
constitution, a mechanism under which laws are to be made and
not a mere Act which declares what the law is to be
Justice Bhagwati in Sampath
Kumar v Union of India held
that Judicial Review cannot be
abrogated by the Parliament
since it is essential feature of
the Indian Constitution.
Without the provision of
judicial review, the
enforcement of fundamental
rights would be meaningless.
In I.C. Golaknath Vs State of Punjab, 1967, 1643 the court
observed, there is an essential distinction between Constitution
and Statutes. Comparatively speaking Constitution is
permanent; it is an organic Statute; it grows by its own
inherent force. The Constitutional concepts are couched
in elastic terms. Courts are expected to and indeed should
interpret, its terms without doing violence to the language to
suit the expanding needs of the society.

In M. Nagaraj and Ors. v. Union of India and Ors. 2007,71, it

was held, The Constitution must be construed in wide and
liberal manner so that constitutional provision does not get
fossilized but remains flexible enough to meet newly emerging
problems and challenges.
In I.R. Coelho v State of Tamil Nadu and others,
AIR 2007 SC 861. The Supreme Court held that all
Constitutional amendments made on or after 24th
April, 1973 by which the Ninth Schedule is
amended by inclusion of various laws therein shall
have to be tested on the touchstone of the basic
features of the Constitution enshrined under Articles
14, 19 and 21. In order to clarify the situation, the
court further declared that even though an Act is put
in the Ninth Schedule by a constitutional
amendment, its provisions would still be tested on
the ground that they destroy or damage the basic
structure if the fundamental right or rights taken
away or abrogated pertains or pertain to the basic
structure.
• In famous decision of Lord Greene in Associated
Provincial Picture Houses Ltd. v Wednesbury Corpn.
(1947) 2 All ER 680, The court laid down “test of
reasonableness” which says that administrative action is
unreasonable if the action is based on wholly irrelevant
material or on wholly irrelevant considerations or if the
action is irrational.
• The judgment also laid down the “doctrine of
proportionality” as another basis for exercising judicial
review. If the administrative authority awards
disproportionate punishment, it becomes necessary for
the judicial court to intervene. Award of punishment
which is grossly disproportionate to the allegations
cannot claim immunity and remains open for interference
under limited scope of judicial review.
• In Delhi Development Authority v M/s UEE Electricals
Engg. Pvt. Ltd, (2004) 11 SCC 213. the Supreme Court
said that illegality, irrationality, and procedural impropriety
are grounds for judicial review of administrative action.
Courts do not interfere in an administrative decision unless
the decision is an outcome of an unfair procedure. Mere
suspicion of unfairness would not be sufficient. The
claimant has to prove the unfairness in the administrative
action in any of its form including abuse or a misuse by the
authority of its powers.
Indian courts have recognized the principles of natural
justice i.e rule of fair hearing and rule against bias, as a
precondition for administrative adjudication. Indian
judiciary has also widened the scope of these principles by
making the authorities more accountable and answerable in
Art.13 (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.
Gajendragadkar J in State of Bombay Vs. Narasu Appamali
1952.Bom84 observed, the framers of the Constitution wanted
to leave the personal laws out side the ambit of part III of
the Constitution……..they did not intend to include these
personal laws with in the definition of the expression ‘
laws in force’.
Ahmedabad Women Action Group (AWAG) v. Union of India AIR
1997 S C 3614 relating to the arguments of uniform civil code it
was held that there was no occasion to consider whether Part III of
the Constitution of India had any application to personal laws or
not. Suffice it to say that we are satisfied that the arguments
advanced before us as pointed out at the outset involve issues, in our
opinion, to be dealt with by the legislature.
 In number of cases the courts were reluctant to put the personal
laws to the test of constitutional law.
 Art. 13(4) Nothing in this article shall apply to any amendment of
this Constitution made under article 368.