Laws inconsistent with or in derogation of Fundamental Rights


Article 13 (1) declares that all laws in force territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of Part III of the Constitution. Clause (2) of this Article provides that the State shall not make any law which takes away or abridges the fundamental rights conferred by Part III of the Constitution; and any law made in contravention of fundamental rights shall to the extent of contravention be void. Clause (3) of this Article gives the term ‘law’ very broad connotation which includes ordinance, by-law, rules, regulation, notification, custom or usage having the force of law.

In Renu v. District and Session Judge[1] it was held that the main objective of Article 13 is to secure the paramountcy of the Constitution especially with regard to fundamental rights.

Article 13(1) is prospective in nature. All pre-constitution laws inconsistent with the fundamental rights will become void only after the commencement of the Constitution. They  are not void ab initito.

It was observed in the case of Keshava Madhav Menon v. State of Bombay[2] that there is no fundamental right that a person shall not be prosecuted and punished for an offence before the Constitution come in force. So far as the past Acts are concerned the law exists notwithstanding that it does not exist with respect to the future exercise of fundamental rights.

Doctrine of Severability

This doctrine means that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared void and not the entire statute.  

In A.K. Gopalan v. State of Madras[3] the Supreme Court the Supreme Court while declaring Section 14 of the Preventive Detention Act, 1950 observed that the impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the subject of the legislation. Therefore the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act. In State of Bombay v. Balsara[4], a case under Bombay Prohibition Act, 1949, it was observed that the provisions which have been declared as void do not affect the entire statute therefore there is no necessity for declaring the statute as invalid.

The primary test is whether what remains are so inextricably mixed with the part declared invalid that what remains cannot survive independently. The Supreme Court observed in Romesh Thappar v. State of Madras[5] that where a law purports to authorize the imposition of restrictions on a fundamental right in language wide enough to cover restrictions, both within and without the limits provided by the Constitution and where it is not possible to separate the two, the whole law is to be struck down.

Doctrine of Eclipse

The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights is not nullity or void ab initio but becomes only unenforceable, i.e. remains in moribund condition.

Supreme Court formulated the doctrine of eclipse in Bhikaji v. State of M.P[6]. In that case provision of C.P. and Berar Motor Vehicle (Amendment) Act, 1947 authorised the State Government to make transport business I the province to the exclusion of motor transport operators. This provision though valid when was enacted, became void on the coming of the force of Constitution in 1950 as they violated Article 19(1) (g) of the Constitution. However, in 1951, Clause (6) of Article 19 was amended so as to authorize the Government to monopolise any business.

In Deep Chand v. State of U.P[7] the Supreme Court held that a post-constitutional law made under Article 13(2) which contravenes a fundamental right is nullity from its inception and is till-born law. It is void ab initio. The doctrine of eclipse does not apply to post constitutional law and therefore subsequent amendment cannot revive it. But in State of Gujarath v. Ambica Mills[8], the Supreme Court modified its view and held that a post constitutional law which is inconsistent with fundamental rights is not nullity or non-existent in all cases and for all purposes.

In Dulare Lodh v. IIIrd Additional District Judge, Kanpur[9], the Supreme Court applied the doctrine of eclipse to post-constitutional laws even against the citizens.

Doctrine of Waiver

The doctrine of waiver has no application to the provisions of law enshrined in Part III of the Constitution. “It is not open to an accused person to waive or give up his Constitutional rights and get convicted” was held in the case of Behram v. State of Bombay[10].

The question of waiver arose in the case of Basheshar Nath v. Income Tax Commissioner[11], where the majority held that the doctrine of waiver as formulated by some American Judges interpreting the American Constitution cannot be applied in interpreting the Indian Constitution. It is not open to a citizen to waive any of the fundamental rights conferred by Part III of the Constitution.

Doctrine of lifting the veil

The Court in State of Tamil Nadu v. Shyam Sundar[12] held that to test the constitutional validity of the Act, on the alleged provision of fundamental rights, it is necessary to ascertain its true nature and character impact of the Act for which the Court may take into consideration all factors such as history of legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislation resolved to cure and the true reason for the remedy.

Is Constitutional amendment a ‘law’ made under Article 13 (2)?

The question first came up in the case of Shankari Prasad v. Union of India[13] where it was held that the word ‘law’ in Clause (2) did not include law made by the Parliament under Article 368.

But in Golak Nath v. State of Punjab[14] the Supreme Court overruled its earlier decision and held that the word ‘law’ in Article 13 (2) included every branch of law, statutory, constitutional, etc and hence if an amendment to the constitution took away or abridged fundamental rights of citizens, the amendment would be declared void.

In order to remove the difficulty posed in Golak Nath case 24th Amendment was made which added a new clause (4) to Article 13 which makes it clear that Constitutional amendments passed under Article 368 shall not be considered as law within the meaning of Article 13 and therefore cannot be challenged as infringing the provisions of Part III of the Constitution. The Court overruled the Golak Nath case and upheld the validity of the said amendment in the landmark judgement of Keshavanand Bharti v. State of Kerala[15].

[1] AIR 2014 SC 2175

[2] AIR 1951 SC 128

[3] AIR 1950 SC 27

[4] AIR 1951 SC 318

[5] AIR 1950 SC 124

[6] AIR 1955 SC 781

[7] AIR 1959 SC 648

[8] AIR 1974 SC 1300

[9] AIR 1984 SC 1260

[10] AIR 1955 SC 146

[11] AIR 1959 SC149

[12] AIR 2011 SC 3470

[13] AIR 1951 SC 458

[14] AIR 1967 SC 1643

[15] AIR 1973 SC 1461

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