The document discusses constitutional law and Article 13 of the Indian Constitution regarding the enforcement of laws relating to fundamental rights. It explains that pre-constitutional laws were initially valid but could become void if violating constitutional provisions. It describes the doctrine of judicial review under Article 13 and discusses key concepts like the doctrine of severability, doctrine of eclipse, doctrine of parens patriae, and doctrine of waiver. It also summarizes several important Supreme Court cases related to Article 13 and the constitutional amendment power.

1. Constitutional LAW
Article 13 of Constitution of India

2. Enforcement of laws with context to F.R.
Pre-Constitutional Law
• Before the commencement of the
Constitution.
• Initially valid but subsequently void if
these are violating provisions of the
constitution.
Post-Constitutional Law
• Parliament shall not make any law in
violation of fundamental right. (General
Rule).
• If any such enacted by parliament which
against the provisions of the constitution
that act became void ab-initio.
State can’t make any law which abridge the fundamental right but can
make laws acc. Doctrine of Harmonious Construction.

3. Article 13
• Article 13 declares that all laws that are inconsistent with any of the fundamental
rights shall be void. In other words, it expressively provides for the doctrine of
‘Judicial Review’.
This power has been conferred on the Supreme Court (Art. 32) and the high courts (Art.
226) that can declare a law unconstitutional and invalid on the ground of contravention of
any of Fundamental Rights.
• Law Includes:
– Laws enacted by Parliament and state legislature.
– Any ordinance
– Order
– Bye-rule
– Rule & Regulation
– Notification
– Customs and usages.
But not including
personal laws.

4. Doctrine of Severability
• Meaning
By the term severability, we mean ‘To Separate’. Under this doctrine, we just separate
the invalid sections (those violating fundamental rights) from that act. Rather than
repealing the whole act, we can repeal that specific section from the act.
Case: RMDC vs UOI (AIR 1957 SC 628)
 Intention of the legislature will determine whether the valid part of a statute is
severable from the invalid parts.
 If the invalid part is not separated from the valid portion of the act that’s mean the
whole Act is Invalid.
 If they can separate then valid become valid act.
 Courts would be reluctant to declare a law invalid or ultra vires on of
unconstitutionality.
 Interpretation done by court would be in favour of constitutionality.

5. Doctrine of Severability
• Origin: In UK case: Nordfelt vs Maxim Nordfelt Guns and
Ammunition Company Ltd.(1894)
• Purpose of art. 13 of the Indian Constitution, it means “to
separate the valid portion of the law from the invalid
provisions.”
• The main object of the doctrine is retain the act or legislation
in force by discarding/deleting the void provisions.
• A K Gopalan vs State of Madras
• PD Act section 14 was against the Fundamental Rights. Not
the whole law but only one that section removed by the
judicial review.

6. Doctrine of Eclipse
• To hide wholly or in part or throwing into the shade.
• Aims to validate a statute, which remains dormant as it
over-shadowed by the rights.
• Based on the principle that a law, which violates
fundamental rights is not nullity or void ab-intio but
becomes only unenforceable.
• Such law shall be wiped out totally from the statute book.

7. Doctrine of Eclipse
• Bhikaji Dhakrajan vs State of MP (AIR 1955 SC 781)
• The doctrine of Eclipse envisages that a pre-constitutional law inconsistent
with fundamental rights was not bit out all together of the statute book after
the commencement of the constitution as it continued to exist in respect of
rights & liabilities occurred before the date of constitution. The law therefore
be regarded Eclipse for the time being by the relevant F.R. it was a govt. in
moribund condition for all purpose. It the relevant F.R. amended then the
effect would be to removed the shadow and to make the impulse act free from
all blemish or infirmity. The law would sees to be unconstitutional & become
reviewed.
• Deep Chand vs State of U.P (AIR 1959 SC 648)
• In case the contravene a fundamental right limited to the citizen only, it will
operate with respect to non-citizens but it will not be revived quo-citizen
unless it revived by constitutional amendment.
• Eclipse-only pre-constitutional law.

8. Doctrine of Eclipse
• State of Gujrat vs Ambika Mills (1989)
• It was stated that doctrine of eclipse applies to pre and
post constitutional laws both. But for non citizens or
company, this doctrine is not applicable and even the law
which would have been impugned in case of citizens,
would be applicable on them as valid.

9. Doctrine of Parens Patriae
• The monarch, or any other authority, regarded as legal
protector of citizens unable to protect themselves.
• Charan Lal Sahu vs UOI
• Heller vs DOE
• JUSTICE KENNEDY observed that the state has a
legitimate interest under its parens patriae powers in
providing care to its citizens who are unable to care of
themselves.

10. Doctrine of Waiver
• In BASHESHAR NATH vs INCOME TAX COMMISSIONER
(1959), the petitioner entered into a settlement with the Income tax
commissioner under the tax failure. Later, he denied payment
relying on one judgement (MCT Muthiah & ors. vs CIT 1955)
where that section was declared unconstitutional. One issue was
raised that since he agreed to pay the amount, he has waived his
right and so he will have to reimburse the settlement amount. The
Court held that Fundamental Rights cannot be waived.
• Similar ruling was held in OLGA TELLIS Case.

11. Cases
• SANKARI PRASAD VS UOI (AIR 1951 SC 458)
• It was held that Parliament had two powers- legislative power to make laws
and constituent power to amend constitution. And law made under the
constituent power is not law under Article 13. And since Judicial review
applies on laws under Article 13, therefore property rights can be vitiated by
the Parliament without intervention of the court.
• SAJJAN SINGH VS UOI (1965 SCR (1) 933)
• 17th CAA was challenged.
• Amendment includes amendment of any part of the constitution.

12. Cases
GOLAKHNATH VS STATE OF
PUNJAB
(1967 SCR (2) 762)
 17th CAA was challenged.
 Earlier two judgements were reversed by 11
judge bench.
 No such division as to constituent power and
legislative power. And so, constituent power
under Article 368 is also law under Article 13
and thereby amenable to Judicial review by
the Supreme Court
KESHAVNANDA BHARTI VS
STATE OF KERALA
(AIR 1973 SC 1461)
• Article 368 is both power and procedure.
• BASIC STRUCTURE Theory described by the
SC
• upheld 24th amendment.
• Stated that Constituent power is superior to
ordinary law making power as it requires special
majority.
• Harmonious Construction of Article 13 and 368.

13. Case Laws:
MINERVA MILLS VS UOI
AIR 1980 SC 1789
• Article 368 (4) and (5) was also
declared unconstitutional.
• schedule IX was still alive
WAMAN RAO VS UOI
(1981) 2 SCC 362
• The Waman Rao case held that
amendments made to the 9th
Schedule until the Kesavananda
judgement are valid, and those
passed after that date can be subject
to scrutiny.
I R COELHO VS STATE OF
TAMILNADU
AIR 2007 SC 861
• If any laws in the Ninth Schedule
were inconsistent with Part III, they
are liable to be struck down by the
Court.

14. Presented by:
Mr. Rahul Yadav
Assistant Professor (Cont.)
Faculty of Law
M. D. University, Rohtak.
Contact: rahul.gf.law@mdurohtak.ac.in