consti

2. 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. (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Constitution and not previously repealed.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)

4.  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)

5. 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.

6. 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)

8. 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)

9. 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

10. 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.

11. 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.

12. 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.

13. Doctrine of Eclipse and Article 368
• In I. C. Golaknath v. State
of Punjab(1967)
• Kesavananda Bharti v. State
of Kerela (1973)

14.  (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 1st
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.

15.  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.

16. 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

20. 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.

22. 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

23. 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.

24. 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.

25.  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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

32. 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

33. 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.

34. 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.

35.  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.

36. 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.

37. ►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

38. 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.

39. 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.

40. 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.

41. • 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.

42. • 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 their actions.

43. 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.

44. 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.