KSLU Corner

Article 13: pre- and post-constitutional laws, severability, eclipse and waiver

Constitutional Law I · Unit II, topic 1 · 3-Year LL.B.

What 'law' means in Article 13, how it treats laws made before and after the Constitution, and the three doctrines the courts built to work it: severability, eclipse and waiver.

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
The provision that makes Part III work. Fundamental rights would be moral declarations without Article 13, which supplies the legal consequence: an inconsistent law is void. Everything in this topic follows from working out exactly how void, and from when.

1. The text, clause by clause

2. The crucial difference between clauses (1) and (2)

Both use the word “void”, but they do not mean the same thing, and this is the point examiners test.

A pre-constitutional law was valid when made. Article 13(1) does not wipe it out from inception; it renders the law inoperative from the date the Constitution commenced, and only to the extent of the inconsistency. Rights and liabilities that accrued under it before 26 January 1950 survive.

That was decided in Keshavan Madhava Menon v. State of Bombay, 1951 INSC 3, AIR 1951 SC 128. A prosecution under the Indian Press (Emergency Powers) Act had begun before the Constitution came into force. The Court held Article 13(1) has no retrospective operation: the law was void only from the date of commencement, and the pending prosecution was unaffected.

A post-constitutional law made in breach of Article 13(2) is in a worse position. It is a stillborn law, void from its inception, because the State had no competence to make it at all.

3. Doctrine of severability

Both clauses say the law is void “to the extent of the inconsistency”. It follows that where the offending part can be separated from the rest, only the offending part falls, and the remainder survives. That is the doctrine of severability, sometimes called separability.

The test is one of intention and workability. If the valid and invalid portions are so inextricably mixed that they cannot be separated, the whole falls. If what survives is not what the legislature would have enacted on its own, or cannot stand independently, the whole falls. If the valid part can stand alone and is complete in itself, it is saved.

State of West Bengal v. Anwar Ali Sarkar, 1952 INSC 1, AIR 1952 SC 75, is the standard illustration. Section 5(1) of the West Bengal Special Courts Act, permitting the State to direct that cases be tried by special courts with a procedure that departed from the ordinary law, was struck down under Article 14, but the offending provision was severed rather than the whole Act destroyed.

4. Doctrine of eclipse

This applies to pre-constitutional laws. Such a law does not die on 26 January 1950; it is overshadowed by the fundamental right, remaining dormant and unenforceable against citizens, but still in existence. If the shadow is removed — by a constitutional amendment altering the right — the law revives and becomes operative again, without needing to be re-enacted.

The doctrine was laid down in Bhikaji Narain Dhakras v. State of Madhya Pradesh, 1955 INSC 49, AIR 1955 SC 781. A provision of the C.P. and Berar Motor Vehicles (Amendment) Act, 1947, which allowed the State to create a monopoly in the motor transport business, became inconsistent with Article 19(1)(g) in 1950. The First Amendment in 1951 then widened the permissible restrictions under Article 19(6) to include State monopolies. The Court held the law had been merely eclipsed, not obliterated, and revived once the amendment removed the inconsistency.

The important qualification: eclipse applies to pre-constitutional laws, which had a valid existence to begin with. A post-constitutional law that violates Part III is void from birth, and there is nothing to eclipse or revive — it must be re-enacted.

5. Doctrine of waiver

Can a person consent to the violation of their own fundamental right? No.

In Basheshar Nath v. Commissioner of Income Tax, 1958 INSC 102, AIR 1959 SC 149, the assessee had settled under section 8-A of the Taxation on Income (Investigation Commission) Act, a provision later held to violate Article 14, and it was argued that by settling he had waived the right. The Court rejected the argument. Fundamental rights are not conferred for the individual's private benefit alone; they embody a matter of public policy, and the constitutional prohibition in Article 13(2) is addressed to the State, which cannot acquire competence by consent.

The contrast with American law is worth a line: in the United States a constitutional right may in some circumstances be waived. In India the doctrine of waiver has no application to fundamental rights.

6. Article 13(4) and amendments

Is a constitutional amendment “law” for the purposes of Article 13(2)? In I.C. Golak Nath v. State of Punjab, 1967 INSC 45, AIR 1967 SC 1643, the Court held that it was, so an amendment could not abridge fundamental rights. Parliament responded with the Twenty-fourth Amendment, inserting Article 13(4) to say the Article does not apply to amendments. In Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, the Court upheld the Twenty-fourth Amendment and overruled Golak Nath on this point — but supplied the basic structure limitation instead. So an amendment escapes Article 13, yet remains subject to the basic structure.

How this is examined

Short notes are common on each doctrine separately: doctrine of eclipse, doctrine of severability, doctrine of waiver. Essays usually ask you to explain Article 13 with the doctrines developed under it.

Two errors to avoid. First, do not apply eclipse to post-constitutional laws — the whole point of the doctrine is the difference between clauses (1) and (2). Second, when asked about waiver, state the conclusion firmly: fundamental rights cannot be waived, on the authority of Basheshar Nath, and give the reason, which is that Article 13(2) is a prohibition on the State rather than a personal privilege of the citizen.

Now go and read the questions themselves: Constitutional Law I past question papers.