Article 13 of Indian Constitution: Doctrine of Eclipse and Severability

Introduction to Article 13 of Constitution of India

Is article 13 of the constitution of India is a fundamental right? Yes, it's a part of the fundamental right.  When we were making our constitution, we already had a lot of nations as examples, which adopted democratic and humanitarian concepts. So our founding fathers endeavored to formulate something which reflects multiple things like rights of the minority, the principle of UDHR, our struggle for independence, and whatnot. Therefore, while making the constitution, part III was discussed for 38 days. Part III exists with the same objective that our rights to freedoms should be protected against the state’s arbitrary invasion. So this means that the state’s actions should be judged on the basis of their impact on the rights and the freedoms of the people.
Basically, Article 13 deals with the principles relating to Fundamental Rights. The first thing that you should have clarity about it is that. Fundamental Rights have existed since the time our present constitution has existed i.e. 26th January 1950. Fundamental rights became operative from and on this date only. Article 13 (1) deals with Pre-constitutional laws. There were many different laws that were present before the constitution came into being, and remained in effect even after that. Article 13 provides that those laws (existing prior to the constitution) which are consistent with fundamental rights will remain valid. For example, there was an education Act of 1930 which had many clauses which dealt with subjects like the appointment of chairman, what will be the amount of fund that will be allocated, what will be the age group of the children. Among other things, there was this one clause that said kids from a certain caste shall not be admitted to the school. Now since 1950, this clause stands in contravention of the fundamental rights. While applying clause 1 in the same example, since this clause is against fundamental rights, it would become void.
What is Article 13- Laws inconsistent with or in derogation of the fundamental rights

(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, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368
This concept is related to the two doctrines, which are related to Article 13 i.e. Doctrine of Severability and the Doctrine of Eclipse. Let's see these doctrines.

Doctrine of Severability or Separability, Judicial Review Article 13

Doctrine is the doctrine of Severability or separability, which means to separate. In simple language, we have to use a filter for all pre-constitutional laws, i.e. if it respects fundamental rights or not. All the laws which pass successfully through this filter are valid. The laws which cannot pass have to be separated. This is the doctrine of severability. A very important case for the doctrine of severability is A.K.Gopalan v. State of Madras. In this case, section 14 of the Preventive Detention Act was challenged. According to section 14, if any person is detained under this act, he cannot disclose grounds of detention in court. So section 14 was against the fundamental rights. If you apply the doctrine of severability here and filter out this Act, only section 14 of the act was not respecting fundamental rights. According to the doctrine of separation, if we filter out the Preventive Detention Act only section 14 is inconsistent with a fundamental right. So we will minus only this provision from the act, and the remaining act shall remain valid. Simply doctrine of separation means to filter out, to check all the acts. All those laws which respect fundamental rights shall be valid. All those which are inconsistent with fundamental rights shall become invalid.

Doctrine of Eclipse In Indian Constitution, Judicial Review Article 13

Doctrine of Eclipse meaning, is to hide. Let's understand it through a case. Eclipse means to shadow something or to hide. Like there are 3 kinds of volcanos, sleeping, active and dead, section 14 of the Preventive Detention Act was not a dead section. But just a sleeping section. Let's check this case to further understand how the doctrine of eclipse functions. Doctrine of eclipse cases- In the case of Bhikhaji v. State of M.P., Berar MV Act was challenged. There were certain sections in this Act that empowered the state government to transfer the ownership of all of the motor business to themselves. After 1950, all those provisions became violate Article 19. So what would happen now is, we will filter out the whole Act first, and remove all those sections which are inconsistent with fundamental rights. Then we will apply doctrine and eclipse, we will say that fundamental rights will prevail over these sections. Meaning that all these sections become inoperative. What happened next is that Article 19 was amended and the government was authorized to monopolise certain businesses. So these sections which were inoperative because of section 19, will now become active.

So basically, doctrine of severability says that all the pre-existing laws shall be filtered out with respect to fundamental rights. All those laws which respect fundamental rights shall become valid.

Now come to the next step i.e. doctrine of eclipse, now all those laws which cannot pass this filter, which was separated which are invalid or inconsistent with fundamental rights, shall be shadowed by fundamental rights. Fundamental rights would eclipse them, hide them. Meaning that they shall not cease to exist, but only become inoperative.

If any amendment takes place in the future and all those fundamental rights become consistent with fundamental rights, they will again become active. So Article 13 (1) deals with pre-constitutional law meaning the laws which existed before the constitution of India came into existence. If such laws are against fundamental rights, they shall become invalid. Now the extent to which they shall remain invalid shall be determined by application of two doctrines viz. Doctrine of Severability and Doctrine of Eclipse.

Article 13 (2) talks about post-constitutional laws, meaning the laws that came into existence after Indian constitution. The state is prohibited, the state cannot make such laws that are against fundamental rights. If such inconsistent laws are made, they shall be void. To what extent they would be void, shall be defined by the application of these doctrines.

Case Law- State of Gujarat v. Ambica Mills

There were a lot of twists in Article 13 (2) which were settled in State of Gujarat v. Ambica Mills. In this case, certain labor welfare fund was challenged. It contained certain questions which were against fundamental rights. Now it was clear that after the constitution came into effect, the state did not have the power to pass a law which is against fundamental rights. The question, in this case, was that fundamental rights are available to citizens. Then, what about non-citizens and companies? In this case, the respondent was a company, who was not granted fundamental rights. In respect of that, would this act be valid or not? The supreme court said because the fundamental rights are not granted to companies, these sections will still, be operative for non-citizens.


So basically 1st, state is prohibited from making any laws which are against fundamental rights. 2nd, even if such a law is made, it shall not be applicable to the citizens. But all those categories of parties which have not been granted fundamental rights like companies, non-citizens, for them, that piece of legislation is still operative. That is not void, that is valid.

The Editor

भारतीय संविधान आणि भारतीय कायद्यांबाबत, तसेच कायदीय चालू घडामोडी, न्यायालयांचे निकाल, निर्णय, आदेशा याबाबत मराठी आणि इंग्रजी अशा दोन्ही भाषेतून वाचकांना ज्ञान मिळावे यासाठी हा ब्लॉग सुरू करण्यात आला आहे. कायद्याचे अभ्यासक, वकील, विद्यार्थी हे सुद्धा या ब्लॉगवर आपले लेख प्रसिद्ध करू शकतात. संपर्क:- अ‍ॅड. रावण धाबे,

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