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fundamental rights : preliminary concepts

CUSTOM: Supreme Court of India

Gazula Dasaratha Rama Rao vs The State Of Andhra Pradesh & ... on 6 December, 1960

We think that it would be wrong in principle to cut down the amplitude of a fundamental right by reference to provisions which have an altogether different scope and purpose. Article 13 of the Constitution lays down inter alia that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with fundamental rights, shall to the extent of the inconsistency be void. In that Article 'law' includes custom or usage having the force of law. Therefore, even if there was a custom which has been recognised by law with regard to a hereditary village office, that custom must yield to a fundamental right.



PERSONAL LAW: Supreme Court of India

Ahmedabad Women Action Group ... vs Union Of India on 24 February, 1997

All these Writ Petitions are filed as Public Interest Litigation. In W.P. (C) No. 494/96. the reliefs prayed foe are as follows :


(a) to declare muslim Personal Law which allows ploygamy as void as offending Articles 14 and 15 of the Constitution;

(b) to declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts. as void, offending Articles

13. 14 and 15 of the Constitution;

(c) to declare that the mere fact that a Muslim husband takes more than one wife is an act of cruelty within the meaning of Clause VIII

(f) of Section 2 of Dissolution of Muslim Marriages Act. 1939.

(d) to declare that muslim Women (Protection of Rights on Divorce Act. 1986 is void as infringing Articles 14 and 15.

(e) to further declare that the provisions of Sunni and Shia laws of inheritence which discriminate against females in their share as compared to the share of males of the same status. void as discriminating against females only on the ground of sex.


In State of Bombay vs. Narasu Appa Mali (AIR 1952 Bombay 84), Chagla, C.J., while considering the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, observed as follows :-


"A question has been raised as to whether it is for the Legislature to decide what constitutes social reform. It must not be forgotten that in democracy the Legislature is constituted by the chosen representatives of the people. They are responsible for the welfare of the State and it is for them to lay down the policy that the State should pursue Therefore. It is for them to determine what legislation to put up on the statute bock in order to advance the welfare of the State.

It was further observed that :- "There can be no doubt that the Muslims have been excluded from the operation of the Act in question. Even Section 494, Penal Code, Which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims because polygamy is recognised as a valid institution when a Muslim male marries more than one wife. The question that we have to consider is whether there is any reasonable basis for creating the Muslims as a separate class to which the laws prohibiting polygamy should not apply. Now. It is an historic fact that both the Muslims and the Hindus in this country have their respective religious texts and which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds. Article 44 itself recognises separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy the privilege of a common uniform Civil Code applicable to all its citizens irrespective of race or religion. Therefore, what the Legislature has attempted to do by the Hindu Bigamous Marriages Act is to introduce social reform lin respect of a particular community having its own personal law. The institution of marriage is differently looked upon by the Hindus and the Muslims. Whereas to the former, it is a sacrament, to the latter it is a matter of contract. That is also the reason why the question of the dissolution of marriage is differently tackled by the two religions. While the Muslim law admits of easy divorce, Hindu marriage is considered indissoluble and it is only recently that the State passed legislation permitting divorce among Hindus. The State was also entitled to consider the educational permitting divorce among Hindus. The State was also entitled to consider the educational development of the two communities. One community might be prepared to accept and work social reform; another may not yet be prepared for it: and Art. 14 does not lay down that any legislation that the State may be community wise. From these considerations it follows that if there is a discirmination against the Hindu in the applicability of the Hindus Bigamous Marriages Act. that discrimination is not based only upon ground of religion. Equally so if the law with regard to bigamous marriages is not uniform, the difference and distinction is not arbitrary or capricious, but is based upon reasonable grounds.

Gajendragadkar J., in his concurrent but separate opinion expressed the same view by observing as follows:-


"The next question is whether this Act discriminates against the Hindus in reference to the Christian and the Parsi citizens of this State, in so the specially severe provisions as to punishment and procedure. It is true that whereas under the general criminal law the offence of bigamy is cognizable only on the complaint of the wife, the impugned Act makes it cognizable so that the complaint of the wife, is unnecessary to start the proceedings against the offending husband. The offence of bigamy is compoundable under the general criminal law: but not under the impugned Act ; and the word "abettor under the impugned Act is also wider than this question, however, it must be remembered that the evil of bigamy prevailing amongst the Hindus could not be effectively put down unless the offence was made cognizable and unless amongst the abettors were included ever the priests who officiate at Hindu Marriages. As I have already mentioned, Hindu marriage is a love and devotion of the Hindu wife for her husband is well known. Legislature may well have thought that it would be futile to make the offence of Hindu bigamy punishable at the instance of the wife because Hindu wives may not come forward with any complaint at all. Among the Christians and the Parsis, monogamy has been practised for several years and marriage amongst them is a matter of contract. Amongst them divorce is permissible, whereas amongst the Hindus it was not permissible for so many years. If the Legislature acting on these considerations wanted to provide for a special procedure in dealing with bigamous marriages amongst the Hindus it cannot be said that the Legislature was discriminating against the Hindus only on the ground of religion. It was for the Legislature to take into account the social customs and beliefs of the Hindus and other relevant considerations before deciding whether it was necessary to provide for special provisions in dealing with bigamous marriages amongst them. That clearly is the province of the Legislature and with the propriety of their views or their wisdom Courts are not concerned. I, therefore, hold that there is no substance in the argument that the penal provisions of the impugned Act constitute discrimination against the Hindus only on the ground of religion.

There is one more point with which I would like to deal. It has been argued before us that the impugned Act should have been made State of Bombay. It is said that if the impugned Act constitutes a measure of social reform. There is no reason why the State Legislature should not have given the Mahomedan community the benefit of this social reform. The Union of India is a secular State and the State Legislature was wrong in making a distinction between its citizens on the ground of religious differences and in applying the provisions of the impugned Act only to Hindus. In part this argument is political and as such we are not concerned with it. But part of the argument is based upon the provisions of Article 14 of the Constitution of India and it is necessary to deal with this aspect of the argument. The learned judge further observed as follows :- "But it is argued that even as to this social reform, the State Legislature should have made it all pervasive and should not have left the Mahomedans outside its ambit. That. as I have already said, is partly a political, and partly a legal argument. Whether it was expedient to make this Act applicable to the Mahomedans as well as to the Hindus would be a matter for the Legislature to consider. It is now well settled that the equality before the law which is guaranteed by Article 14 is not offended by the impugned Act if the Classification which the Act makes is based on reasonable and rational considerations. It is not obligatory in taking gradual steps for social welfare and reform does not introduce distinctions or classifications which are unreasonable, irrational or oppressive, it cannot be said that the equality before law is offended. The State Legislature may have thought that the Hindu community was more ripe for the reform in question. Social reformers amongst the Hindus have years past and the social conscience of the Hindus, according to the Legislature, may have been mire in tune with the spirit of the proposed reform. Besides, amongst the Mahomedans divorce has always been permissible and marriage amongst them is a matter of contract. If the State Legislature acting on such considerations decided to enforce this reform in the first instance amongst the Hindus, it would be impossible in my opinion to hold that in confining the impugned Act to Hindus as defined by the Act, it has violated the equality before law as guaranteed by Article 14. In my opinion, therefore, the argument that Article 14 is violated by the impugned Act must fail."

Gajendragadkar j. also expressed his opinion on the question whether Part III of the Constitution applies to personal laws. The learned Judge observed as follows :-


"The Constitution of India itself recognises the existence of these personal laws in terms when it deals with the topic falling under personal law in item 5 in the Concurrent List-List III. This item deals with the topics of marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. Thus it is competent either to the State or the Union Legislature to legislate on topics falling within the purview of the personal law is not used in Art. 13, because, in my opinion, the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the constitution and so they did not intend to include these personal laws within the definition of the expression laws in force. Therefore, I agree with the learned Chief Justice in holding that the personal laws do not fail within Article 13(i) at all."

POSITION IN 2017 : Supreme Court of India

Shayara Bano vs Union Of India And Ors. Ministry Of ... on 22 August, 2017

Recently, in Shayara Bano, a Constitution Bench considered whether talaq – ul – biddat or ‘triple talaq’, which authorised a Muslim man to divorce his wife by pronouncing the word “talaq” thrice, was legally invalid. In a 3-2 verdict, the majority ruled that triple talaq is not legally valid. Justice Rohinton Fali Nariman (writing for himself and Justice Lalit) held that the Muslim Personal Law (Shariat) Application Act, 1937 codified the practice of Triple Talaq. The learned Judge proceeded to examine whether this violated the Constitution:


“47.It is, therefore, clear that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India…143

48.As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.”144 143 Ibid, at page 65 144 Ibid, at page 65 PART K Having concluded that the 1937 Act codified the practice of triple talaq and that the legislation would consequently fall within the ambit of ‘laws in force’ in Article 13(1) of the Constitution, it was held that it was “unnecessary…to decide whether the judgment in Narasu Appa (supra) is good law.” Justice Nariman, however, doubted the correctness of Narasu in the following observation:

“However, in a suitable case, it may be necessary to have a re-look at this judgment in that the definition of “law and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law.” Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.

However, counsel for the Muslim Personal Board relied heavily on this Court’s decision in Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573. This judgment refers to several earlier decisions to hold that the declarations sought for did not deserve disposal on merits, which involve issues of State policy that courts ordinarily do not have concern with. This Court, therefore, declined to entertain writ petitions that asked for very sweeping reliefs which, interestingly enough, included a declaration of voidness as to “unilateral talaq”. This Court referred in detail to the judgment of the Bombay High Court in Narasu Appa (supra) in declining to review Muslim personal law. However, when it came to the challenge of a statutory enactment, Muslim Women (Protection of Rights on Divorce) Act, 1986, this Court did not wish to multiply proceedings in that behalf, as a challenge was pending before a Constitution Bench regarding the same.


30. Hard as we tried, it is difficult to discover any ratio in this judgment, as one part of the judgment contradicts another part. If one particular statutory enactment is already under challenge, there is no reason why other similar enactments which were also challenged should not have been disposed of by this Court. Quite apart from the above, it is a little difficult to appreciate such declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution Bench decisions cannot possibly be said to be good law. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14.


The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.

Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee’s book (supra), the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God. Indeed, in Shamim Ara v.


State of U.P., (2002) 7 SCC 518, this Court after referring to a number of authorities including certain recent High Court judgments held as under:


“13…The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected (para 13). In Rukia Khatun case [(1981) 1 Gau LR 375] the Division Bench stated that the correct law of talaq, as ordained by the Holy Quran, is: (i) that “talaq” must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, “talaq” may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law.

14. We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts.” (at page 526)


57. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.



(Even in Sabrimala case the question of correctness of Narasu Appa case was ignored by Justice Nariman however was discussed by Justice Chandrachud under the heading "ghost of Narasu".)




WAIVER OF FUNDAMENTAL RIGHTS AND EFFECT OF UNCONSITUTIONALITY :

In Behram Khurshed Pesikaka v. State of Bombay

The effect of the declaration of a statue as unconstitutional has been thus set out by Cooley on Constitutional Limitations, Vol. I, page 382 :-


"Where a Statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be unconstitutional and which consequently has to be regarded as having never at any time been possessed of any legal force..........."


13. See also the dictum of Field J. in Norton v. Shelby County (118 U.S. 425 : 30 L.Ed. 178) :


"An unconstitutional Act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."


14. To the same effect are the passages from Rottschaefer on Constitutional Law, at page 34 :


"The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional result. That theory implies that the legislative provision never had legal force as applied to cases within that class."


15. Willoughby on Constitution of the United States, Second Edition, Vol. I, page 10 :-


"The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognise it, and determines the rights of the parties just as such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does repeal..... the statute. The parties to that suit are concluded by the judgment, but no one else is bound. A new litigant may bring a new suit, based on the very same statute, and the former decision can be relied on only as a precedent,........."


"It simply refuses to recognise it and determines the rights of the parties just as if such state had no application..........."


16. And Willis on Constitutional Law, at page 89 :-


"A judicial declaration of the unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so fact as the determination of the rights of private parties is concerned. The courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed.......".


There was a general discussion whether a fundamental right could be waived. At page 638 Venkatarama Aiyar, J., observed:-


" The question is, what is the legal effect of a statute being declared unconstitutional. The answer to it depends on two considerations firstly does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is- within its competence; and secondly, if it is merely a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity. That would also be the position when a limitation is imposed on the legislative power in the interests of the public, as, for instance, the provisions in Chapter XIII of the Constitution relating to inter-State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled. (Vide Cooley on Constitutional Limitations, Volume 1, pages 368 to 371 ; Willis on Constitutional Law at pages 524, 531, 542 and 558 ; Rottschaefer on Constitutional Law at pages 28 and 29-30)."


After referring to three decisions of the American Supreme Court which are also now relied on by the learned Attorney General, the learned Judge concluded as follows:- " The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals. The rights guaranteed under Art. 19 (1) (f) are enacted for the benefit of owners of properties and when a law is found to infringe that provision, it is open to any person whose rights have been infringed to waive it and when there is waiver there is no legal impediment to the enforcement of the law. It would be otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable and can take effect when waived it cannot be treated as non and as effaced out of the statute book. It is scarcely necessary to add that the question of waiver is relevant to the present controversy not as bearing on any issue of fact arising for determination in this case but as showing the nature of the right declared under Art. 19 (1) (f) and the effect in law of a statute contravening it." When the case came up before the court on review Mahajan, C. J., with the concurrence of Mukherjea, Vivian Bose, and Ghulam Hassan, JJ., said at page 653:-


" In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.

Reference to some of the Articles, inter alia, Arts. 15 (1), 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State " You can discriminate ", or get convicted by waiving the protection given under Arts. 20 and 21.




Supreme Court of India

Basheshar Nath vs The Commissioner Of ... on 19 November, 1958

Equivalent citations: 1959 AIR 149, 1959 SCR Supl. (1) 528

Author: S R Das

Bench: Das, Sudhi Ranjan (Cj), Bhagwati, Natwarlal H., Das, S.K., Kapur, J.L., Subbarao, K.



The American Law on the subject may be summarized thus: The doctrine of waiver can be invoked when the Constitutional or Statutory guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right. But if the privilege conferred or the right created by the statute is solely for the benefit of the individual, he can waive it. But even in those cases the Courts invariably administered a caution that having regard to the nature of the right some precau- tionary and stringent conditions should be applied before the doctrine is invoked or applied.


The scope of the doctrine of waiver was considered by this Court in Behram Khurshed's case(1). There a person was prosecuted for an offence under s. 66(b) of the Bombay Prohibition Act and he was sentenced to one month's rigorous imprisonment. One of the questions raised there was whether s. 13(b) of the Bombay Prohibition Act, having been declared to be void under Art. 13(1) of the Constitution in so far as it affected the consumption or use of liquid medicinal or toilet preparation containing alcohol, the prosecution was maintainable for infringement of that section. The Court held that in India once the law has been struck down as unconstitutional by the Supreme Court, no notice can be taken of it by any Court, because, after it is declared as unconstitutional, it is no longer law and is null and void. Even so, it was contended that the accused had waived his fundamental right and therefore he could not sustain his defence. Mahajan, C. J., delivering the judgment of the majority, repelled this contention with the following observations at page 653:-


" The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political ; liberty ,of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy. Reference to some of the articles, inter alia, Articles 15(1) 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'You can discriminate', or get convicted by waiving the protection given under Articles 20 and 21."


On the question of waiver, Venkatarama Aiyar, J., in his judgment before review, considered the American decisions and was inclined to take the view that under our Constitution when a law contravenes the provisions intended for the benefit of the individual, it can be waived. But the learned Judge made it clear in his judgment that the question of waiver had no bearing to any issue of fact arising for determination in that case but only for showing the nature of the right declared under Art. 19(1)(f) and the effect in law of a statute contravening it. Das, J., as he then was, in his dissenting judgment, did not state his view on this question but expressly reserved it in the following words:-


" In coming to the conclusion that I have, I have in a large measure found myself in agreement with the views of Venkatarama Aiyar, J., on that part of the case. I, however, desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment, particularly those relating to waiver of 'unconstitutionality, the fundamental rights being a mere check on the legislative power or the effect of the declaration under Art. 13(1) being relatively void'. On those topics prefer to express no opinion on this occasion." I respectfully agree with the observations of Mahajan, C. J. For the aforesaid reasons, hold that the doctrine of waiver has no application in the case of fundamental rights under our Constitution.



Supreme Court of India

Nar Singh Pal vs Union Of India & Ors on 28 March, 2000

. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his Constitutional rights. Such an order cannot be sustained.


Supreme Court of India

Olga Tellis & Ors vs Bombay Municipal Corporation & ... on 10 July, 1985

The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-today transactions. In Basheshar Nath v. The Commissioner of Income Tax Delhi, [1959] Supp. 1 S.C.R. 528 a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H.Bhagwati and Subba Rao,JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.

We must, therefore, reject the preliminary objection and proceed to consider the validity of the petitioners' contentions on merits.






PRE CONSTITUTIONAL LAWS : - NO RETROSPECTIVE EFFECT


Supreme Court of India

Keshavan Madhava Menon vs The State Of Bombay on 22 January, 1951

Article 13 (1) with which we are concerned for the purposes of this application is in these terms: - "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."


It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute is prima facie pro- spective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13 (1) which may be read as indicating an intention to give it retrospective operation. On the con- trary, the language clearly points the other way. The provi- sions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is "Fundamental Rights". These rights are given, for the first time, by and under our Constitution. Before the Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly pro- spective in its operation. After this first point is noted, it should further be seen that article 13 (1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitu- tion no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsist- ent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. Learned counsel for the appellant has drawn our attention to articles 249 (3), 250, 357, 358 and 369 where express provision has been made for saving things done under the laws which expired. It will be no- ticed that each of those articles was concerned with expiry of temporary statutes. It is well known that on the expiry of a temporary statute no further proceedings can be taken under it, unless the statute itself saved pending proceed- ings. If therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then, in the absence of any saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time. It was on this principle that express provision was made in the several articles noted above for saving things done or omitted to be done under the expiring laws referred to therein. As explained above, article 13 (1) is entirely prospective in its operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause. The effect of article 13 (1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a. subsequent statute. As already explained, article 13 (1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contra- vention of the provisions of any law which, after the Con- stitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect. There is no. fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitu- tion came into 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. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on dif- ferent grounds. In view of that conclusion, we do not consider it necessary to examine the reasons of the High Court for its conclusion. In our opinion, therefore, this appeal fails, and is dismissed.


DOCTRINE OF SEVERABILITY OR SEPARABILITY :- Supreme Court of India

R. M. D. Chamarbaugwalla vs The Union Of India(With Connected ... on 9 April, 1957

Equivalent citations: 1957 AIR 628, 1957 SCR 930

where the question of severability has been the subject of consideration in numerous authorities. They may be 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. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2, pp. 176-177.


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. Vide Cooley's Constitutional Limitations, Vol. 1 at pp. 360-361; Crawford on Statutory Construction, pp. 217-218.


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 which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219.


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; (Vide Cooley's Constitutional Limitations, Vol. 1, pp. 361-362); 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 provisions 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. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.