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.

7.In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide. Sutherland on Statutory Construction, Vol. 2, pp. 177-178. Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clear-cut as that between commercial and wagering contracts. On the facts, there might be difficulty in deciding whether a given competition falls within one category or not ; but when its true character is determined, it must fall either under the one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question, would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be.

DOCTRINE OF ECLIPSE :

Supreme Court of India

Bhikaji Narain Dhakras And Others vs The State Of Madhya Pradesh And ... on 29 September, 1955

Equivalent citations: 1955 AIR 781, 1955 SCR (2) 589

Author: S R Das

Bench: Das, Sudhi Ranjan, Bhagwati, Natwarlal H., Aiyyar, T.L. Venkatarama, Imam, Syed Jaffer, Aiyar, N. Chandrasekhara

The true effect of Art. 13(1) is to render an Act, inconsistent with a fundamental right, inoperative to the extent of the'inconsistency. It is overshadowed by the

fundamental right' and remains dormant but is not dead. With the amendment made in cl. (6) of Art. 19 by the first Amendment Act the provisions of the impugned Act were no

longer inconsistent therewith and the result was that the impugned Act began to operate once again from the date of such amendment with this difference that, unlike amended

clause (2) of Art. 19 which was expressly made retrospective, no rights and obligations could be founded on the provisions of the impugned Act from the date of the

Commencement of the Constitution till the date of the amendment. The notification declaring the intention of the State to take over -the bus routes to the exclusion of all

other motor transport operators was, therefore, perfectly valid.

Delhi High Court

Uoi & Ors. vs Duli Chand on 7 December, 2010

Conventionally understood, the Doctrine of Eclipse pertains to the area of Constitutional Law where an existing law is held to be inconsistent with a fundamental right and this would be making the law inoperative from the date of commencement of the Constitution or a law enacted post independence but held to be unconstitutional and in both circumstances by and under a constitutional amendment, the blemish/infirmity is removed with reference to the existing law. The law in the moribund or eclipsed state, becomes operative on the principle as explained by the Supreme Court in the decision reported as AIR 1955 SC 781 Bhikaji Narayan vs. State of M.P. that an existing law inconsistent with a fundamental right though becomes inoperative from the date of commencement of the Constitution is not dead altogether and the position is that it is eclipsed for the time being and the effect of the amendment to free it from blemish or infirmity removes the shadow and makes the impugned act free. In the decision reported as AIR 1958 SC 468 M.P.V Sundaramier vs. State of AP it was held that when the Constitutional bar is removed by a Constitutional amendment, the law held to be unconstitutional will operate proprio vigour after the Constitutional amendment and there is no need for fresh legislation.

Supreme Court of India

Mahendra Lal Jaini vs The State Of Uttar Pradesh And ... on 7 November, 1962

Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C.

The respondents, however, rely on the next case in this series, namely, Bhikaji Narain Dhakaras v. The State of Madhya Pradesh (1). That case was however dealing with a pre-Constitution law and not with a post-Constitution law. In that case an argument was put forward that Saghir Ahmad's case(2) would apply. But it was held that would not be so far the simple reason that Saghir Ahmad's case (2) was dealing with a post-,Constitution law, while that case was concerned with a pre-Constitution law. It was in that connection that Art. 13 (1) came to be considered, and it was observed that the true effect of the Article is to render an Act, inconsistent with a fundamental right,., inoperative to the extent of the inconsistency. It was further observed that "it is overshadowed by the fundamental right and remains dormant but is not dead". With the amendment made in the Constitution, it was pointed out, the provisions of the particular Act were no longer inconsistent therewith and the result was that the impugned Act began to operate once again from the date of such amendment. In that connection, it was observed at p. 599 that "'the true position is that the impugned law became, as it were eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First Amendment), Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or infirmity". It was further pointed out that "the American authorities refer only to post-Constitution laws which were inconsistent with the provisions of the Constitution. Such laws never came to fife but were stillborn as it were. The American authorities therefore cannot fully apply to pre-Constitution laws which, were perfectly valid before the Constitution". The respondents, however, rely on the following passage at p. 599 "But apart from this distinction between pre- Constiution and post-Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of article 13, rendered void "to the extent of such inconsistency'. Such laws were not dead for, all purposes. They existed for the purpose of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non citizens. It is only as against the citizens that they remained in a dormant or moribund condition".

It is true that the learned judges did say that they need not rest their decision on the distinction between pre- Constitution and post-Constitution laws ; but the later part of these observations where the learned judges say that such laws are not dead for all purposes shows that they had in mind pre-Constitution laws, for otherwise they could not have said that they existed for the purpose of pre- Constitution rights and liabilities and they remained operative even after the Constitution as against non- citizens. We are therefore of opinion that the decision in Bhikaji Narain's case (1) must be confined to pre- Constitution laws to which the doctrine of eclipse would apply. We are fortified in this opinion by the fact that the learned judges in Bhikaji Narain's case(1) themselves distinguished the earlier decision in Saghir Ahmad's case(2), to which Das Acting C. J, who delivered the judgment in Bhikaji Narain's case(1) was also a party.

, Deep Chand v. The State of Uttar Pradesh(3). In that case, the majority after referring to all these (1) [1959] 2 S.C.R. 589. (2) [1955] 1 S.C.R. 707. (3) [1959] Supp. 2 S.C.R. 8.

cases pointed out the distinction between Arts. 13(1) and 13(2), and further held that the limitations imposed by Chap. III on legislative power were on the same level as the competence of the legislature to make laws. The following observations at p. 20 will bring out the position clearly :-

"Parliament and the Legislatures of States have power to make laws in respect of any of the matters enumerated in the- relevant Lists in the Seventh Schedule and that power to make laws is subject to the provisions- of the Constitution, including Art. 13., i.e., the power is made subject to the limitations imposed by Part III of the Constitution. The general power to that extent is limited. The Legislature, therefore, has no power to make any law in derogation of the injunction contained in Art. 13. Art. 13(1) deals with laws in force in the territory of India before the commencement of the Constitution and such laws insofar as they are inconsistent with the provisions of Part, III shall to the extent of such inconsistency be void. The clause, therefore, recognises the validity of the pre-Constitution laws and only declares that said laws would be void thereafter to the extent of their inconsistency with Part III ; whereas clause (2) of that Article imposes a prohibition o n the State making laws ,taking away or abridging the rights conferred by Part III, and declares that laws made in contravention of this clause shall to the extent of the contravention be void. There is a clear distinction between the two clauses. Under clause (1) a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III, whereas no post-Constitution law can be made contravening the provisions of Part III and therefore the law to that extent, though made, is a nullity from its inception".

The minority however thought that it was not necessary to decide this question in that case, and therefore did not finally express its views.

A review of these authorities therefore in our opinion clearly shows that the doctrine of eclipse will apply to pre-Constitution laws which are governed by Art. 13(1) and would not apply to post-Constitution laws which are governed by Art. 13(2). It is, however, urged on behalf of the respondents that on the language of Art. 13(1) and (2) there should be no difference in the matter of the application of the doctrine of eclipse. It is said that Art. 13(1) pres- cribes that insofar as the existing laws are inconsistent with the provisions of Part III, they shall to the extent of such inconsistency be void. Similarly,, Art. 13(2) provides that any law made in contravention of this clause shall to the extent of the contravention be void. The argument is two-fold. In the first place, it is urged that the words "'to the extent of the inconsistency" or "'to the extent of the contravention" mean "'so long as the inconsistency continues or so long as the contravention continues." We are of opinion that this is not the meaning of these words in Art. 13(1) and (2). Obviously, the Constitution makers when they used the words "'to the extent of" in both clauses intended that the pre-existing law or the post-Constitution law should only be void as far as the inconsistency or the contravention went i.e. if only a part of the law was inconsistent or contravened the constitutional prohibition, that part alone would be void and not the entire law. The obvious intention behind the use of the words ""to the extent of" was to save such parts of a law as were not in- consistent with or in making which the State did not contravene the prohibition against infringement of fundamental rights and that distinction may conceivably introduce considerations of severability ; it has in our opinion no reference to the time for which the voidness is to continue. Where the Constitution makers intended to refer to time they have used specific words for that purpose ; as, for instance, in Art. 251. That Article deals with "'inconsistency between lawsmade by Parliament under Articles 249 and 250 and laws made by the Legislatures of States' , and provides that........... .. the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by, the Legislature of the State shall to the extent of the repugnancy but so long only as the law made by Parliament continues to have effect, be in- operative." If therefore the Constitution makers intended that the provisions in Art. 13(1) and (2) would only affect laws so long as inconsistency continued or contravention lasted, they could have provided specifically for it. On a plain construction of the clause, the element of time, must be excluded. We cannot therefore accept the contention that the words ""to the extent of" import any idea of time. In our opinion, they only import the idea that the law may be void either wholly or in part and that only such portions will be void as are inconsistent with Part III or have contravened Part III and no more.

We may in this connection also refer to the difference in the language and scope of Art. 13(1) and 13(2). Art. 13(1) clearly recognises the existence of pre-existing laws in force in the territory of India immediately before the commencement of the Constitution and then lays down that i in so far as they are inconsistent with the provisions of Part III, they shall be void to the extent of such inconsistency. The preConstitution laws which were perfectly valid when they were passed and the existence of which is recognised in the opening words of Art. 13(1) revive by the removal of the inconsistency in question. This in effect is the doctrine of eclipse, which if we may say so with respect, was applied in Bhikaji Narain's case.(1) (1) [1955] 2 S.C.R. 589.

Art. 13(2) on the other hand begins with an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. There is thus a constitutional prohibition to the State against making laws taking away or abridging fundamental rights. The legislative power of Parliament and 'the Legislatures of States under Art. 245 is subject to the other provisions of the Constitution and therefore subject to Art. 13(2), which specifically prohibits the State from making any law taking away or abridging the fundamental rights. Therefore, it seems to us that the prohibition contained in Art. 13(2) makes the State as much incompetent to make a law taking away or abridging the fundamental rights as it would be where law is made against the distribution of powers contained in the Seventh Schedule to the Constitution between Parliament and the Legislatureof a State. Further, Art. 13(2) provides that the law shall be void to the extent of the contravention. Now contravention in the context takes place only once when the law is "made, for the contravention is of the prohibition to make any law which takes away or abridges the fundamental rights. There is no question of contravention of Art. 13 (2) being a continuing matter. Therefore, where there is a question of a post- Constitution law, there is a prohibition against the State from taking away or abridging fundamental rights and there is a further provision that if the prohibition is contravened the law shall be void to the extent of the contravention. In view of this clear provision it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13 (2) is a still,born law either wholly or partially depending upon the extent of the contravention. 'Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. plain reading therefore of the words in Art. 13(1) and Art. 13(2) brings out a clear distinction between the two. Art. 13(1) declares such pre-Constitution laws as are inconsistent with fundamental rights void. Art. 13 (2) consists of two parts; the first part imposes an inhibition on the power of the State to make a law contravening fundamental rights, and the second part, which is merely a consequential one, mentions the effect of the breach. Now what the doctrine of eclipse can revive is the operation of a law which was operative until the Constitution came into force and had since then become inoperative either wholly or partially; it cannot confer power on the State to enact a law in breach of Art. 13(2) which would be the effect of the application of the doctrine of eclipse to post-Constitution laws. Therefore, in the case of Art. 13(1) which applies to existing law, the doctrine of eclipse is applicable as laid down in Bhikuji Narain's case (1), but in the case of a law made after the Constitution came into force, it is Art. 13(2) which applies and the effect of that is what we have already indicated and which was indicated by this Court as far back as Saghir Ahmvd's case (2).

It is however urged on behalf of the respondents that this would give a different meaning to the word 'void" in Art. 13 (1). as compared to Art. 13 (2). We do not think so. The meaning of the word "void" in Art. 13 (1) was considered in Keshava Madhava Menon's caseand again in Behram Khurshed Pesikaka's caseIn the later case, Mahajan, C. J., pointed out thatthe majority in Keshava Madhava Menon's case (3) clearly held that the word "void" in Art. 13(1) did not mean that the statute stood repealed and therefore obliterated from the statute book; nor did it mean that the said statute was void ab initio. This, in our opinion if we may say so with respect, follows clearly from the language of Art. 13(1), which presupposes that the existing laws are good except to the extent of the inconsistency with the fundamental rights. there could not be any question of an existing law being void ab initio on account of the inconsistency with Art. 13(1), as they were passed by competent legislatures at the time when they were enacted. Therefore, it was pointed out that the effect of Art. 13(1) with respect to existing laws insofar as they were unconstitutional was only that it nullified them, and made them "'ineffectual and nugatory and devoid of any legal force or binding effect". The meaning of the word "void" for all practical purposes is the same in Art. 13(1) as in Art. 13(2), namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force or binding effect. But the pre-Constitution laws could not become void from their inception on account of the application of Art. 13(1) The meaning of the word ','void" in Art. 13 (2) is also the same viz., that the laws are ineffectual and nugatory and devoid of any legal force on binding effect, if they contravene Art. 13(2). 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.

Then comes the question as to what is the effect of an amendment of the Constitution in the two types of cases. So far 'as pre-Constitution laws are concerned the amendment of the Constitution which removes the inconsistency will result in the revival of such laws by virtue of the doctrine of eclipse, as laid down in Bhikaji Narain's case (1) for the preexisting laws were not still-born and would still exist though eclipsed on account of the inconsistency to govern_ preexisting matters. But in the case of post- Constitution laws, they would be still born tothe extent of the contravention. And it is this distinction which results in the impossibility of applying the doctrine of eclipse to post-Constitution laws, for nothing can be revived which never had any valid existence. We are therefore of opinion that the meaning of the word "void" is the same both in Art 13 (1) and Art. 13 (2), and that the application of the doctrine of eclipse in one case and not in the other case does not depend upon giving a different meaning to the word "void' in the two parts of Art. 13; it arises from the inherent difference between Art. 13 (1) and Art. 13 (2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post- Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being still_ born-there will be no scope for the application of the doctrine of eclipse. Though the, two clauses form part of the same Article, there is a vital difference in the language employed in them as also in their content and scope. By the first clause the Constitution recognises the existence of certain operating laws and they are declared void, to the extent of their inconsistency with fundamental rights. Had there been no such declaration, these laws would have con- tinued to operate. Therefore, in the case of pre- Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration. The law thus revives. However, in the case of the second clause, applicable to post Constitution laws, the Constitution does not recognise their existence, having been made in defiance of a prohibition to make them. Such defiance makes the law enacted void. In their case therefore there can be no revival by an amendment of the Constitution, though the bar to make the law is removed, so far as the period after the amendment is concerned. In the case of post- Constitution laws, it would be hardly appropriate to distinguish between laws which are wholly void-as for instance, those which contravene Art. 31-and those which are substantially void but partly valid,-as for instance, laws contravening Art. 19. Theoretically, the laws falling under the latter category may be valid qua non-citizens; but that is a wholly unrealistic consideration and it seems to us that such nationally partial valid existence of the said laws on the strength of hypothetical and pendantic considerations cannot justify the application of the doctrine of eclipse to them. All post Constitution laws which contravene the mandatory injunction contained in the first part of Art. 13 (2) are void, as void as are the laws passed without legislative competence, and the doctrine of eclipse does not apply to them.

Supreme Court of India

K.K. Poonacha vs State Of Karnataka & Ors on 7 September, 2010

The learned Judge then referred to the opinions of various American jurists including Prof. Cooley, the judgments of the U.S. Supreme Court in John M. Wilkerson v. Charles A. Rahrer (supra) and Newberry v. United State (1921) 265 U.S. 232 and of this Court in Keshavan Madhava Menon v. The State of Bombay (supra), Behram Khurshed Pesikaka v. The State of Bombay (supra), Saghir Ahmad v. The State of U.P. (supra) and Bhikaji Narain Dhakras v. The State of Madhya Pradesh and another (supra) and observed:

"The Constitutional validity of a statute depends upon the existence of legislative power in the State and the right of a person to approach the Supreme Court depends upon his possessing the fundamental right i.e. he cannot apply for the enforcement of his right unless it is infringed by any law. The cases already considered supra clearly establish that a law, whether pre-Constitution or post-Constitution, would be void and nugatory insofar as it infringed the fundamental rights. We do not see any relevancy in the reference to the directive principles; for, the legislative power of a State is only guided by the directive principles of State Policy. The directions, even if disobeyed by the State, cannot affect the legislative power of the State, as they are only directory in scope and operation. The result of the aforesaid discussion may be summarized in the following propositions: (i) whether the Constitution affirmatively confers power on the legislature to make laws subject-wise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislative power; (ii) the Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it follows from the premises that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention as the case may be; and (iv) the doctrine of eclipse can be invoked only in the case of a law valid when made, but a shadow is cast on it by supervening constitutional inconsistency or supervening existing statutory inconsistency; when the shadow is removed, the impugned Act is freed from all blemish or infirmity."

(emphasis supplied)

17. In Mahendra Lal Jaini v. The State of U.P. (supra), the petitioners questioned the constitutional validity of U.P. Land Tenures (Regulation of Transfers) Act, 1952 and Indian Forest (U.P. Amendment) Act, 1956. The petitioner had obtained a permanent lease from the Maharaja Bahadur of Nahan in respect of certain land known as "asarori" land situated in District Dehradun, Uttar Pradesh. The U.P. Zamindari Abolition and Land Reforms Act, 1951 was made applicable from July 1, 1952. By that Act all transfers made by intermediaries after the date of enforcement of the Act were declared void. The petitioner was directed not to clear the land or take any action in violation of the U.P. Private Forests Act, 1948. On March 23, 1955, a notification was issued under Section 4 of the Indian Forest Act, 1927 declaring certain lands including the land in dispute as reserved forest.

Thereafter, a proclamation was issued under Section 6 and objections were invited from the claimants. In March, 1956, the Indian Forest (U.P. Amendment) Act, 1956 was passed and a fresh notification was issued under Section 38-B of the amended Act prohibiting various acts mentioned therein. The petitioners challenged the constitutionality of the Transfer Act and the Forest Amendment Act. The Constitution Bench of this Court reviewed various precedents and observed that the doctrine of eclipse will apply to pre-Constitution laws which are governed by Article 13(1) and would not apply to post-Constitution laws which are governed by Article 13(2). The Court rejected the argument that there should be no difference in the matter of the application of doctrine of eclipse to both the clauses of Article 13 and observed:

"Article 13(2) on the other hand begins with an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. There is thus a constitutional prohibition to the State against making laws taking away or abridging fundamental rights. The legislative power of Parliament and the legislatures of States under Article 245 is subject to the other provisions of the Constitution and therefore subject to Article 13(2), which specifically prohibits the State from making any law taking away or abridging the fundamental rights. Therefore, it seems to us that the prohibition contained in Article 13(2) makes the State as much incompetent to make a law taking away or abridging the fundamental rights as it would be where law is made against the distribution of powers contained in the Seventh Schedule to the Constitution between Parliament and the legislature of a State. Further, Article 13(2) provides that the law shall be void to the extent of the contravention. Now contravention in the context takes place only once when the law is made, for the contravention is of the prohibition to make any law which takes away or abridges the fundamental rights. There is no question of the contravention of Article 13(2) being a continuing matter. Therefore, where there is a question of a post-Constitution law, there is a prohibition against the State from taking away or abridging fundamental rights and there is a further provision that if the prohibition is contravened the law shall be void to the extent of the contravention. In view of this clear provision, it must be held that unlike a law covered by Article 13(1) which was valid when made, the law made in contravention of the prohibition contained in Article 13(2) is a stillborn law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. A plain reading therefore of the words in Article 13(1) and Article 13(2) brings out a clear distinction between the two. Article 13(1) declares such pre-Constitution laws as are inconsistent with fundamental rights void. Article 13(2) consists of two parts; the first part imposes an inhibition on the power of the State to make a law contravening fundamental rights, and the second part, which is merely a consequential one, mentions the effect of the breach. Now what the doctrine of eclipse can revive is the operation of a law which was operative until the Constitution came into force and had since then become inoperative either wholly or partially; it cannot confer power on the State to enact a law in breach of Article 13(2) which would be the effect of the application of the doctrine of eclipse to post-Constitution laws. Therefore, in the case of Article 13(1) which applies to existing law, the doctrine of eclipse is applicable as laid down in Bhikaji Narain case; but in the case of a law made after the Constitution came into force, it is Article 13(2) which applies and the effect of that is what we have already indicated and which was indicated by this Court as far back as Saghir Ahmad case."

EXCEPTION TO GENERAL RULE OF ECLIPSE: Doctrine of Eclipse Applies to post constitutional law in certain scenario , below is the locus classicus on this point: Supreme Court of India

The State Of Gujarat And Another vs Shri Ambica Mills Ltd., ... on 26 March, 1974

Bench: Ray, A.N. (Cj), Khanna, Hans Raj, Mathew, Kuttyil Kurien, Chandrachud, Y.V., Alagiriswami, A.

If the meaning of the word 'void' in article 13(1) is the same as its meaning in article 13(2), it is difficult to understand why a pre-Constitution law which takes away or abridges the rights under article. 19 should remain operative even after the Constitution came into. force as regards non-citizens and a post-Constitution law which takes away or abridges them should not be operative as respects noncitizens. The fact that pre-Constitution law was valid when enacted can afford no reason why it should remain operative as respects non-citizens after the Constitution came into force as it became void on account of its inconsistency with the provisions of Part III. Therefore, the real reason why it remains operative as against non- citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness is, therefore, confined to citizens, as, ex hypothesis the law became inconsistent with their fundamental rights alone. If that be so, we see no reason why a post-Constitution law which takes away or abridges the rights conferred by article 19 should not 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.

Article 13(2) is an injunction to the 'state' not to pass any law which takes away or abridges the fundamental rights conferred by Part III and the consequence of the contravention of the injunction is that the law would be void to the extent of the contravention. The expression 'to the extent of the contravention' in the sub-article can only mean, to the extent of the contravention of the rights conferred under that part. Rights do not exist in vacuum. They must always inhere in some person whether natural or juridical and, under Part III, they inhere even in fluctuating bodies like a linguistic or religious minorities or denominations. And, when the sub-article says that the law would be void "to the extent of the contravention", it can only mean to the extent of the contravention of the rights conferred on persons, minorities or denominations, as the case may be. Just as a pre-Constitution law taking away or abridging the fundamental rights under article 19 remains operative after the Constitution came into force as respects non-citizens as it is not inconsistent with their fundamental rights, so also a post-Constitution law offending article 19, remains operative as against non- citizens as it is not in contravention of any of their fundamental rights. The same scheme permeates both,, the sub-articles, namely, to make the law void in article 13(1) to the extent of the inconsistency with the fundamental rights, and in article 13(2) to the extent of the contravention of those rights. In other words, the voidness is not in rem but to the extent only of inconsistency or contravention, as the case may be of the rights conferred under Part III. Therefore, 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 away or abridged, but there is no reason why the law should be void or 'still-born' as against those who have no fundamental rights.

It is said that the expression "to the extent of the contravention" in the article means that the part of the law which contravenes the fundamental right would alone be void and not the other parts which do not so contravene. In other words, the argument was that the expression is intended to denote only the part of the law that would become void and not to show that the law will be void only as regards the persons or entities whose fundamental rights have been taken away or abridged.

The first part of the sub-article speaks of 'any law' and the second part refers to the same law by using the same expression, namely, ,any law'. We think that the expression 'any law' occurring in the latter part of the sub-article must necessarily refer to the same expression in the former part and therefore, the Constitution-makers, have already made it clear that the law that would be void is only the law that contravenes the fundamental rights conferred by Part III and so, the phrase 'to the extent of the contravention' can mean only to the extent of the contravention of the rights conferred. For instance, if a section in a statute takes away or abridges any of the rights conferred by Part III it will be void because it is the law embodied in the section which takes away or abridges the fundamental right. And this is precisely what the sub- article has said in express terms by employing the expression 'any law' both in the former and the latter part of it. It is difficult to see the reason why the Constitution makers wanted to state that the other sections, which did not violate the fundamental right, would not be void, and any such categorical statement would have been wrong, as the other sections might be void if they are inseparably knitted to the void one. When we see that the latter part of the sub-article is concerned with the effect of the violation of the injunction contained in the former part, the words "to the extent of the contravention" can only refer to the rights conferred under Part III and denote only the compass of voidness with respect to persons or entities resulting from the contravention of the rights conferred upon them. Why is it that a law is void under article 13 (2) ? It is only because the law takes away or abridges a fundamental right. There are many fundamental rights and they inhere in diverse types of persons, minorities or denominations. There is no ,conceivable reason why a law which takes away the fundamental right of one class of persons, or minorities or denominations should be void as against others who have no such fundamental rights as, ex hypothesi the law cannot contravene their rights.

Allahabad High Court

Anjani Kumar Misra Son Of ... vs State Of U.P. Through Secretary, ... on 3 November, 2006

H.M. Seervai Constitution of India IVth Edition in para 8.30 summerises the law on the subject at pages 415 and 416 :

(1) There is a distinction between a law unconstitutional for lack of legislative power and a law unconstitutional because violative of provisions of the Constitution other than those which relate to the distribution of legislative power.

(2) A law which is unconstitutional for lack of legislative competence is void ab initio; a law which is unconstitutional for violation of constitutional limitations is unenforceable as long as it continues to violate constitutional limitations. Such a law, whether pre-Constitution or post-Constitution is not wholly void if it violates fundamental rights it is merely eclipsed by the fundamental right and remains, as it were, in a moribund condition as long as the shadow of fundamental rights falls upon it. When that shadow is removed the law begins to operate propriovigore from the date of such removal unless it is retrospective.

(3) A law void for lack of legislative competence is not revived if legislative power is subsequently given to the legislature which enacted it, a law partly void because of violation of constitutional limitations are removed.

(4) When a Court declares a law to be unconstitutional, that declaration does not repeal to amend the law, for to repeal or amend a law is a legislative and not a judicial function.

(5) The word 'void' in Article 13(1) and (2) does not mean 'repealed' nor is a law declared void under Article 13(1) or (2) obliterated from the statute book. Such a law is not wholly void but by the express terms of the article is void only to the extent of its repugnancy to, or contravention of the provisions of Part III relating to fundamental rights.

In U.S. Constitution 2nd Ed. Vol. 1 pp. 10 and 11 the following principle is laid down :

In Norton v. Shelby Co. 1885 (118) US 425, Mr. Justice Field says; " an unconstitutional act is not a 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.

The doctrine that the judicial declaration of the unconstitutionality of a statute has not the effect of a veto or nullification or abrogation of the statute so as, in effect, to strike it from the statute books, is excellently stated by the Court of West Virginia in Shephard v. Wheeling 30W. va 479. The Court says :

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 if 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 reason 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 not 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 cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reason and the basis of the fundamental rule that a court will never pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it.

The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested, it is beyond the legislative power it is not rendered valid, without re-enactment if later, by constitutional amendment, the necessary legislative power is granted. An after-acquired power cannot, ex proprio vigore, validate a statute void when enacted.

68. Thus what emerges is a law could be declared ultra vires either being beyond the legislative competence, or being in conflict With or offending any provision of the Constitution. In the former, the law could be said yet to be legislated to be considered as law while in the later legislated coined as law by the competent legislature but is void to the extent of its inconsistency with any provision of the Constitution. Though for both it is loosely said to be ultra vires, void and stillborn, yet there is difference in two. Similarly in both class of cases such law is said to be nullity hut concept of nullity takes different colour in them. In the former it is truly' stillborn', in the later it is treated in law to be 'stillborn' 'This is why in the later class of cases a law declared void or nullity remains on the statute book though erased from it being unenforceable. Thus, Court in such cases is said not to have repealed or annulled the statute. It simply refuses to recognise it. It is treated ineffective as unenforceable. Such laws are validated when cause of such offend is removed. It remains eclipsed by offending the Constitution. Eclipse denotes it being screened by such constitutional provision. Not to be seen. It is blind, though actually in existence. The moment screen is removed by removing cause of offend it takes effect, becomes enforceable and alive. So never removed from the statute book. Even nullity for the law of ultra vires has to be understood within this sphere. While in former when not legislated by the competent legislature has truly not taken birth. Really it is stillborn. It is nullity in the true sense as if never existed at any point of time. Thus, this nullity is in that absolute sense while in other it is in the limited sense. From all this it is clear without doubt in the later class of cases in which present case falls, even where a provision of a statute is declared ultra vires, which is void and is to be understood to be stillborn but by the procedure prescribed by law in appeal review or reference what is stillborn is infused back into life as life member. This' re-enforces well considered and settled proposition viz. it remains on statute book and is not erased from it. So if in appeal and review a stillborn provision could be brought back to life, why could it not be applicable in cases of reference. Thus contention, on the date reference it is not on the statute book could not be a ground to refuse to consider the reference, hence this preliminary ground also fails.

Now let us examine the first and second questions decided by Division Bench of this Court in Aruvendra Kumar Garg's case. In this connection, it is pertinent to mention that in Deep Chand v. State of U.P. (supra) a Constitution Bench of Hon'ble Apex Court after taking note of earlier decisions has held that there is clear distinction between two clauses of Article 13, under Clause (1) a pre-constiution law subsists except to the extent of its inconsistency with the provisions of Part III of the Constitution whereas no post constitution law can be made contravening the provisions of Part III of the Constitution and therefore, law to that extent, though made is nullity from its inception. Hon'ble Apex Court further held that when Clause (2) of Article 13 says in clear and unambiguous terms that no state shall make any law which takes away or abridges the right conferred by Part III of the Constitution. The limitation imposed by Part III of the Constitution on legislative power were on the same level as the competence of the legislature to make the laws in regard to the entries in the list of seventh schedule. Thus prohibition goes to the root of the matter and limits the state' s power to make law. The law made in spite of prohibition is still-born law. The doctrine of eclipse has no application to post constitution law infringing the fundamental rights as they would be ab-initio void, in toto to the extent of their contravention of fundamental rights, but in the aforesaid decision Hon'ble Apex Court did not notice its earlier decision rendered in Sundararamier's case . After taking note of Deepchand's case (supra), Sundararamier's case (supra) and L. Jagannath Etc. v. the Authorised Officer Land Reforms Madurai and Anr. (seven Judges Constitution Bench of Hon'ble Apex Court) in para 43 of the decision a Constitution Bench of Hon'ble Apex Court in State of Gujrat and Anr. v. Shri Ambica Jills Ltd. etc. has held that a post constitution Act which has been struck down for violating the fundamental rights and was therefore, still born, has still an existence without re-enactment for being put in Ninth Schedule. That only illustrates that any statement that a law which takes away or abridges fundamental rights conferred under Part III of the Constitution is still born or null and void requires, qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognised and acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true and there are many exception to it. A realistic approach has been eroding the doctrine of absolute nullity in all cases and for all purposes. No other authority has been shown to us where the decision of Hon'ble Apex Court rendered in L. Jagannath' s case and Sri Ambica Mills's case has been overruled by the Hon'ble Apex Court.

102. Thus from the aforesaid discussion it follows that a post constitution statute which has been struck down for violating the fundamental rights enshrined under Part III of the Constitution is void ab-initio, therefore, still-born, for the purpose of rights and obligations arise, there-from and remain unenforceable, but the same may be still in existence and remained in the statute book for other purpose like for putting it in Ninth Schedule. No doubt such ultra-vires statute can be placed in ninth schedule only by a constitutional amendment, which is virtually a legislative process to be carried on by the Parliament but once its existence, though for limited purpose is conceded, we see no reason why its existence is not accepted for other similar purposes like substitution by amendment which is also a legislative process.

01. Fundamental rights preliminary concepts.pdf

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