The Fundamental rights provided to the citizens of India are prestigious and
their eminence is above any of law.
The Fundamental rights in Part III of the Constitution of India have its origin
in sources including England’s Bill of Rights, the United States Bill of Rights
and France’s Declaration of the Rights of Man. These rights provide certain
civil liberties to the citizens of India. There are six Fundamental rights:
- Right to equality
- Right to freedom
- Right against exploitation
- Right to freedom of religion
- Cultural and educational rights
- Right to Constitutional remedies
These rights if violated, punishments are prescribed for it in the Indian Penal
It was necessary to know about Fundamental Rights to begin with the Doctrines.
Article 13 of the Constitution of India provides.
Laws inconsistent with or in derogation of the fundamental rights-
- 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
- The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause
shall, to the extent of the contravention, be void.
- In this article, unless the context otherwise requires,-
a) law includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of
b) laws in force includes laws passed or made by a Legislature or other
of this Constitution and not previously repealed, notwithstanding that any
such law or any part thereof may not be then in operation either at all or
in particular areas.
Both the Doctrines are in the context of Article 13 of the Constitution of
Doctrine of severability
It is also known as doctrine of separability. It protects our Fundamental
Rights, as it is mentioned in the clause 1) of the Article 13 of the
Constitution that All laws enforce in India, before the commencement of
Constitution, in so far as they are inconsistent with the provisions of
fundamental rights shall to the extent of that inconsistency be void. But the
whole law or act would not be held invalid, but only the provisions of the law
or act which are not in consistency with the Fundamental rights. This is what
the Doctrine of severability is. But it is only possible if the part which is
inconsistent with the law is separated from the whole law. If both the valid and
invalid part are so closely mix up with each other that it cannot be separated
then the whole law or act will be held invalid.
In A.K. Gopalan v. State of Madras
The Supreme court held that in case of repugnancy to the Constitution, only the
repugnant provision of the impugned Act will be void and not the whole of it,
and every attempt should be made to save as much as possible of the act. If the
omission of the invalid part will not change the nature or the structure of the
object of the legislature, it is severable. It was held that except Section 14
all other sections of the Preventive Detention Act, 1950 were valid, and since
Section 14 could be severed from the rest of the Act, the detention of the
petitioner was not illegal.
In State of Bombay v. F.N. Balsara
eight sections of the Bombay Prohibition Act were declared invalid, the Supreme
Court said that the portion which was invalid to the extent of fundamental
rights was separable from the rest of the act.
In R.M.D.C. v. Union of India
This landmark judgment completely observed Doctrine of severability, Justice
Venkatarama Aiyar observed:
- 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.
- 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
- Even when the provisions which are valid and 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.
- 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
if was when it emerged out of the legislature, then also it will be rejected
in its entirety
- The separability of the valid and invalid provisions of a statute does
not depend on whether the law is enacted in the same section of different
sections; it is not the form but the substance of the matter that is
material, and that has to be ascertained on an examination of the act as a
whole and of the setting of the relevant provisions therein.
- 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.
- In determining the legislative intent on the question of separability,
it will be legitimate to take into account the history of legislation, its
object, the title and preamble to it.
Doctrine of Eclipse
Eclipse occurs when one object overshadows the other, so as the name suggests
that Doctrine of Eclipse is applied when any law or act violates the fundamental
rights then the fundamental rights overshadows the other law or act and make it
unenforceable but not void ab initio. They can be enforced again if the
restrictions posed by the fundamental rights are removed.
The following case makes it clear-
In Bhikaji Narain Dhakras v. State of Madhya Pradesh
Section 43 of the Motor Vehicles Act, 1939 was amended by the Central Provinces
and Berar Motor Vehicles (Amendment) Act, 1947, both were pre- constitution
legislations. The Amendment Act empowered the Provincial Government to take up
the entire Provincial Motor Transport Business, these are violative of article
19(1) (g). By a Constitutional amendment of Article 19(1) (6) the State was
empowered to carry on the business to the notification issued by Government to
this effect was questioned. The Supreme Court held that the true position is
that the impugned law became, for the time being, eclipsed by the fundamental
right. The effect of the Constitution Act, 1951 was to remove the shadow and to
make the impugned act free from all blemish or infirmity.
The fundamental rights are paramount and article 13 which has in itself the
doctrine of severability and the doctrine of eclipse protect the dormancy of the