The Indian Constitution which came into force on 26th November, 1949 has different articles, schedules and parts so far. It has 448 articles 25 parts and 12 schedules up to date and this is the reason, it is considered as the lengthiest constitution in the world. It is also considered as the modern constitution due to its dynamic nature as different amendments can be enforced in the constitution enshrined under Article 368 of Indian Constitution.

The constitution ascertains a person with their rights and duties, the remedies to violation of rights and most importantly, divides the power uniformly among three organs of government that are legislature, executive and judiciary. It is done so in order to prevent arbitrariness. The constitutional law is taken in broader perspective of constitution as it defines those things which are indirectly mentioned in the constitution.

Some of them are Rule Of Law under Article 14, Separation Of Powers under Article 50, Judicial Review under Article 13 and so on. The features of constitution in short are citizenship, parliamentary form of government, blend mixture of flexibility and rigidity, universal adult franchise, separation of powers, rule of law, bicameralism, impeachment of president, judicial review, etc.

Article 13 In Brief

Article 13 of Indian Constitution has 4 clauses in it. The 4th clause got added through the twenty-fourth amendment, 1971. Basically, the short title of the article is laws inconsistent with or in derogation of the fundamental rights. This article is under Part-III which talks about fundamental rights in Indian constitution. So, in constitution the article is stated as:
Article 13:

• 13(1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
• 13(2): The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
• 13(3): In this article, unless the context otherwise requires:
  • (a) law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law;
  • (b) laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
• 13(4): Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality.

In this blog, we will try to focus on this article which gave birth to three doctrines and that are doctrine of eclipse, doctrine of severability and lastly, doctrine of waiver.

Doctrine of Eclipse

The word eclipse, itself means "hidden" or "dormant". In constitution, it also means the same that is the provision which remains inoperative for a period of time but not null or void. This doctrine is only applicable to pre-constitutional law which is mentioned under Article 13(1) of Indian Constitution. One such illustration regarding it is the right to property which was considered as a constitutional right in the colonial era but after constitution came into force, it became a fundamental right. So, here the old law was not void but became hidden or eclipsed by the new law. Later, through amendment, right to property was again considered to be constitutional right. Thus, the eclipse was removed away from the old law and it became operative again. One such case to be cited is Bhikaji Narain Vs State of Madhya Pradesh. In this case, "There was inclusion of a provision which allowed for the creation of government monopoly inside private transport business. This impugned provision was settled in pre-constitutional era. But after constitution came into force, the provision became void for violating article 19(1)(g) of the Indian constitution which talks about right to free trade, profession and business. But however, 19(6) got amended in 1951 which provided reasonable restriction to the above said clause.

The petitioners contended that the impugned provision being void under article 13(1) was dead and can't get amended but has to get re-enacted. After a thorough analysis, The Honourable Supreme Court held that after the amendment of 19(6) in 1951, the constitutional impediment was removed. The act, ceased to be unconstitutional and became operative and enforceable. The crux of the decision was that any inoperative pre-constitutional law is not dead altogether but most suitably, has became eclipsed for that certain period."

Doctrine of Severability

This doctrine is applicable both to 13(1) and 13(2) that is to both pre-constitutional and post-constitutional law in Indian constitution. This doctrine simply states that the invalid provision present in the act or the invalid act itself is to be "struck" or in other words "severed" down. Citing the case of A.K. Gopalan Vs State of Madras, in this case, "Section 14 of Prevention detention act was found to be violative of Article 14 that is equality under law in Indian Constitution. It was held by the Honourable Supreme Court that it is section 14 of the act which is to be struck down but not the whole act. It was also held that the omission of section 14 of the act will not change the object of the act and hence it is severable." Also taking another case of RMDC Vs. Union of India, "The provisions in the act were mixed together and it was difficult to severe a particular part of provision from the act. So, the whole act was deemed to be invalid and void."

Doctrine of Waiver
The term "Waiver" means when a person with both intention as well as knowledge gives away from exercising his right or chooses not to exercise his right which the person would be constitutionally having.
Now, citing the case of Behram Vs. Maharashtra, "Justice Aiyyar classified fundamental rights into two types are that are:

1. Rights conferring benefits on the individual
2. Rights conferring benefit on the general public

However, the majority of the people opposed option (a) since fundamental rights are those rights which cannot oppose the general public, and an individual can't choose to waive their right. Therefore, fundamental right is a matter of public policy and merely for the benefits of the individual.

Hence, this doctrine is not applicable in India as it cannot oppose the constitutional policy.

Conclusion
These doctrines are jewels to Article 13 and these doctrines provide a wider aspect on Article 13. This article is one and only which provides on which fundamental rights are consistent to the constitution and which are not. Fundamental rights are the basic structure of the Indian constitution and it is also equally important as it provides and ascertains reasonable rights to human beings. Fundamental rights are also the main features of Indian constitution and that's how Article 13 is considered important up to date. From the above three doctrines, the courts mostly use the first two doctrines while dealing with cases. Its application is important in daily legal life.

End Notes:

1. https://indiankanoon.org/doc/134715/
2. https://indiankanoon.org/doc/762155/
3. https://indiankanoon.org/doc/1857950/
4. https://indiankanoon.org/doc/725224/

Also Read:

• Article 13 of the Constitution of India