Fundamental rights are an indispensable condition of a free society. They are enshrined in Part III of the Indian Constitution. Part III is considered to the Magna Carta of India. Fundamental Rights are considered to be very basic, indispensable and inalienable rights under all the conditions. The importance of the fundamental rights is well highlighted by Justice Bhagwati in Maneka Gandhi v. Union of India[i]. He observed: “These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of an individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual liberty in its various dimensions.” It is also important to note that Part III does not confer upon us the fundamental rights but rather it confirms the existence of such rights and therefore the fundamental rights cannot be said to be the gift given to the individuals by the state.
Article 13 is of very importance as it upholds the paramountcy of the Constitution especially with regard to the fundamental rights. According to Article 13 a law which abridges, violates or takes away the fundamental rights is void to the extent that it violates such rights. Article 13 not only talks about the prospective laws which will be enacted by the Parliament but in clause 1 talks about the laws already enacted and are in force at the time of commencement of the Constitution. Article 13 (2) bars the Parliament to make any law which would violate the fundamental right and Article 13 (1) makes all the pre-existing laws that are in force at the time of the commencement of the constitution as void to the extent that they abridge the cherished rights of the citizens.
Before the Constitution of India was enacted, there were many laws which were in force. The Constitution of India inserted the Fundamental Rights Chapter in its Part III. This meant that the rights which were ordinarily spoken of were given a constitutional status. And now, every law already in force or law which was going to be enacted was to be looked/ checked from the fundamental, rights perspective.
DOCTRINE OF SEVERABILITY
Article 13 uses the words “to the extent of such inconsistency be void”. The question which arises is whether the entire act is void or the particular section that is inconsistent with the constitution is void. To resolve this question the Hon’ble Supreme Court in Motor General traders v. State of A.P[ii] had devised the doctrine or principle of Severability or separability. According to this doctrine, if the part, which is declared unconstitutional, can be separated from the that which is constitutional, then only the part which is unconstitutional is void and not the entire statute. This means that when a particular provision is held to be unconstitutional, then only the repugnant provision of the law in question shall be treated by the courts as void and the whole statute.
If the omission of a particular section or a part which is unconstitutional can be separated from the other part/ the other part remains unaffected/ the omission of the section will not change the nature/ the structure of the subject of the legislation, then only the offending part will be void and not the entire statute.[iii]
But the exception to this doctrine is that when the valid portion is so closely mixed with the repugnant part that it cannot be separated or even if separated, the nature and the structure of the entire statute would change, then the courts will hold the entire act as void. The test is that whether the part that is separated can stand independently or not. If the valid part can stand independently than only the repugnant portion would be void and the not the entire statute. In Romesh Thapper v. State of Madras[iv] the Hon’ble Supreme Court had observed: “Where a law purports to authorize the imposition of restrictions on Fundamental Rights in language wide enough to cover restrictions, both within and without the limits of the constitution, and where it is not possible to separate the two, the whole law is to be struck down. So long as its possibility of being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void”.
Therefore, it can be concluded that after declaring the provisions of the act to be unconstitutional, the act can stand independently and forms a complete code even after deletion of the repugnant provision, then the Act is valid and only the other part which is inconsistent with the Constitution is void.
DOCTRINE OF ECLIPSE
The above-mentioned doctrine applies to the pre-existing laws at the time of commencement of the constitution. After the commencement of the Constitution, the laws already in force i.e. existing laws, had to be in accordance with the constitution. This means that if an already existing statue is not in accordance with the Part III of the Constitution, it will be overshadowed by the Fundamental Rights, remain dormant and would not be dead. It would not be wiped out entirely from the statute book. It would still exist for all the past transactions and for the enforcement of rights and liabilities before the commencement of the Constitution.
This doctrine would not be applicable to the post-constitutional law as the law enacted after the commencement of the constitution is made under Article 13 (2) and it is void from its very inception.[v] The reason being that when the law was enacted it was valid but it ceased to be in operation only after the constitution because the same had to be in accordance with the constitution but whereas the voidness of the post-constitutional law is from its from its inception.
An exception to the above settled position is that a post-constitutional law would not be nullity or void in all cases. It is because the post constitutional law would still be operative for the non-citizens as the fundamental rights are only conferred on the citizens.[vi]
CONCLUSION
Fundamental Rights are of paramount importance. Article 13 tends to protect the fundamental rights of the citizens from any such law that is inconsistent with the provisions of the constitution. It not only protects the citizens from the laws that are enacted after the constitution (as the rights were made available only after the constitution came into force) but also against the pre-constitutional laws, with the sole object to ensure that the pre-constitutional laws were also made in accordance with the Constitution.
[i] AIR 1978 SC 597 at p. 619.
[ii] 1984 (1) SCC 222
[iii] A.K Gopalan v. State of Madras AIR 1950 SC 27; State of Bombay v. Balsara AIR 1951 SC 318
[iv] AIR 1950 SC 124
[v] Deep Chand v. State of U.P AIR 1959 SC 648; Mahindra Lal Jain v. State of U.P AIR 1963 SC 1019
[vi] State of Gujarat v. Ambica Mills AIR 1974 SC 1300
BY: HITESH VACHHANI [FOUNDER, JURISTIC LEGAL]
DECLARATION
This is an original work of the Author(s) and is result of author(s) own intellectual efforts and is only for academic purpose. The matter embodied has been properly referenced and acknowledged to avoid any kind of copyright issues.
JURISTIC LEGAL 