- 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.
- 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,—
- “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
- “laws in force” includes laws passed or made by a 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
- Nothing in this article shall apply to any amendment of this Constitution made under article 368.
POWER OF JUDICIAL REVIEW
The power of the Judiciary to review the Act of the Legislature or the Executive or the validity of a law or an order in order to determine its constitutional propriety and to ensure that such actions conform to the provisions of the nation’s Constitution is known as the “Doctrine of Judicial Review”. Judicial Review implies that the Constitution is the supreme power of the nation and all laws are under its supremacy and that any law inconsistent therewith is void through judicial review. Judicial review is adopted in the Indian Constitution from the Constitution of the United States of America.
Judicial review has two important functions-
- Of legitimizing government action, and
- The protection of constitution against any undue encroachment by the government.
In the Indian Constitution, Judicial Review is dealt with under Article 13 which provides for the judicial review of all legislations in India, past as well as future. This power has been conferred on the High Courts and the Supreme Court of India (Article 226 and Article 32 respectively) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution.
BASIS AND ORIGIN OF JUDICIAL REVIEW
The doctrine of judicial review was for the first time propounded by the Supreme Court of America. Originally, the United States Constitution did not contain an express provision for judicial review. The power of judicial review was, however, assumed by the Supreme Court of America in the historic case of Marbury v. Madison by Justice John Marshall.
State of Madras v. V.G. Row [AIR 1952 SC 196]
In Indian Constitution, there is an express provision for judicial review, and in this sense it is
on more solid footing than it is in America.
L. Chandra Kumar v. Union of India [AIR 1997 SC 1125]
The power of judicial review of legislative action as vested in Supreme Court by Article 32 and
in High Court by Article 226 is a basic feature of the Constitution and cannot be curtailed even by
When a part of a statute is declared unconstitutional then a question arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be declared as such. To resolve this problem, the Supreme Court has devised the doctrine of severability or separability. This doctrine means that if an offending provision can be separated from that which is unconstitutional then only that part which is offending is to be declared as void and not the entire statute. This conclusion can be very well drawn from the words that Article 13 uses i.e. “…to the extent of such inconsistency be void”
DOCTRINE OF SEVERABILITY
Doctrine of Severability or Separability is incorporated under Art. 13 Clause (2) which states that the State shall not make any laws which take away Fundamental Rights of a citizen. Therefore, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the Constitution, otherwise the laws and amendments will be deemed to be void-ab-initio. Such a law will be ultra vires (i.e. out of authority)
When a part of the statute is declared unconstitutional, then the unconstitutional part is to be removed and the remaining valid portion will continue as valid. The idea is to retain the Act or legislation in force by discarding or deleting only the void portion and retaining the rest. However, invalid part of the law will be severed only if it is severable, i.e., if after separating the invalid part, the valid part is capable of giving effect to the legislature’s intent, then only it will survive otherwise the court shall declare the entire law as invalid.
- A.K. Gopalan v. State of Madras [AIR 1950 SC 27]
Only Section 14 of Preventive Detention Act, 1950 was held unconstitutional. Applying the doctrine of severability, whole Act except Section 14 was held valid.
- State of Bombay v. F.N. Balsara [AIR 1951 SC 318]
It was observed that the certain provisions of Bombay Prohibition Act, 1949, which have been declared as void do not affect the entire statute, therefore, there is no necessity for declaring the whole statute as invalid.
- Romesh Thapper v. State of Madras [AIR 1950 SC 124]
- Supreme Court held that only if the unconstitutional portions cannot be removed then the whole Act will be utra-vires and thus unconstitutional.
- R.M.D.C. v. Union of India [AIR 1957 SC 628]
Supreme Court held that where after removing the invalid portion what remains constitutes a complete Code there is no necessity to declare the whole Act invalid. In such cases, whether the valid parts of the statute are separable from the invalid, the intention of the legislature is the determining factor.
THEORY OF ECLIPSE
According to Article 13(1), “All pre-constitutional laws, after the coming into force of Constitution, if in conflict with it in all or some of its provisions then the provisions of Constitution will prevail and the provisions of that pre-constitutional law will not be in force until an amendment of the Constitution relating to the same matter is made. In such situation the provision of that law will again come into force, if it is compatible with the Constitution as amended. This is called the Theory of Eclipse.
Article 13(1) is prospective in nature. All pre-Constitution laws inconsistent with the Fundamental Rights will become void only after the commencement of the Constitution. They are not void ab initio. In addition to article 13, articles 32, 124, 131, 219, 226 and 246 provide a constitutional basis to the Judicial review in India.
CAN SUCH A LAW WHICH BECOMES UNENFORCEABLE AFTER THE CONSTITUTION CAME INTO FORCE BE AGAIN REVIVED AND MADE EFFECTIVE BY AN AMENDMENT IN THE CONSTITUTION??
It was to solve this problem that the Supreme Court formulated the doctrine of eclipse in Bhikaji vs. State of M.P. [AIR 1955 SC 781]. Government of Central Province monopolized motor transport by an Act. Supreme Court held that the pre-constitutional law that violates fundamental
rights is not void ab initio. It is merely eclipsed. When Art 19 was amended to allow the state to
monopolize any business, the said act became constitutional again.
Post-Constitutional Laws– Clause (2) of Article 13 prohibits the State to make any law which takes away or abridges the rights conferred by Part III of the Constitution. If State makes such a law then that law will be ultra vires and void to the extent of the contravention. As contrary to Article 13 clause (1), clause (2) makes the inconsistent laws void ab initio.
Deep Chand v. State of U.P. [AIR 1959 SC 648]
It was held that doctrine of eclipse does not apply to Post-Constitutional law because such a
law is void ab initio. A subsequent constitutional amendment cannot revive such a law.
State of Gujarat v. Ambica Mills [AIR 1974 SC 1300]
Overruled Deep Chand’s ruling and held that a post-Constitutional law which is inconsistent with fundamental rights is not nullity or non-existent in all cases and for all purposes.
Dulare Lodh v. III Additional District Judge, Kanpur [AIR 1984 SC 1260]
Held that Doctrine of Eclipse applies to post-constitutional law and it is applicable to citizens as well.
DOCTRINE OF WAIVER
Waive means ‘to give away’ or ‘to surrender’
Point of concern here regarding Part III of Indian Constitution is that whether can a citizen waive his fundamental rights??
As held in Behram v. State of Bombay [AIR 1955 SC 146], the doctrine of waiver has no application to the provision of law enshrined in Part III of the Constitution of India. It is not open to an accused person to waive or give up his Constitutional rights and get convicted.
Basheshar Nath v. Income Tax Commissioner [AIR 1959 SC 149]
The appellant had reached a settlement with Income Tax Department to pay 3 Lakh rupees per month for taxes that he owed under Income Tax Act. However, later that Act was determined to be unconstitutional. So he challenged the settlement. Income Tax Department argued that he had waived his right by reaching a settlement. Supreme Court held that, unlike USA, Indian Constitution does not follow Doctrine of Waiver. It was further held that it is not open to a citizen to waive any of the Fundamental Rights conferred by Part III of the Constitution. Fundamental rights are an obligation imposed upon the state by the Constitution. It is the court’s duty to enforce them. No person can relieve the State of this obligation.
A question arises as to whether the term ‘law’ in Article 13 (2) includes just ordinary laws or Constitutional Amendment Acts also.
If Constitutional Amendment Act is not covered under law then the Parliament can amend the Fundamental rights by amending the Constitution itself.
For the purposes of Article 13, “law” is defined as including an Ordinance, Order, bye-law,
rule, regulation, notification, custom or usage having in the territory of India the force of law. The definition of “law” in this Article is wider than the ordinary connotation of law which refers to enacted law or enactment.
The Supreme Court in Shankari Prasad v. Union of India [AIR 1951 SC 458] held that Constitutional Amendment Act is not a law and thus Parliament can amend any Fundamental Right by using Constitutional Legislative power.
Supreme Court gave a similar verdict in Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845].
In Golak Nath v. State of Punjab [AIR 1967 SC 1643], the Supreme Court held that the word ‘law’ inArticle 13 (2) included every branch of law, statutory, Constitutional, etc., and hence, if an amendment to the Constitution took away or abridged fundamental right of citizens, the amendment would be declared void.
In order to remove the difficulty created by the Supreme Court’s decision in Golak Nath’s case, the Constitution (24th Amendment) Act, 1971 was enacted. By this amendment a new clause (4) was added to Article 13 which makes it clear that Constitutional amendments passed under Article 368 shall not be considered as ‘law’ within the meaning of Article 13 and, therefore, cannot be challenged as infringing the provisions of Part III of the Constitution. Therefore, Parliament has the power to amend Fundamental Rights through Constitutional Amendment.
The validity of Constitution (24th Amendment) Act, 1971 was challenged in the Supreme Court in Keshavananda Bharati v. State of Kerala [AIR 1973 SC 1461] The Supreme Court overruled Golak Nath case and upheld the validity of 24th Amendment Act. However, the Supreme Court held that the Parliament’s amendment power is limited and is subject to “Basic Structure” of the Constitution. The Supreme Court has not explicitly defined the term “Basic Structure”. However, in various judgments, the Supreme Court has held that the following concepts form a part of Basic Structure-
- Supremacy of the Constitution
- Secular character of the Constitution
- Separation of Powers
- Power of Judicial Review
- The mandate to build a welfare state