By Nickkita Shome


The Constitution of India is the lengthiest and the most comprehensive of all the written constitutions of the world. The last numbered Article is 395 and there are 25 Parts and 12 Schedules in the Constitution. Since 1951, several Articles have been added to and several Articles have been omitted from the Constitution.[1] Part- III of the Constitution contains the fundamental rights of the citizen of India. This Chapter of the Constitution of India is described as the Magna Carta of India.[2]

While making the Indian constitution, the makers took the idea of adopting the democratic and humanitarian concept from a lot of nations. Our founding fathers endeavoured to formulate something which reflects multiple things like rights of the minority, principle of UDHR, our struggle for independence, and whatnot. Therefore, 38 days were taken to discuss the formation of Part III. It exists with the same objective that our rights and freedoms should be protected against the state’s arbitrary invasion. Consequently, this means that the state’s actions should be judged based on their impact on the rights and freedoms of the people.

The inclusion of a Chapter of Fundamental Rights in the Constitution of India is in accordance with the thoughts of a modern democratic society, and the idea being to preserve that which is an indispensable condition of a free society. The aim of having fundamental rights was to declare that certain elementary rights, such as the right to life, liberty, freedom of speech, freedom of faith, and so on, should be regarded as inviolable under all conditions and that the Legislature of the country should not have a free hand in interfering with these fundamental rights. [3] Fundamental Rights came into force on the same day as our constitution i.e., 26th January 1950. Article 13 deals with four principles relating to Fundamental Rights.

Basic Concept of Article 13

Article 13 (1) deals with pre-constitutional laws. Many different laws were present before the constitution came into being, and remained in effect even after that. Article 13 provides that those laws (existing before the constitution) which are consistent with fundamental rights will remain valid. For example, there was an Education Act of 1930 which had many clauses that dealt with subjects like the appointment of chairman, what will be the amount of fund that will be allocated, what will be the age group of the children, etc. Along with the other things, there was a clause that stated that children from a certain caste or community shall not be admitted to the school. Now, since 1950, this clause stands in contravention of the fundamental rights. While applying Article 13 (1) in the same example, we can say that since this clause is against the fundamental rights, it would become void. Thus, according to Article 13 (1) all pre-constitutional laws,i.e., laws which were in force immediately before the commencement of the Constitution shall be void to the extent to which they are inconsistent with the fundamental rights from the date of the commencement of the Constitution. The main objective of Article 13 (2) is to secure the paramountcy of the Constitution, especially concerning fundamental rights.[4]

Article 13 provides for the ‘judicial review’ of all the legislations in India, past as well as future. This power has been conferred on the High Courts (Article 226) and the Supreme Court of India (Article 32) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part-III of the Constitution. There are two doctrines, which are related to Article 13, in this regard i.e., Doctrine of Severability & Doctrine of Eclipse.

The Doctrine of Severability

The Doctrine of Severability or Separability basically means to separate. When a part of a statute or law is declared unconstitutional then there arises a question that whether the whole of the statute is to be declared void or only that part that is unconstitutional should be declared as such. Therefore, according to this doctrine, if a provision can be separated from that which is constitutional then only the wrongful part is to be declared void and not the entire statute. In simple language, we have to use a filter for all pre-constitutional laws, i.e., if it respects fundamental rights or not. All the laws which pass successfully through this filter are valid. The laws which cannot pass have to be separated. This is the doctrine of severability.

Article 13 of the Constitution uses the words “to the extent of such inconsistency be void” which means that when some provisions of the law are held to be unconstitutional then only the repugnant provisions of the law in question shall be treated by courts as void and not the whole statute.[5]

A very important case in this respect is A.K.Gopalan v. State of Madras,1950[6]. In this case, section 14 of the Preventive Detention Act was challenged. According to Section 14, if any person is detained under this act, he cannot disclose grounds of detention in court. Thus, Section 14 was against the fundamental rights. If we apply the doctrine of severability here and filter out the Preventive Detention Act, then only section 14 is inconsistent with fundamental rights and was not respecting them. Therefore, according to the doctrine of separation, we will have to minus only this provision from the act, and the remaining act shall remain valid and the omission of the section will not change the nature or the structure of the subject of the legislation.

The Doctrine of Eclipse

The other doctrine of Article 13 is known as the Doctrine of Eclipse. Eclipse means to hide or to shadow something, to hide. All those laws which cannot pass the filter of the doctrine of severability, which were separated or which are invalid or inconsistent with fundamental rights, shall be shadowed by fundamental rights. Fundamental rights would eclipse them or hide them. It basically means that they shall not cease to exist, but only become inoperative. If any amendment takes place in the future and all those fundamental rights become consistent with fundamental rights then, they will again become active. For instance, again taking Section 14 of the Preventive Detention Act as an example, which was already filtered out by the Doctrine of Severability. However, it was not a dead section but just a sleeping section. Thus, the doctrine of Eclipse is based on the principle that a law that violates Fundamental rights is not nullity or void ab initio but becomes only enforceable. “It is over-shadowed by the fundamental rights and remains dormant, but is not dead.”[7]

To illustrate, in the case of Bhikhaji v. State of M.P.,1955[8], the Berar MV Act, 1974 was challenged. There were certain sections in this Act that allowed the state government to transfer the ownership of all of the motor business to itself. After 1950, all those provisions were violating Article 19. Thereupon, here the whole Act was filtered out first, and then, all those sections were removed which were inconsistent with fundamental rights. Subsequently, after applying the doctrine of the eclipse, we can say that the fundamental rights will prevail over those valid sections and all these sections became inoperative. However, in 1951, clause (6) of Article 19 was amended and the government was authorized to monopolize certain businesses. Therefore, those sections which were inoperative because of section 19 due to the doctrine of severability, then became active.


Hence, Article 13 (1) deals with pre-constitutional law which denotes the laws which existed before the formation of the Constitution of India. If such laws are against fundamental rights, they shall become invalid and the extent to which they shall remain invalid shall be determined by application of two doctrines viz. The doctrine of Severability and the Doctrine of Eclipse. Article 13 (2) talks about post-constitutional laws, which denotes the laws that came into existence after the Indian Constitution did.

By Article 13, it was made clear that the state is prohibited to make such laws that are against fundamental rights. If such inconsistent laws are made, then they shall be void. There were a lot of twists in Article 13 (2) which were settled in State of Gujarat v. Ambica Mills,1974[9]. In this case, a certain labour welfare fund was challenged. It contained certain questions which were against fundamental rights. Now it was clear that after the constitution came into effect, the State did not have the power to pass a law that was against fundamental rights. But, in this case, the respondent was a company. So, the question, was whether fundamental rights are available to the company who is not a person and hence, is not considered a citizen and consequently, who was not granted the fundamental rights. Thereupon, in respect of that, whether this act would be valid or not. The Supreme Court held that it is only as against the citizens that they remain in a dormant or moribund condition but they will remain in operation as against non-citizens who are not entitled to fundamental rights.[10] In simple words, it was directed that the fundamental rights are not granted to companies but these sections will still, be operative for non-citizens.

So basically firstly, the state is prohibited from making any laws that are against fundamental rights. Secondly, even if such a law is made, it shall not be applicable to the citizens but to all those categories of parties that have not been granted fundamental rights like companies and non-citizens, and for them, that piece of legislation is still operative.

[1] Constituent Assembly Debates, Vol. XI, pp. 839-840 [2] V.G. Ram Chandran – Fundamental Rights and Constitutional Remedies, Vol.1 (1964), p. 1. [3] A.K. Gopalan V. State of Madras, AIR 1950 SC 27 [4] Renu V. District and Session Judge, Tis Hazari, AIR 2014 SC 2175 [5] Motor General Traders V. State of A.P., (1984) 1 SCC 222 [6] AIR 1950 SC 27 [7] Bhikaji Narayan V. State of M.P., AIR 1955 SC 781 [8] AIR 1955 SC 781 [9] State of Gujarat V. Sri Ambika Mills, AIR 1974 SC 1300 [10] State of Gujarat V. Sri Ambika Mills, AIR 1974 SC 1300

Author: Nickkita Shome

BA-LLB, 2nd Semester.

Amity University.

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