“Law Master’s Publication”
‘Justifiability of Fundamental Rights’ Prof. Santosh D Bhosale
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JUSTIFIABILITY OF FUNDAMENTAL RIGHTS (Art. 13)
QUESTION BANK
Q1. Explain the “justifiability of fundamental rights”.
Q2. Explain the concept of “law” enshrined under Art. 13 of the Constitution.
Q3. What is the fate of the laws made before and after the commencement of the
Constitution?
Q4. Explain different doctrines that emerged under Art. 13.
SHORT NOTES
(i) Doctrine of Severability-
(ii) Doctrine of Eclipse-
(iii) Post-Constitutional laws-
(iv) Doctrine of waiver-
TABLE OF CONTENT.
I. General – ........................................................................................................................33
II. Laws inconsistent with fundamental rights (Art. 13)-..................................................33
(a) Pre-Constitutional laws-...........................................................................................33
(i) Doctrine of Severability-.......................................................................................33
(ii) Doctrine of Eclipse- .................................................................................................34
Bhikaji V. State of M.P..................................................................................34
(b) Post-Constitutional laws-......................................................................................35
(iii) Doctrine of waiver-.................................................................................................35
“Law Master’s Publication”
‘Justifiability of Fundamental Rights’ Prof. Santosh D Bhosale
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I. General –
Art. 13, in a true sense, makes fundamental rights justifiable, i.e. enforceable in the
courts. In a true sense, it provides teeth to fundamental rights.
Art. 13 declares all laws, whether pre-Constitutional or post-Constitutional, void if
they are inconsistent with, abridge, or violate fundamental rights.
In other words, Art. 13 provides judicial review of all past and future laws. The
Supreme Court, under Art. 32, and the High Courts, under Art. 226, can review past,
present, or future laws and ensure that they are not inconsistent with fundamental rights.
This power of judicial review is the basic structure of the Constitution.
II. Laws inconsistent with fundamental rights (Art. 13)-
(1) All laws in force in the territory of India immediately before the commencement of this
Constitution shall be void to the extent to which they are inconsistent with the
provisions of part III of the Constitution (Pre-existing laws.).
(2) The state shall not make any law which takes away or abridges the fundamental rights
conferred by part III of the Constitution; any law made in contravention of fundamental
rights shall, to the extent of the contravention, be void (Post-Constitutional laws).
(3) the term ‘law’ under this Article includes laws passed by the Union and State
legislatures and any ordinance, order, by-law, rule, regulation, notification, custom, or
usage having the force of law.
(a) Pre-Constitutional laws-
According to clause (1), all pre-constitutional laws are void to the extent that they
are inconsistent with the provisions of the fundamental rights.
Courts, while interpreting this clause, have evolved some important doctrines, viz-
(i) Doctrine of Severability-
Sometimes, the question comes before the court about whether the whole of the
statute should be declared void or only the unconstitutional part should be declared void.
“Law Master’s Publication”
‘Justifiability of Fundamental Rights’ Prof. Santosh D Bhosale
34
To resolve this problem, the Supreme Court devised the doctrine of severability or
reparability. The doctrine states that if the offending provision can be separated from the
constitutionally valid provisions, only the offending part will be declared void, not the
entire statute.
The words “to the extent of such inconsistency be void” mentioned in Art.13
recognise the doctrine of severability.
Court declared S. 14 of the Preventive Detention Act 1950 void, leaving the remaining Act
valid.
In many cases, courts have declared some provisions void, keeping the remaining
amendments to the extent of repugnancy were held void.
(ii) Doctrine of Eclipse-
The Doctrine of eclipse has first time evolved by the Supreme Court in
Facts- In this case, the enacted law in 1948 authorised the State Government to exclude
all private motor transport businesses from public transport. Thus, the Act permits the state
to create a monopoly in the public transport business.
However, coming into force of the Constitution in 1950 by way of Art. 19 (1) (g) of
the above Act became inconsistent and therefore void. Art. 19(1) (g) gave the fundamental
right to all citizens to “practice any profession, or to carry on any occupation, trade or
business”. Thus, as per the Constitution, it was valid if any citizen wanted to carry on
transport business.
However, Parliament amended the provision of Art. 19(1) (g) in 1951 and restricted
the above right of “practising any profession and to carry on any occupation, trade or
business”. The amendment permitted the state government to monopolise any business.
Issue- What is the effect of the Constitutional Amendment on the Act of 1948? Was the
1948 Act void at the time of coming into force of the Constitution in 1950? Therefore, can
it not be revived? Does the Act require re-enactment, or does it automatically review by
constitutional amendment?
1 AIR 1950 SC27.
2 State of Bombay V. Balsora ( AIR 1950 SC27)
3 AIR 1970 SC.628
4 AIR 1993 SC. 412
5 AIR 1955 SC. 781
“Law Master’s Publication”
‘Justifiability of Fundamental Rights’ Prof. Santosh D Bhosale
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In short, what would be the fate of the law that has become void due to the coming
into force of the Constitution?
Supreme Court held- that such pre-existing inconsistent law would not become void in
total and, therefore, cannot be wiped out altogether from the statute book. Such a law will
be regarded as having been ‘eclipsed’ for now.
It goes dormant or moribund for the time being. However, if a relevant fundamental
right is amended, the effect would be the removal of the shadow cast on that Act, and the
law would be automatically reviewed and made operative. In other words, the eclipse of
the Act is over, and the law becomes unblemished and clear.
The doctrine applies to pre-constitutional laws only. Post-constitutional law is
Thus, the doctrine was applied in several subsequent cases.
(b) Post-Constitutional laws-
Clause (2) of Art. 13 prohibits a state from making any law that takes away or
abridges fundamental rights. If the State makes such a law, it becomes ultra-vires and void
to the extent of the contravention. The doctrine of the eclipse would not apply to such
However, in subsequent decisions, the court has held that such inconsistent post-
However, the Supreme Court in Dulare Lodh v. Additional District Judge
(iii) Doctrine of waiver-
The doctrine of waiver does not apply to fundamental rights. In other words, a
person cannot waive his fundamental rights.
The landmark judgment on the point of waiver is-
Facts—The petitioner's case was referred to the Income Tax investigating Commissioner
under S. 5 (1) of the Taxation of Income Act. The commissioner found the petitioner to
have concealed a large amount of income. After that, the petitioner agreed at a settlement
in 1954 to pay Rs. 3 lakh in monthly instalments as tax arrears and as a penalty. However,
in 1955, the Supreme Court held S. 5 (1) of the Act ultra vires.
6 State of Gujrat V. Shri Ambika Mills (AIR 1974 SC 1300.
7 Deep Chand v. State of U.P. AIR 1959 SC 648
8 State of Gujrat V. Ambica Mills AIR 1974 SC 1300
9 AIR 1984 SC 1260
10 AIR 1959 SC 149
“Law Master’s Publication”
The petitioner challenged the Rs. 3 lakh payment settlement between him and the
I.T. Commissioner.
‘Justifiability of Fundamental Rights’ Prof. Santosh D Bhosale
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The I.T. Department agreed that though S. 5 (1) is void, the petitioner had waived
his fundamental right of equality and equal protection (Art. 14) by entering into an
agreement to pay tax.
Supreme Court held that it is not open to a citizen to waive any fundamental rights
guaranteed by the Constitution.
In other words, fundamental rights are not subject to waiver.
C) Law-
The ‘law’ that should not take away or abridge any fundamental rights is defined
under Sub-clause (3).
Under the clause, the term ‘law’ is defined broadly, including an ordinance, order,
by-law, regulation, notification, custom, or usage having the force of law.
Thus, the concept of ‘law’ under this clause is broader than the ordinary concept of
‘law’, which refers to enacted laws.
However, the definition does not affect the personal laws of Hindus, Muslims,
Christians, etc.
The term ‘laws in force’ denotes all existing laws passed by the legislature or other
competent authorities even though they are not in operation.
Is Constitutional amendment a ‘law’ under Art. 13 (2)?-
The question first arose before the Supreme Court in the case of Shankari Prasad v.
Union of India as to whether the term ‘law’ in clause (2) of Art. 13 also includes
Constitutional amendments. Supreme Court held that the term ‘law’ in Art. 13 does not
include the power of amendment of the Constitution under Art. 368.
In other words, by Constitutional amendments, even fundamental rights can be
taken away, and the definition of ‘law’ under clause (2) of Art. 13 does not bar
Constitutional amendments to any effect.
decisions and held that the term ‘law’ in Art. 13 (2) includes an amendment of the
Constitution passed under Art. 368.
This decision led Parliament to pass the 24th Amendment to the Constitution in
1971. By the amendment, clause (4) in Art. 13 and Clause (3) in Art. 368 were inserted.
The newly inserted matter is “Nothing in Art. 13 shall apply to any amendment of this
11 AIR 1956 SC 845
12 AIR 1967 SC 1643
“Law Master’s Publication”
‘Justifiability of Fundamental Rights’ Prof. Santosh D Bhosale
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Constitution made under Art. 368.”
Thus, the above amendment in the Constitution gave Parliament the freedom to
amend the Constitution to any extent, including fundamental rights.
However, the tussle between the court and Parliament is set at rest by the Supreme
Constitutional amendment was challenged on the grounds of being unconstitutional.
However, the Supreme Court held that the 24th amendment of the Constitution is valid and,
therefore, the term ‘law’ in Art. 13 does not include ‘amendments of the Constitution by
Parliament under Art. 368”.
However, in this case, the court framed the Constitution with the ‘Basic Structure’
doctrine and further held that Parliament can amend the Constitution under Art. 368, but
‘the basic structure of the Constitution should not be affected, and fundamental rights are
the basic structure of the Constitution.
*****
13 AIR 1973 SC 1461