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    Doctrine of Severability

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    niceid
    The document discusses three doctrines related to laws in India: 1. The doctrine of severability states that if parts of a law are inconsistent with the Constitution, the invalid parts can be severed from the valid parts if they are separable. If not separable, the entire law is invalid. 2. The doctrine of eclipse says that pre-existing laws inconsistent with fundamental rights are not invalid, but rather "overshadowed" by fundamental rights. The inconsistency can be removed by amending fundamental rights. 3. The doctrine of waiver says that fundamental rights cannot be waived by any person, and the Supreme Court must enforce fundamental rights even if waived.

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    Doctrine of Severability

    Uploaded by

    niceid
    867 views2 pages
    The document discusses three doctrines related to laws in India: 1. The doctrine of severability states that if parts of a law are inconsistent with the Constitution, the invalid parts can be severed from the valid parts if they are separable. If not separable, the entire law is invalid. 2. The doctrine of eclipse says that pre-existing laws inconsistent with fundamental rights are not invalid, but rather "overshadowed" by fundamental rights. The inconsistency can be removed by amending fundamental rights. 3. The doctrine of waiver says that fundamental rights cannot be waived by any person, and the Supreme Court must enforce fundamental rights even if waived.

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    The document discusses three doctrines related to laws in India: 1. The doctrine of severability states that if parts of a law are inconsistent with the Constitution, the invalid parts can be severed from the valid parts if they are separable. If not separable, the entire law is invalid. 2. The doctrine of eclipse says that pre-existing laws inconsistent with fundamental rights are not invalid, but rather "overshadowed" by fundamental rights. The inconsistency can be removed by amending fundamental rights. 3. The doctrine of waiver says that fundamental rights cannot be waived by any person, and the Supreme Court must enforce fundamental rights even if waived.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    867 views2 pages

    Doctrine of Severability

    Uploaded by

    niceid
    The document discusses three doctrines related to laws in India: 1. The doctrine of severability states that if parts of a law are inconsistent with the Constitution, the invalid parts can be severed from the valid parts if they are separable. If not separable, the entire law is invalid. 2. The doctrine of eclipse says that pre-existing laws inconsistent with fundamental rights are not invalid, but rather "overshadowed" by fundamental rights. The inconsistency can be removed by amending fundamental rights. 3. The doctrine of waiver says that fundamental rights cannot be waived by any person, and the Supreme Court must enforce fundamental rights even if waived.

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    of 2

    DOCTRINE OF SEVERABILITY

    Article 13 of the Constitution of India provides for Doctrine of severability which states thatAll laws in force in India before the commencement of Constitution shall be void in so far they are
    inconsistent with the provisions of the Constitution.

    The State shall not make any law which takes away/ shortens the rights conferred in Part III of
    the Constitution. (ie. Fundamental Rights)

    Any law made in contravention of the provisions of the Constitution shall be void and invalid.

    The invalid part shall be severed and declared invalid if it is really severable. (That is, if the part
    which is not severed can meaningfully exist without the severed part.)

    Sometimes the valid and invalid parts of the Act are so mixed up that they cannot be separated
    from each other. In such cases, the entire Act will be invalid.

    DOCTRINE OF ECLIPSE

    All laws in force in India before the commencement of the Constitution shall be void in so far
    they are inconsistent with the provisions of the Constitution.

    Any law existing before the commencement of the Constitution and inconsistent with the
    provision of Constitution becomes inoperative on commencement of Constitution.

    But the law does not become dead.

    list][*]It is overshadowed by Fundamental Rights.[/list]

    The law remains a valid law in order to determine any question of law incurred before
    commencement of the Constitution.

    An existing law only becomes eclipsed to the extend it comes under the shadow of the FR.

    DOCTRINE OF WAIVER

    Waiver means a document that records the waiving of a legal right.

    Article 14 provides that the FR cannot be waived by any person.

    The Supreme Court shall see that the FR are enforced evenif one might have waived it.

    In the case of Basheshar Nath Vs CIT, it was held that the FR cannot be waived.

    The Doctrine of Eclipse says that any law inconsistent with Fundamental
    Rights is not invalid. It is not dead totally but overshadowed by the fundamental
    right. The inconsistency (conflict) can be removed by constitutional amendment
    to the relevant fundamental right so that eclipse vanishes and the entire law
    becomes valid.

    doctrine of eclipse (Constitution law-1)


    This doctrine is applicable to pre-existing laws only. It implies that an existing law which violates
    fundamental right is not dead or void per-se but only becomes unenforceable. "It is over
    shadowed or eclipsed by the fundamental rights and remains dormant but it is not dead." If by
    subsequent amendment fundamental rights are amended in such a way as to give way to these
    laws, then these laws will again become active.

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