Article 13

Dr Avinash Bhagi
Assistant Professor of Law
Gujarat National Law University
 Summary
1. Nature of Article 13
• Keshavan Madhava Menon v. State of Bombay, AIR 1951SC128
• Nature of Article 13(1)-Prospective or retrospective.
• Are these pre constitutional laws becomes void-ab-initio?
• Whether such inconsistent laws were wiped off or obliterated from the statute book?
2. Doctrine of Eclipse
• Bhikaji v. State of Madhya Pradesh , AIR 1955 SC 781
• What was the effect of the Constitution Amendment of 1951 on the law of 1947?
3. Does Doctrine of Eclipse applies to Post Constitution Law?
4. Does an unconstitutional law remain operative as regards non-citizens?
• Bhikaji v. State of Madhya Pradesh , AIR 1955 SC 781
• Deep Chand v State of U.P.,AIR 1959 SC 64
• Mahendra Lal Jaini v. State of U.P, AIR 1963 SC 1019
• State of Gujarat v. Ambica Mills, AIR 1974 SC 1300 (7 Judges)
• Dularey Lodh v. The Addl. District Judge, 3 May, 1984
• K.K. Poonacha v. State of Karnataka, 2010
5. Does the Void post-Constitutional revives automatically as soon as it is placed in the IX schedule?
• Jagannath v. Authorised Officer, 1972
6. Is their any distinction between unconstitutionality owing to contravention of F.Rs and lack of legislative competence?
• Venkararam Ayyar J, in Behram Case (1955)
• Overruled by the SC in Sundararmier’s (Mahajan) case (1958).
• The above view was affirmed by the SC in Deep Chand (1959) and by a Unanimous judgement in Mahendra Lal Jaini, 1963 case.
• Seervai supported Behram’s view which was countered by D.D.Basu in his book
7. Exceptions to Article 13(2)
• Article 31A
• Article 31B
• Article 31C
8. Doctrine of Severability
• Kihota Hollohn v. Zachilhu, AIR 1993 SC 412
• R.M.D.C v Union of India, AIR 1957 SC628
9. Grounds to determine the validity of the Statute
 Article 13:- Laws inconsistent with or in derogation of the
fundamental rights.

• Clause (1) Pre- Constitution Laws

• Clause (2) Post Constitution law
• Clause (3) Definition of Law
• Clause (4) Constitutional Amendment

• Clause 4 was added by 24th Constitutional

Amendment.
Clause 1:- Pre-Constitutional Law
• 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.

• Clause 1 deals with pre-Constitution or existing laws, i.e.,

laws which were in force immediately before the
commencement of the constitution.

• Article 372:-All laws in force in India before the

commencement of the Constitution shall continue in force
until altered or repealed or amended by a competent
legislature or other competent authority.
 Keshavan Madhava Menon v. State of Bombay
AIR 1951SC128
1. S.K. Das
2. Harilal Jekisundas Kania, C.J.,
3. N. Chandrasekhara Aiyar, ,
4. M. Patanjali Sastri,
5. Mehr Chand Mahajan ,Separate but concurrent opinion
6. Sir Saiyid Fazl Ali, JJ.Dissenting judge
7. B.K. Mukherjea, Agreed with what Fazl Ali said
 Facts
• Keshavan Madhava Menon (Petitioner) was prosecuted for having
published, in September 1949, a pamphlet without the authority required by
Sec.15(1) of the Indian Press (Emergency Powers) Act, 1931.

• During the pendency of the criminal proceedings the Constitution came

into force.

• The Petitioner approach the High Court under Article 228 challenging the
validity of Ss.15(1) and 18(1) of the Act on the ground of violation of his
Fundamental Rights under Article 19(1)(a).

• The High Court held that

• proceedings under the Indian Press (Emergency Powers) Act, 1931, which
were pending at the date of the commencement of the Constitution were
not affected, even if the Act were inconsistent with the fundamental rights
conferred by article 19 (1)(a).
• The petitioner filed an appeal before the Supreme Court on the strength of a
certificate granted by the High Court under article 132 (1) of the
Constitution.
 Keshavan Madhava Menon v. State of Bombay, AIR 1951SC128

• APPELLANTS CONTENTION

• After the Constitution came into force, the law becomes void
under Article 19(1)(a).
• The act was inconsistent with the fundamental rights conferred
by the Constitution and therefore it had become void under
Article 13(1) after January 26, 1950, and the proceeding cannot
be continued.

• QUESTION BEFORE THE SUPREME COURT

• Whether a prosecution commenced before the commencement

of the Constitution could be continued after the Constitution
came into force as the Act in question there became void as
violating Article 19 (1) (a) and 19 (2).
 Keshavan Madhava Menon v. State of Bombay, AIR 1951SC128

Article 13(1)
• Answer depends upon the following sub-issues:

• Nature of Article 13(1)-Prospective or

retrospective.
• Are these pre constitutional laws becomes
void-ab-initio?
• Whether such inconsistent laws were wiped off
or obliterated from the statute book?
 Keshavan Madhava Menon v. State of Bombay
AIR 1951SC128
• NATURE OF 13(1) SUPREME COURT HELD:-

• Question involved the construction of Article 13(1).

• Every statute is prima-facie prospective unless it is expressly
or by necessary implication made to have retrospective
operation; and this rule of interpretation is equally applicable
to the Constitution.
• The language of Article 13(1), far from indicating any
intention to give it retrospective operation.
• As the fundamental rights became operative only from 26th
January,1950, the question of the ‘inconsistency’ of existing
laws with those rights, which is referred to in Article 13(1),
must necessarily arise on and from the date those rights
came into being.
• It must, therefore , follow that Article 13(1) can have no
retrospective effect but is wholly prospective in its operation.
 Keshavan Madhava Menon v. State of Bombay
AIR 1951SC128
• The Supreme Court held that:
• The prosecution could be continued on the ground that the
provisions of the Constitution including Article 13 (1) were
not retrospective.
• “As the Fundamental Rights became operative only on and
from the date of the Constitution, the question of the
inconsistency of the existing laws with those rights must
arise from the date those rights came into being. The
voidness of the existing law is limited to the future exercise
of fundamental rights. Article 13(1) cannot be read as
obliterating the entire operation of the inconsistent laws, or
to wipe them out altogether from the statute book, for to do
so will be to give them retrospective effect which , we have
said, they do not possess.”
 Keshavan Madhava Menon v. State of Bombay
AIR 1951SC128

• Article 13(1)does not in terms make the existing laws which

are inconsistent with the fundamental rights void ab initio
for all purposes but merely void to the extent of their
inconsistency.

• There is no fundamental right that a person shall not be

prosecuted and punished for an offence committed before
the Constitution came into force.

• Therefore, proceedings were not affected.

• Cl (1)- the Constitution is not retrospective effect, following important consequences
could be drawn:
– 1. existing laws are not void-ab- initio
– 2. Becomes void only with effect from 26 January 1950
– 3. Effect of Article 13(1) is not to obliterate the inconsistent pre-constitution law
from the statute book for all the times or for all purposes or for all people.- Sagir
Ahmed
Effect of the above points:
Inconsistent law remains good , even after the commencement of the constitution, as
regards persons who have not been given FRs by the Court
If any subsequent time of time, the inconsistent provision is amended so as to remove its
inconsistency with the FRs, the amended provision cannot be challenged on the
ground that the provision had become dead at the time at the commencement of the
Constitution and cannot be revived by the amendment.
Dissenting Opinion-Fazl Ali & Mukherjee,JJ.
• Para 19. There can be no doubt that article13(1) will have no
retrospective operation, and transactions which are past and
closed, and rights which have already vested, will remain
untouched.
• But with regard to inchoate matters which were still not
determined when the Constitution came into force, and as
regards proceedings whether not yet begun, or pending at the
time of the enforcement of the Constitution and not yet
prosecuted to a final judgment, the very serious question arises
as to whether a law which has been declared by the
Constitution to be completely ineffectual can yet be applied. On
principle and on good authority, the answer to this question
would appear to me to be that the law having ceased to be
effectual can no longer be applied.
 Dissenting Opinion-Fazl Ali & Mukherjee,JJ.

• Para 20- In my opinion, to argue on those

lines is to overlook what has been the
accepted law for centuries, namely, that when
a law is treated as dead, transactions which
are past and closed cannot be revived and
actions which were commenced, prosecuted
and concluded whilst the law was operative
cannot be reopened.
 Dissenting Opinion-Fazl Ali & Mukherjee,JJ.

• 22. I think I should at this state deal briefly with two points which were raised in the course
of the arguments in support of the opposite view. It was urged in the first place that
without there being a saving clause to govern article 13(1), it can be so construed as
to permit offences committed prior to the 26th January, 1950, to be punished. The
argument has been put forward more or less in the following form. The law which is said
to be in conflict with the fundamental rights was a good law until the 25th January, and,
since article 13(1) is to be construed prospectively, and not retrospectively, every act
constituting an offence under the old law remains an offence and can be punished even
after the 26th January. It seems to me that the same argument could be urged with
reference to matters which constituted offences under a repealed Act or a
temporary Act which has expired.(My views:No, as repealed act is death , no more, removed
from the books, death for all the times, but pre-constitutional law not death for all the times, not removed
or obliterated from the books) But such an argument has never succeeded. The real question
is whether a person who has not been convicted before the Act has ceased to exist
or ceased to be effectual can still be prosecuted under such an Act. The answer to
this question has always been in the negative, and I do not see why a different
answer should be given in the case of an Act which has been come void, i.e., which
has become so ineffectual that it cannot be cured.
 Dissenting Opinion-Fazl Ali & Mukherjee,JJ.

• 24. In the present case, we have to look at the state of the law
at the time when the question arises as to whether a person
has committed any offence. If we find that the law which
made the act an offence has become completely ineffectual
and nugatory, then neither can a charge be framed nor can the
accused person be convicted.

• In my opinion, if the assumption on which the High Court has

proceeded is correct, the appellant is entitled to a declaration
that he cannot be convicted for the offence of which he is
accused.
 Bhikaji Narain Dhakras
Vs.
The State of Madhya Pradesh,
AIR1955SC781

Sudhi Ranjan Das, Acting C.J., N.H. Bhagwati, T.L. Venkatarama Aiyyar,

Syed Jaffer Imam and N. Chandrasekhara Aiyar, JJ .

• The (Bhikaji)petitioners were carrying business as stage
carriage operator for a considerable number of years.

• The permit was granted u/s. 58, Motor Vehicles Act, 1939 as
amended by the C. P.& Berar Motor Vehicles (Amendment)
Act, 1947 .

• Very far-reaching amendments were introduced by the C. P.

Berar Motor Vehicles (Amendment) Act, 1947 into the Motor
Vehicles Act 1939 in its application to Central provinces and
Berar.

• The Amendment Act conferred extensive powers on the

Provincial Government.
• The Government were authorized, in exercise of
these powers, not only to regulate or control the
fares or freights but also to take up the entire motor
transport business in the province and run it in
competition with and even to the exclusion of all
motor transport operators.

• These extensive powers were given to the Provincial

Government to carry out and implement the policy
of nationalization of the road transport business
adopted by the Government.
• At the date of the passing of the amending Act, there
was no such thing as fundamental rights of the
citizens and it was well within the legislative
competency of the Provincial Legislature to enact at
law.

• The amending Act was, at the date of its

passing, a perfectly valid piece of legislation.

• Then came our Constitution on 26.1.1950.

• Part III of the Constitution is headed
"Fundamental Rights" and consists of Articles 12
to 35.
• Article 19(1)(g) &(6)
• The right to practice any profession or to carry on any occupation,
trade or business conferred by Art. 19(1)(g) was controlled by cl. (6)
which, prior to its amendment to which reference will presently
be made, ran as follows :

• "(6) Nothing in sub-clause (g) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevents
the State from making any law imposing, in the interests of the
general public, reasonable restrictions on the exercise, of the
right conferred by the said sub-clause, and, in particular, nothing
in the said sub-clause shall affect the operation of any existing law in
so far as it prescribes or empowers any authority to prescribe, or
prevent the State from making any law prescribing or empowering
any authority to prescribe, the professional or technical
qualifications necessary for practising any profession or
carrying on any occupation, trade or business"
• The new provisions introduced by the Act authorized the
Provincial Government to exclude all private motor transport
operators from the field of transport business.

• 'Prima facie', therefore, it was an infraction of the provisions of

Art. 19(1)(g) of the Constitution and would be void under Art.
13(1), unless this invasion by the Provincial Legislature of the
fundamental right could be justified under the provisions of cl.
(6) of Art. 19 on the ground that it imposed reasonable
restrictions on the exercise of the right under Art. 19(1)(g) in the
interests of the general public.
Constitution (First Amendment) Act, 1951.
• Cause (6) of Art. 19 was amended by the Constitution (First
Amendment) Act, 1951. (18th June 1951)

• That clause, so amended, now reads as follows:

• "(6) Nothing in sub-clause (g) of the said clause shall affect
the operation of any existing law in so far as it imposes, or
prevents the State from making any law imposing, in the
interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub-clause, and, in
particular, nothing in the said sub-clause shall affect the
operation of any existing law in so far as it relates to, or
prevents the State from making any law relating to,
• (i) the professional or technical qualifications necessary for
practicing any profession or carrying on any occupation, trade
or business, or
• (ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of
citizens or otherwise".
 Bhikaji v. State of Madhya Pradesh
AIR 1955 SC 781

Respondent’s Contention

• Amending Act (C. P.& Berar Motor Vehicles (Amendment)

Act, 1947) became on and from the 26th January, 1950 void as
against the citizens to the extent of its inconsistency with the
provisions of article 19(1)(g), nevertheless, after the 18th June,
1951 when clause (6) was amended by the Constitution (First
Amendment) Act, 1951 the amending Act ceased to be
inconsistent with the fundamental right guaranteed by
article 19(1)(g) read with the amended clause (6) of that article,
because that clause, as it now stands, permits the creation by
law of State monopoly in respect, inter alia, of motor transport
business and it became operative again even as against the
citizens.
Petitioner’s Contention
• The petitioners, on the other hand, contend that
the law having become void for
unconstitutionality was dead and could not be
vitalised by a subsequent amendment of the
Constitution removing the constitutional
objection, unless it was re-enacted.
 Questions
• What was the effect of the Constitution
Amendment of 1951 on the law of 1947?

• Whether the law having became void was dead

once for all and so could not be revitalized by a
subsequent constitutional amendment without
being reenacted, or whether it was revived
automatically?
 Bhikaji v. State of Madhya Pradesh
AIR 1955 SC 781

• To solve this problem Supreme Court enunciated the doctrine

of Eclipse.
• What is DOCTRINE OF ECLIPSE?
• The doctrine of eclipse envisages that -
• A pre-constitutional law inconsistent with a Fundamental
Right was NOT WIPED OUT ALTOGETHER FROM THE
STATUTE BOOK after the commencement of the
Constitution.
• Therefore, the law in question will be regarded as having been
‘ECLIPSED’ for the time being by the relevant Fundamental
Right.
• It was in a DORMANT or MORIBUND condition for the time
being.
• SUCH A LAW WAS NOT DEAD FOR ALL PURPOSES.
 Bhikaji v. State of Madhya Pradesh
AIR 1955 SC 781

• The true position is that the impugned law became, as it were,

eclipsed, for the time being, by the fundamental right.

• The effect of the Constitution (First Amendment) Act, 1951 was to

remove the shadow and to make the impugned Act free from all
blemish or infirmity.

• If the relevant Fundamental Right is amended then the effect

would be “to remove the shadow and to make the impugned
Act free from all blemish or infirmity”.

• The law would then cease to be unconstitutional and become

revivified (rejuvenate) and enforceable.
Does an unconstitutional
law remain operative as
regards non-citizens?
Does Doctrine of Eclipse applies
to Post Constitution Law?
 Does doctrine of eclipse applies to Post Constitution Law?
• Keshavan case 1951
• Para 7:-As the fundamental rights became operative only on and from the date of
the Constitution the question of the inconsistency of the existing laws with those
rights must necessarily arise on and from the date those rights came into being. It
must follow, therefore, that article 13(1) can have no retrospective effect but is
wholly prospective in its operation. After this first point is noted, it should further
be seen that article 13(1) does not in terms make the existing laws which are
inconsistent with the fundamental rights void ab initio or for all purposes. On
the contrary, it provides that all existing laws, in so far as they are inconsistent with
the fundamental rights, shall be void to the extent of their inconsistency. They are
not void for all purposes but they are void only to the extent they come into
conflict with the fundamental rights. In other words, on and after the
commencement of the Constitution no existing law will be permitted to stand in the
way of the exercise of any of the fundamental rights. Therefore, the voidness of the
existing law is limited to the future exercise of the fundamental rights. Article 13(1)
cannot be read as obliterating the entire operation of the inconsistent laws, or to
wipe them out altogether from the statute book, for to do so will be to give them
retrospective effect which, we have said, they do not possess. Such laws exist for all
past transactions and for enforcing all rights and liabilities accrued before the date
of the Constitution.
 Does doctrine of eclipse applies to Post Constitution Law?
• Bhikaji Case
• Para 15. As explained in Keshavan Madhava Menon's case (supra) the law became void not
in toto or for all purposes or for all times or for all persons but only "to the extent of
such inconsistency" that is to say, to the extent it became inconsistent with the provisions of
Part III which conferred the fundamental rights on the citizens. It did not become void
independently of the existence of the rights guaranteed by Part III. …………..Such law
existed for all past transactions and for enforcement of rights and liabilities accrued before
the date of the Constitution, as was held in Keshavan Madhava Menon's case. The law
continued in force, even after the commencement of the Constitution, with respect to
persons who were not citizens and could not claim the fundamental right. ..……. The
American authorities refer only to post-Constitution laws which were inconsistent with the provisions of the Constitution. Such laws never
came to life but were still born as it were. The American authorities, therefore, cannot fully apply to pre-Constitution laws which were
perfectly valid before the Constitution. But apart from this distinction between pre-Constitution and post-Constitution laws on which,
however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. ALL
LAWS, EXISTING OR FUTURE, which are inconsistent with the provisions of Part III
of our Constitution are, by the express provision of article 13, rendered void "to the extent of
such inconsistency". Such laws were not dead for all purposes. They existed for the
purposes of pre-Constitution rights and liabilities and they remained operative, even
after the constitution, as against non-citizens.
• It is only as against the citizens that they remained in a dormant or moribund condition. In
our judgment, after the amendment of clause (6) of article 19 on the 18th June, 1951, the
impugned Act ceased to be unconstitutional and became revivified an enforceable against
citizens as well as against non-citizens.
 Does doctrine of eclipse applies to Post Constitution Law?

• The proposition was imported into Cl.(2) as well , by Das, C.J.,

in Bhikaji’s case even though the impugned Act before the
Court in that case was a pre-Constitution one:

• Para 15“ All laws, existing or future, which are inconsistent

with the provisions of Part III of our Constitution are….
rendered void ‘to the extent of inconsistency’. Such laws were
not dead for all purposes. They existed for the purposes of pre-
Constitution rights and liabilities and they remained operative
, even after the Constitution, as against non-Citizens”.

• But the extension of this doctrine to cl (2) was dissented from

by the majority in Deep Chand v. State of U.P., AIR 1959 SC
648
 Does the doctrine of eclipse apply to a post-
constitutional law?
•
•
•
U.P.Transport Service (Development) Act, 1953
Constitution Fourth Amendment
UP government issued orders prohibiting existing private bus operators from operating on the nationalised routes without providing full and adequate compensation.
Deep Chand v State of U.P.,AIR 1959 SC 648

• Supreme Court held that:

• A post constitutional law made under Article 13(2) which contravenes a
fundamental right is nullity from its inception and still-born law. It is void ab
initio.
• The doctrine of eclipse does not apply to post constitutional laws and
therefore, a subsequent constitutional amendment cannot revive it.
• Minority View
• Doctrine of eclipse is applicable even to post-Constitutional law.
 Does the doctrine of eclipse apply to a
post-constitutional law?
• Mahendra Lal Jaini v. State of U.P, AIR 1963 SC 1019

• SC approved the majority view expressed in Deep Chand’s case.

• There is a clear distinction between a pre-Constitutional law and a post-
Constitutional Law.
• The voidness of the pre-Constitutional law is not from its inception but only from
the date of the commencement of the Constitution.
• On the other hand, the voidness of a post-Constitutional law is from its very
inception and such a law cannot therefore exist for any purpose.
• The law being still-born and void ab initio, a subsequent amendment of the
Constitution removing the ground of inconsistency cannot revive it because what
is dead cannot be revivied.
• The doctrine of eclipse will thus apply only to pre-Constitutional laws which are
governed by Article 13(1) and not to post-Constitutional laws governed by Article
13(2).
 Does the doctrine of eclipse apply to
a post-constitutional law?
• State of Gujarat v. Ambica Mills, AIR 1974 SC 1300 (7 Judges)
• Supreme Court modified its view 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.
• The doctrine of absolute is not a universal rule and there are
many exceptions to it.
• A post –Constitutional law which takes away or abridges the
right conferred by Article 19 will be operative as regards to non-
citizens because fundamental rights are not available to non-
citizens.
• Such a law will become void or inoperative only against
citizens because fundamental rights are conferred on them.
 Does the doctrine of eclipse apply to a post-
constitutional law?
• K.K. Poonacha vs State of Karnataka & Ors, 2010
• The cases already considered supra clearly establish that a law,
whether pre-Constitution or post-Constitution, would be void
and nugatory insofar as it infringed the fundamental rights.
• It follows from the premises that a law made in derogation or in
excess of that power would be ab initio void wholly or to the extent
of the contravention as the case may be; and
• the doctrine of eclipse can be invoked only in the case of a law valid
when made, but a shadow is cast on it by supervening constitutional
inconsistency or supervening existing statutory inconsistency; when
the shadow is removed, the impugned Act is free from all blemish or
infirmity.
Does the doctrine of eclipse apply to a post-
constitutional law?

• The Constitution Bench (Mahendra Law Jaini Case) of this

Court reviewed various precedents and observed that the
doctrine of eclipse will apply to pre-Constitution laws
which are governed by Article 13(1) and would not apply to
post-Constitution laws which are governed by Article 13(2).

• The Court rejected the argument that there should be no

difference in the matter of the application of doctrine of
eclipse to both the clauses of Article 13.
 Does the doctrine of eclipse apply to a post-
constitutional law?
• The legislative power of Parliament and the legislatures of
States under Article 245 is subject to the other provisions of
the Constitution and therefore subject to Article 13(2), which
specifically prohibits the State from making any law taking
away or abridging the fundamental rights.

• Therefore, it seems to us that the prohibition contained in

Article 13(2) makes the State as much incompetent to make a
law taking away or abridging the fundamental rights as it
would be where law is made against the distribution of
powers contained in the Seventh Schedule to the Constitution
between Parliament and the legislature of a State.
• Is their any distinction between unconstitutionality owing to
contravention of F.Rs and lack of legislative competence?

• Venkararam Ayyar J, in Behram Case (1955)

• Overruled by the SC in Sundararmier’s (Mahajan) case
(1958).
• The above view was affirmed by the SC in Deep Chand
(1959) and by a Unanimous judgement in Mahendra Lal
Jaini, 1963 case.
• Seervai supported Behram’s view which was countered by
D.D.Basu in his book.
 Law

Unconstitutional

Lack of Legislative Competence Contravention of Fundamental

Rights

Lack of legislative competence goes to Contravention of FRs does not affect

the root of the legislation and renders the the powers of the legislature to make
law void ab initio, so that nothing such law, but only effects the
happening thereafter can revive the dead
enforceability of such law, so that, if at
law, e.g., if the offending legislature
subsequently acquires legislative power
any subsequent point of time the FR in
over the subject matter in question by an question is removed by a Constitutional
amendment of the question. Amendment, the offending law would
be revived.

Accoridng to Venkataram Ayer,J., “While a statute passed by a legislature which had no

competence cannot acquire validity when the legislature subsequently acquires competence, a
statute which was within the competence of the legislature at the time of its enactment but
which infringes a constitutional prohibition could be enforced proprio vigore when once the
prohibition is removed.
 Overruled by the SC in Sundararmier’s case (1958).
(Mahajan’J.)
• “we think that it is not a correct proposition that constitutional provisions in Part III of our
Constitution merely operate as a check on the exercise of legislative power.
• It is axiomatic that when the law-making power of the State is restricted by a written
Fundamental Law, then any law enacted and apposed to the fundamental right is in excess of
the legislative authority and is thus a nullity.
• Both of these declarations of unconstitutionality go to the root of the power itself and there
is no real distinction between them.
• They represent but two aspects of want of legislative power.
• The legislative power of the Parliament and the State Legislatures as conferred by Article 245
and 246 stands curtailed by the FRs chapter.
• A mere reference to the provisions of Article 13(2) and Article 245 & 246 is sufficient to
indicate that there is no competency in Parliament or a State Legislature to make a law which
comes into clash with Part III of the Constitution after the coming into force of the
Constitution.
• The authority thus conferred by Article 245 and 246 to make laws subject wise in the
different legislature is qualified by the declaration made in Article 13(2). The power can only
exercised subject to the prohibition contained in Article 13(2).
 Exceptions to Article 13(2)

1. Article 31A
2. Article 31B
Saves all acts and Regulations specified in the Ninth Schedule –
even if they or any provisions of the Acts or regulations are
inconsistent with or take away or abridge any of the Fundamental
Rights.
• Waman Rao v. UOI (1980) 3 SCC 587
This protection is available only to those Act and Regulations inserted before the date of the
Judgement in Keshvananda Bharati case.
• This view has been authoritatively confirmed by a NINE Judge Bench in
I.R.Coelho v. State of T.N, (2007) 2 SCC 1
• IX schedule-Jagannath v. Authorised Officer, 1972
3. Article 31-C
• Inserted by 25th Amendment Act
• Amended by 42nd Amendment Act, 1976- Struck down by Minerva Mills Case
Doctrine of Severability
 Meaning
• The doctrine of severability means that when some particular provision of a
statute offends against a constitutional limitation, but that provision is severable
from the rest of the statute, only that offending provision will be declared void
by the court and not the entire statute.

• The meaning of this doctrine is that the portion of the statute which does not
infringe the constitutional restriction and is separable, is to be saved.

• It has its foundation in equity and prudence and in the process of judicial review
, the courts try to save those portions of the statute which are severable and are
found to be unaffected with constitutional vires.
• The American doctrine of severability is explained in this way:
• “If a statute is constitutional in part and unconstitutional in part and the two
parts are separable and independent, the constitutional part will be given effect,
otherwise the whole statute will be declared invalid.”
 Meaning
• According to Article 13,
• A law is void only “to the extent of the inconsistency or
contravention” with the Fundamental Rights.
• It means- Act may not be void as a whole.
• Only a part of it may be void & if that part is severable from the rest
which is valid, then the rest may be continue to stand & remain
operative.
• The Act will then be read as if the invalid portion was not there.
• If it is not possible to separate the valid from the invalid portion ,
then the whole of the statute will have to go.
 Cases
• Kihota Hollohn v. Zachilhu, AIR 1993 SC
412
• R.M.D.C v Union of India, AIR 1957 SC628
 Grounds to determine the validity of the Statute
• 1. Legislative Competence
• 2. Territorial Jurisdiction
• 3. Consistent with the Fundamental Rights
• 4. Consistent with other provisions of the Constitution.
• Judiciary has the authority to strike down a law as
unconstitutional .

• However, with a view to ensuring that only higher courts

exercise this power, Section 113 of CPC, makes it obligatory
for a court, other than the High Court or Supreme Court to
make a reference to the High Court, if the trial court is of the
opinion that the particular act or regulation is invalid and it
has not been declared so either by the High Court to which
it is subordinate or by the Supreme Court.