State - Article 12
State - Article 12
State - Article 12
Article -12
Article - 12
In context of Article 12 :
Court
Held: ejusdem generis rule could not be applied
Krishna Iyer.
It was held that Bharat Petroleum is a Government
Sc 276)
Food Corporation of India in case of Workmen, FCT
The doctrine of severability means severing part of a statute which is inconsistent with any of
the constitutional provisions and particularly the provisions contained under the chapter of
fundamental rights in the Indian Constitution. The other part of the severed statute is to
remain valid.
The Supreme Court of India has considered the doctrine of severability in various cases such
as the A.K. Gopalans Case (AIR 1950 SC 27)
wheresection14ofpreventiondetentionAct,wasfoundouttobeinviolationofArticle14of
theconstitution.ItwasheldbytheApexcourtthatitissection14oftheactwhichistobe
struckdownnottheactasawhole.Itwasalsoheldthattheomissionofsection14oftheact
willnotchangetheobjectoftheactandhenceitisseverable.
Doctrine of Severability
The apex court of India, has summarized the rules relating to doctrine of severability as
follows:
The intention of the legislature is to enacted that law, knowing full well that the rest of the
statute is invalid - to determine whether valid parts are separable or not.
If valid and invalid are so inextricably mixed up, the whole law is declared valid.
If valid and invalid form part of a single scheme, the whole law is declared invalid.
After omitting, the invalid part, if what remain is very thin and what emerges out is
something different, then the entire law is declared invalid.
Doctrine of Eclipse
The Doctrine of Eclipse in constitutional law stands for over-shadowing any provision of a statute by the
fundamental rights contained in Part-III of the Indian Constitution.
In 1955, Supreme Court of India in the case of B. Narain vs. the State of MP has introduced the Doctrine of
Eclipse and stated that if any law is not consistent with any provision of the fundamental right then such law
would be overshadowed by the fundamental right and it will remain dormant but it will no to be dead
altogether.
This dormant statute whole or any of its part will become operative as a valid law when the shadow cast by the
fundamental right is removed by a subsequent amendment.
The Constitution of India in Article 13(1) states that all laws enforced in India immediately before the
commencement of the constitution, in so far as they are inconsistent with any or all fundamental rights shall be
valid to the extent of such inconsistency.
The Supreme Court of India in its earlier decisions had applied the doctrine of eclipse only to pre-
constitutional laws but later on in the case of the state of Gujarat vs. Shri Ambika Mills (1974). It stated that the
doctrine can be extended to the post constitutional laws as well
Doctrine of Eclipse
The Doctrine of Eclipse means any law inconsistent with Fundamental Rights is not
invalid. It is not dead totally but overshadowed by the Fundamental Rights. The
inconsistency can be removed by constitutional amendment to the relevant fundamental right
so that eclipse vanishes and the entire law becomes valid.
When a Court strikes a part of law, it becomes unenforceable. Hence, an 'eclipse' is said to be
cast on it. The law just becomes invalid but continues to exist. The eclipse is removed when
another (probably a higher level court) makes the law valid again or an amendment is
brought to it by way of Legislation.
TheSupreme court of India, in P Ratinam case, has held Section 309 Indian Penal
Code unconstitutional. Hence, the section was under eclipse. However, a constitutional
bench in Gian Kaur case reversed this decision and held the section as constitutional
whereby the eclipse was removed and it because operable again.
Doctrine of Waiver