INTRODUCTION
''People believe in law'' and to keep that belief, The Drafting Committee gave the concept of Fundamental Rights in Part III of the Indian Constitution. It gives liberty to the citizens of India and protects it from being infringed by the state. It also provides for the remedy if their fundamental right is violated.
• And to keep the belief of people in the State, ARTICLE 12 and 13 were introduced. ARTICLE 12 gives the definition of State and tells about the responsibility the State has towards people and their Fundamental Rights whereas ARTICLE 13 of the Indian Constitution which presents itself in FOUR PARTS makes the concept of fundamental rights more powerful and gives it a real effect.
• This ARTICLE protects the individual's Fundamental Rights by rendering any law null and void if it intervenes with liberty or is inconsistent in any way with the fundamental right of the person.
ARTICLE 13: Laws Inconsistent with or in Derogation of the Fundamental Rights:-
ARTICLE 13(1): Pre Constitution Laws:
• 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.
ARTICLE 13(2): Post Constitution Laws:
• The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
ARTICLE 13(3): In this article, unless the context otherwise requires,-
What is law :
(a)-'law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b)-'laws in force' includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
ARTICLE 13(4):
• Nothing in this article shall apply to any amendment of this Constitution made under article 368.
( But after the case of Kesavananda Bharti v. Union of India , Basic Structure Doctrine came in existence , It was held that it shouldn't be against with Basic Structure Doctrine)
• Now if Pre Constitution Laws and Post Constitution Laws are against Part III of Indian Constitution (Fundamental Rights). The Court will take following 2 DOCTRINES in consideration by using JUDICIAL REVIEW:
1. Doctrine Of Severability: To Seperate
• This Doctrine is also known as doctrine of seperability.
• According to ARTICLE 13, a law is void only " to the extent of the Inconsistency or contravention" with the relevant Fundamental Right. The above doctrine means that an Act may not be void as a whole; only a part of it may be void and if that part is severable from the rest which is valid, then the rest may continue to stand and remain operative. The Act will then be read as if the invalid portion was not there. If, however ,it is not possible to separate the valid from the invalid portion, then the whole of the statute will have to go.
√ CASE LAW: A.K. Gopalan v. State of Madras (1950)
• SECTION 14 Preventive detection act was inconsistent with Fundamental Rights, so only SECTION 14 was removed.
√ CASE LAW: The State of Bombay v. FN Balsara (1951)
•The Court declared SECTION 13(b) of the Bombay Prohibition Act of 1949 as void because it violated ARTICLE 19(1) (f) of the Constitution.
√ CASE LAW: RMDC v. Union Of India (1957)
• The Supreme Court has explained this doctrine as follows in RMDC
"When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But when the legislation falls in part within the area allotted to it and in part
outside it, it is undoubtedly void as to the latter; but does it on that become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what is invalid, and that is a question which has to be decided by the Court on a consideration of the provisions of the Act.
The Supreme Court has laid down the following propositions or nuances as regards the doctrine of Severability:
• The intention of the legislature is the determining factor.
• If the Valid and Invalid provisions cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety
• If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation.
2. Doctrine Of Eclipse: To Hide
• The prospective nature of ARTICLE 13(1) has given rise to the Doctrine of Eclipse.
• ARTICLE 13(1) talks about the pre-constitutional law as it says that the laws existing before the commencement of the constitution if found inconsistent with the provisions present in ARTICLE 13 then they will be void.
• But the Doctrine of Eclipse says that the inconsistent laws though becomes out of whack but not completely dead. It is eclipsed by the Fundamental Rights and can again be alive through some Constitutional Amendments.
• It is only applicable to citizens as non-citizens do not have Fundamental Rights so they can't challenge the validity of any law.
√ CASE LAW: Keshav Madhav Menon v. State of Bombay (1951)
• Petitioner was prosecuted Indian Press (Emergency Powers) Act, 1931 for publishing a pamphlet with no permission. This case was pending while constitution came in Force. Court held that the act is void but not retrospectively.
√ CASE LAW: Bhikaji v. State of M.P (1955)
• This doctrine was officially created in this case, Berar Motor Vehicle Act, 1947 empowered govt. to take over motor transport business, these sections became violative of ARTICLE 19, so ARTICLE 19 eclipsed these sections, later due to amendments in ARTICLE 19 and those sections were no more in violation of ARTICLE 19, so those sections will become active again
• The doctrine of eclipse declares Fundamental Rights as prospective in nature. According to Doctrine of Eclipse pre-constitutional law inconsistent with the fundamental rights are not nullity or void ab initio but only remains unenforceable i.e., remains in a dormant state.
• These dormant laws are still enforceable for past rights and duties and also valid for those who don't get fundamental rights, like some fundamental rights are not available to non-citizens (ARTICLES 15, 16, 19, 29, 30).
√ CASE LAW: State of Gujarat v. Ambica Mills (1974)
• Shri Ambica Mills was a company which filed the petition to declare certain provisions of Bombay Labour Welfare Fund Act, 1953 as unconstitutional as it is violative of 19(1)(f) 'right to property', High court ruled in favour of Ambica Mills, but the Supreme Court held that ARTICLE 19 is only available to citizens and Ambica Mill is not a citizen. So, Doctrine of eclipse won't apply to the disputed law in regard to Ambica Mills.
WAIVER OF FUNDAMENTAL RIGHTS
• This doctrine considers that a person is his own judge and will choose what is best for him. The doctrine of waiver says that a person can put aside his right if he wants to. It only talks about individual rights and not the rights of the public in general.
√ CASE LAW : Basheshar Nath v. the Commissioner of Income Tax (1958)
• The court dealt with the issue of whether Fundamental Rights can be waived or not. The Court firstly referred to the judgment of Behram Khurshed Pesikaka v. State of Bombay, where the Court had indicated a preference for the American position of DOCTRINE OF WAIVER. The Court in Behram Khurshed had held that if the Fundamental Rights are for the individual's benefit, then they can be waived but the Fundamental Rights aimed at serving the interest of the society cannot be waived.
• However, in this case, the court held that the American position could not be applied in India. The social economic and political scenario in the United States is very different from the social political and economic scenario prevailing in India. To determine the scope of applicability of the doctrine of waiver, the nature of the fundamental rights and the effect of the violation of these rights on the individual as well as on the society has to be considered.
• Fundamental Rights in India are meant for the welfare of society and not for securing individual benefit. These rights provide social, political and economic rights to the people.
• However, Justice S.K. Das gave the dissenting opinion. He believed that if the right is meant for the benefit of the individual then the individual may waive the right. Once the right is waived, the individual will have no right to plead that his FUNDAMENTAL RIGHTS has been abridged.
√ CASE LAW: Olga Tellis v. Bombay Municipal Corporation
• Court asserted that "the high purpose which the 'constitution seeks to achieve by conferment of Fundamental Rights is not only to benefit the individual but to secure the larger interests of the community'. Therefore, even if a person says, either under mistake of law or otherwise, that he would not enforce any particular Fundamental Right, it cannot create an estoppel against him. "Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all powerful state could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate benefits."
THE DOCTRINE OF LIFTING THE VEIL
• An individual when in a corporation if does a fraud or a scam then he thinks of hiding behind the real beneficiaries of the company but he can't because the corporate veil can be lifted by the government by bringing in the doctrine of lifting the veil.
• The government made a clear extinction between the partnership and shareholders. In a partnership where the owner can be held responsible, the shareholder can not.
CONCLUSION:
• "To no one should the right and justice be delayed, sold or denied" -promises our constitution but still injustice is been seen.
• Fundamental rights were not so fundamental before the ADM Jabalpur Case but many changes have been noticed since then but there are many to still strive for.
• Whether it is the prison reforms that are to be changed and the system is to be made more transparent or the providing of rights against private individuals and not only the state, the legal mechanism to carry out the functioning of Article 13 which means the whole definition of law has to be armed till teeth.
• In the absence of personal laws being included within ARTICLE 13, Article 13(1) runs the risk of becoming redundant since most of the pre-Constitutional laws have undergone the test of Part III. However, several personal laws of the pre-constitution era continue to remain operative without being subjected to judicial review. The true purpose of ARTICLE 13 can be fulfilled only through a wide and flexible interpretation.
Also Read :
Article 12 of Indian Constitution
Article 14 Of Indian Constitution
