Indian Constitution, Fundamental Rights,
Art. 13 – Rule of Severability
Rule of Severability
According to Art. 13(1) and 13 (2), any part of a ‘law’ which is inconsistent with the provisions of Part III of the Constitution shall be declared void to the extent of such inconsistency.
The doctrine of severability lays down that, if the valid sections of a law can be severed from the void sections, and if such valid sections can be considered to form an independent stature, these sections will remain valid.
The Supreme Court summarises the rules relating to doctrine of severability as follows:
1. The intention of the legislature is a factor-whether the legislature enacted that law knowing fully well that the rest of the statute is invalid-to determine whether valid parts are separable or not.
2. If valid & invalid are so inextricably mixed up the whole law is declared void.
3. If valid and invalid form part of a single scheme, the whole law is declared invalid.
4. After omitting the invalid part, if what remains is very thin and what emerges out is something different, the entire law is invalid.
Constitution. But in a number of decisions, the Supreme Court has made it clear as to what the basic structure of the Constitution is The following concepts are some of the basic structure- Supremacy of the Constitution, Republican and Democratic form of Government, Federalism, Secular character of the Constitution, Separation of powers between the three organs of the State, Judicial review, Sovereignty of the country, etc. Exercising this power, the Supreme Court struck down the amended provision of Art 368 (introduced by the 42nd Amendment Act, 1976) on the ground that it deprives the Supreme Court of the power of ‘judicial review’ a basic structure of the Constitution (Minerva Mills case in 1980 and Waman Rao vs Union of India case in 1981).
Suspension of Fundamental Rights
In the USA and Australia, the fundamental rights cannot be suspended under any circumstances. But the Constitution of India contains provisions for automatic suspension of Fundamental Rights under certain circumstances, as for e.g. during national emergency under Art. 352 (i.e. war or external aggression). The Constitution further empowers the President, under Art. 359, to suspend any or all fundamental rights by issuing a separate proclamation during a national emergency. However, the 44th Amendment Act, 1978 prohibits the suspension of Arts. 20 and 21 (protection in respect of conviction of offences and protection of life and personal liberty respectively) even during a national emergency.
Classification of Fundamental Rights
There are six groups of Fundamental Rights;
1. Right to equality (Arts. 14-18)
2. Right to freedom (Arts. 19-22)
3. Right against exploitation (Arts. 23-24)
4. Right to Freedom of Religion (Arts. 25-28)
5. Cultural and Educational Rights (Arts. 29-30)
6. Right to Constitutional Remedies (Art. 32)
Fundamental Rights exclusive to citizens
1. Art. 15. Prohibition of discrimination only on grounds of religion, race, caste, sex or place of birth.
2. Art. 16. Equality of opportunity in matters of public employment.
3. Art 19. Protection of certain rights, regarding freedom of speech etc.
4. Art. 30. Right of minorities to establish and administer educational institutions.
Fundamental Rights available to any person on the soil of India
(except the enemy aliens)
1. Art. 14. Equality before law and equal protection of law.
2. Art. 20. Protection in respect of conviction for offences.
Doctrine of Eclipse
As per Art. 13(1) of the Constitution, all laws enforced in India immediately before the commencement of the Constitution, in so far as they are inconsistent with any or all the fundamental rights shall be void to the extent of such inconsistency. The Supreme Court in the Bikaji Narain vs the State of Madhya Pradesh (1955) case propounded the ‘doctrine of eclipse’ and clarified that any such law is not dead altogether. It is, in fact, overshadowed by the fundamental rights and remains dormant.
It is a good law when a question arises for the determination of rights and obligations incurred before the commencement of the Constitution, and also for the determination of the rights of persons who have not been given fundamental rights under the Constitution. When the shadow cast by the fundamental rights is removed by a subsequent amendment, the eclipsed parts of such a law get revised and effective again.
Earlier, the Supreme Court stated that the doctrine of eclipse was applicable to pre-Constitutional laws only. However, in the State of Gujarat vs Shri Ambika Mills case (1974), the court stated that the doctrine can be extended to the post-Constitutional laws as well.
3. Art. 21. Protection of life and personal liberty.
4. Art. 23. Prohibition of traffic in human beings and forced labour.
5. Art. 25. Freedom of religion.
6. Art. 27. Freedom as to payment of taxes for promotion of any particular religion.
