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consti

1. ARTICLE : 13

2. Art.13. ( 1) 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. (2) 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 .

3. (3) In this article, unless the context otherwise requires,— ( 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed. (Pre Constitutional Laws Defination ) 4) Nothing in this article shall apply to any amendment of this Constitution made under article 368 (24 th Amendment)

4. Acc to 13(3), all the laws which can affect the legal rights of a citizen comes under the ambit of art13(3).by laws, noti etc. generally, admim /executive orders are covered undr art 13(3) but administrative directions/instructions for guidance are not covered as enforceable legal obligations, secondly personal laws are not governed under art 13(3)

5. Prospective Or Retrospective in Operation: Keshavan Madhava Menon Vs. State of Bombay, 1951,128 The petitioner was prosecuted in 1949 for publication of a pamphlet without permission and authority as required under Press (Emergency Powers) Act, 1931. - During the pendency of the prosecution the Indian Constitution came in to force – guaranteed among other things freedom of press under Art.19(1) (a) – the petitioner filed a petition under Art.226 challenging the validity of the Act and consequent prosecution under Art.19 (1) (a) – in appeal went to Supreme Court Held, the Constitution has only prospective operation. The general rule is that all the statutes are prospective unless specifically given retrospective operation. – A law void for violating Fundamental Rights under Art.13(1) is void to the extent of inconsistency from the date of the commencement of the Constitution – It is not void ab initio .

6. A pre constitutional law is not altogether obliterated (destroy/wipe out) from the statute book. – They exist for the purpose of all transactions prior to the commencement of the constitution. As there were no fundamental rights prior to 1950, the offence committed by the person under a valid law and his prosecution for the acts committed or omitted under a valid law is perfectly valid. The court allowed the prosecution – the court felt that the impugned law need not be tested under Art. 19 (1) (a)

7. Doctrine of Eclipse

8. Whenever a law becomes void as it were for the violation of Fundamental Rights, and such unconstitutionality is removed by the subsequent amendment , facilitating the revival of that law which was void, instead of passing a new law, in such cases it is deemed that the above law was void only for a particular period of invalidity. In other words it was under eclipse during that period The questions that may arise Whether such doctrine is applicable to pre-constitutional law Whether such doctrine is applicable to post constitutional law also In Bhikaji Narain Dhakras Vs State of Madhya Pradesh, 1955,781 S-43 of Motor Vehicles Act, 1939 , Motor Vehicles (Amendment) Act of 1947 authorised the provincial Government to run in competition with the private operators the transport business. This provision was valid in 1947, but became void after the commencement of the constitution under Art.19 (1) (g)

9. The constitution was amended, and the amendment came into force on 18 th June, 1951 authorizing under Art.19(6) which stated that such monopoly by the state ‘whether to the exclusion, complete or partial of the citizens’ ie govt is now authorized to monopolise certain businesses. After the Amendment the Govt. issued notification under the impugned Act for taking over the transport. This was challenged. Court held that though the Act was void between 26 th January 1950 and 18 th June 1951, the amendment had the effect of removing the constitutional invalidity of S-43 and it is revived and comes into operation from the date of amendment. He observed, the true position is that the impugned law becomes as it were, eclipsed for the time being. The constitution (1 st Amendment ) Act,1951 was to remove shadow and make impugned Act free from all blemish and infirmity..such laws were not dead for all purposes. They existed for the purposes of pre-constitutional rights and liabilities and they remain in dormant and moribund condition

10. The judge also did not make distinction between post or pre constitutional laws. Whether Doctrine of Eclipse is applicable to Post Constitutional Laws: In Deep Chand Vs. State of UP, 1959, 648 UP transport Services (Development) Act 1953 came into force in 1955 was subject to challenge. The Act was held valid. The doctrine is not applicable to post-constitutional laws since they are invalid from the very inception because of being inconsistent with Part III. It was observed that the post constitutional laws conflicting with the fundamental rights are void ab initio, they are still born and can not be revived.

11. But there is one vital difference between pre-Constitution and post-Constitution laws in this matter. The voidness of the pre-Constitution laws is not from inception. Such voidness supervened when the Constitution came into force; and so they existed and operated for sometime and for certain purposes; the voidness of post-Constitution laws is from their very inception and they cannot therefore continue to exist for any purpose. This distinction between the voidness in one case and the voidness in the other arises from the circumstance that one is a pre-Constitution law and the other is a post-Constitution law; but the meaning of the word "void" is the same in either case, namely, that the law is ineffectual and nugatory and devoid of any legal force or binding effect.

12. State of Gujarat Vs. Ambica Mills ltd. 1974, 1300 A post-Constitution law which takes away or abridges the rights conferred by Article 19 will be operative in regard to non-citizens as it is void only to the extent of the contravention of the rights conferred on citizens, namely, those under Article 19 . When Article 13 (2) uses the expression 'void', it can only mean void as against persons whose fundamental rights are taken away or abridged by a law. The law might be 'still-born' so far as the persons' entities or denominations whose fundamental rights are taken or abridged, but there is no reason why the law should be void or 'still-born' as against those who have no fundamental rights . If a law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the voidness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all. Nor would this proposition violate any principle of equality before the law because citizens and non-citizens are not similarly situated as the citizens have certain fundamental rights which non-citizens have not.

13. Doctrine of Eclipse and Article 368 In I. C. Golaknath v. State of Punjab(1967) Kesavananda Bharti v. State of Kerela (1973)

14. ( Background- Art 31 right to prop was FR) Sajjan Singh v State of Punjab, 1963- 1 st CAA limits the validity of FRs through insertion Art 31A, 31B and modification in A19(1)(g). SC held that 1 st CAA is valid and Parliament has power to amend FRSs made u/a 368. Art 13 is applicable to ordinary laws and it does not include consti amendments. (Background: 17 th caa - 9 th schedule provide immunity to laws from judicial review) Sri Sankari Prasad Singh Deo v. Union of India, 1951- 5 judges bench- 3:2, The meaning of law under art 13 does not include a consti amendment, hence they cant be challenged under art 13. Parliam can amend FRs. CJ Gajendragadkar , If constitutional framers at the time of framing constitution wanted to save FRs from amendments, they would have expressly mentioned it.

15. Golaknath v St of Punjab, 1967 – 11 judges bench, Under A368, the power given to Parlia to amend the consti is not absolute but are subjected to limitations. The power of Judicial Review is supreme, even amendments can be challenged under art 13. Hence, Sajjan Singh and Shankari Prasad are overruled. Parliament brought art 13(4) through 24 th CAA acc to which if any amendment is brought by Parliament under art 368 then it cannot be challenged in the court of law. Kesavnanda Bharti v State of Kerela , 1973- Parl has power to amend the whole consti . But cannot amend the basic structure of the consti like Judicial review, etc. 24 th CAA is valid.

16. Doctrine of Eclipse and section 309 (attempt to suicide) Rathinam v. Union of India,1994 Maurati Shripati Dubai v. State of Maharahtra Gian Kaur v. State of Punjab,1996 Aruna Shanbagh v. Union of India, 2012 Common Cause v. Union of India, 2017

17. Doctrine of Waiver of Fundamental Rights

18. Doctrine of Waiver of Fundamental Rights: In Behram v state of Bombay ,1954, Court held that fundamental rights were not kept in the constitution merely for individual benefits. These rights were put up as a matter of public policy and therefore doctrine of waiver cannot be applied in the case of fundamental rights. A citizen cannot invite discrimination by telling the state ‘you can discriminate’ or get convicted by waiving the protection given to him under article 20 and 21. The question was fully discussed by the Supreme Court in Bashesarnath Vs. I.T. Commissioner, 1958, 149 Sections 5 and 8A of the Taxation of Income(Investigation Commission) Act, 1947 were impugned. Under that law an Investigation Officer appointed against the petitioner found huge amount of money that was concealed.

19. There upon the Commissioner threw a hint that the petitioner can enter into an agreement that he can pay the arrears of tax in installments (Sec 8A). The petitioner agreed and filed an application accordingly which was approved. Meanwhile in another similar case the petitioner instead of entering into agreement, challenged the provisions as above. In MUTHAIAH VS. IT (1956, 269) , these contentions were accepted and those sections were held unconstitutional. Hence the petitioner in the latter case need not pay the arrears whereas the petitioner in the instant case had to pay arrears of IT in view of his agreement. Treating this discriminatory, the petitioner challenged the settlement he had with IT Dept. and requested to absolve him from paying the installments. The Government on the other hand argued that the petitioner’s voluntary agreement amounts to waiver of his right to equality. Das C.J., observed that Art.14 can not be waived for it is an admonition to the state as a matter of public policy and state’s solemn obligation can not be waived by an individual.

20. The Supreme Court has also applied the similar principle Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180), wherein the pavement dwellers had, earlier, waived off their right to object to the demolition of their huts and, later, objected to the same while claiming their right under Article 21 of the Constitution. The Supreme Court stated that for fulfilling the purpose of the Preamble of the Constitution, fundamental rights have been conferred on citizens with certain rights granted to non-citizens as well, and thus, cannot be bartered away by any individual. Thus, the fundamental rights, in any case, cannot be waived off by a person as such rights have been constituted in order to safeguard interests which are protected as a matter of public policy.

21. Doctrine of Severability

22. Whenever a provision of a statute or a part thereof becomes void for violating fundamental rights the court may sustain the remaining portion of the statute leaving the invalid portion subject to certain limitations – this principle of interpretation is known as Doctrine of Severability. Art. 13 facilitates this type of interpretation. A pre-Constitutional law violating Fundamental rights would be void to the extent of inconsistency . Similarly a post- Constitutional violating Fundamental rights would be void to the extent of contravention . Such provision is also found under Art.254 where a state law is repugnant to union law under concurrent list such law would be void to the extent of repugnancy . Some times the statute itself contains severability clauses as in America and Australia. In India there is no such practice.

23. A.K. Gopalan v State of Madras. 1950,27 The Preventive Detention Act 1950, is intra vires the Constitution with the exception of S. 14 which is illegal and ultra vires. The invalidity of S. 14 does not affect that rest of the provisions in the Act. According to Sec.14 if any person is being detained under this act then he or she may not disclose the grounds of his or her detention in court of law, this particular statement is inconsistent with that of fundamental rights as per article 22 of the Indian constitution, thus if we do apply the doctrine of severability here so the whole act (preventive detention act,1950) would not be declared as void but only section 14 of the act would be declared as void as it is inconsistent with the fundamental rights.

24. The principles of Doctrine of Severability were laid in the case of R.M.D. CHAMARBAUGWALLA Vs. UNION OF INDIA, 1957, 124 . It was held in this case trade and commerce protected by Art. 19 (1) and Art. 301 are only those activities which could be regarded as lawful trading activities. As gambling, is not trade, it does not fall within the purview of those Articles. Hence as regards gambling competitions, the petitioners under Art. 32 cannot seek the protection of Art. 19 (1) (g). The Court observed that the definition of 'prize competition', in S. 2 (d) is wide and unqualified in its terms. There is nothing in the wording of it, which limits it to competitions in which success does not depend to any substantial extent on skill but on chance. However the court held that the impugned provisions, assuming that they apply by virtue of the definition in S. 2 (d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill.

25. The court observed that when a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. Following the rules of construction laid down by the American Courts where the question of severability has been the subject of consideration in numerous authorities, the court summarised as follows: - In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor . The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.

26. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. 3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme is intended to be operative as a whole , then also the invalidity of a part will result in the failure of the whole.

27. 4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; it is not the form, but the substance of the matter that is material , and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein. 6. 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.

28. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into amount the history of the legislation, its object the title and the preamble to it.

29. In State of Bombay Vs. F.N. Balsara ,1951,318, In this case, law was made on the sale, import, possession, of liquor ie The Bombay prohibition act. This state legislation incidentally encroaches upon import and export of liquor which is a subject of centre . Doctrine of pith and substance was applied and It was held that declaration that some of the provisions of the Act are invalid does not affect the validity of the Act as it remains.

30. H.R. Banthia Vs. Union of India 1970,1463 Gold Contol Act, 1968 – the whole Act was held invalid as the invalid portions are inextricably mixed Kihota Hollohan Vs. Zachilhu 1993,412 Para 7 of the Xth Schedule which provided for finality of Speakers' decision ousting the jurisdiction of the courts was held invalid. The court observed. Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable.

31. JUDICIAL REVIEW

32. Judicial Review Power of the courts, ultimately that of the supreme court to test any measure on the touch stone of the constitution and refuse to enforce such measures that go against the constitution Judicial Review is the cornerstone of constitutionalism -It keeps the creatures of the constitution in reasonable confines It makes the democracy meaningful It has dual purpose of bringing legitimacy to the system of governance and keeps the government under the check

33. USA – Judicial Review was not specifically granted in the Constitution - In Marbury Vs Madison (1803) Chief Justice Marshall observed, Certainly all those who framed the written constitutions contemplate them as forming the fundamental and paramount law of the nations, and consequently , the theory of every such government must be that an act of the legislature, repugnant to the constitution, is void …. Though there were certain flaws in the decision it laid strong foundation for judicial review and it received universal acceptance including India.

34. Judicial Review in India • In India, the judiciary is the guardian of the Indian Constitution, the democratic atmosphere and individuals’ fundamental rights. Indian judiciary is empowered with power of judicial review. The courts have power to review all legislative enactments, executive and administrative actions. • The Indian Constitution explicitly provides for judicial review through articles 13, 32, 136, 143, 226, 227 and 246. In India, Judicial review of legislative action is being done by using some basic principles of Constitutional Law i.e. doctrines of Pith and Substance, Colourable Legislation, Severability, Liberal Interpretation, Limitations of Stare Decisis, Unconstitutionality and Eclipse, and Waiver. Doctrine of Basic Structure is one of the most reliable grounds for judicial review.

35. In L. Chandra Kumar Vs Union of India, 1997, 1125 it was held that the power of judicial review over legislative action vested in the High Court under Article 226 and in Supreme Court under Art. 32 is an integral and essential feature of the Constitution, constituting part of its basic structure . So, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. Therefore, the Supreme Court declared clause 2(d) of Art. 323A and clause 3(d) of Art. 323B unconstitutional to the extent they excluded the jurisdiction of High Court and Supreme Court under Art. 226, 227, and 32 of the Indian Constitution. This was a sequel to pre existing decisions of the Supreme Court in Keshavananda Bharathi, 1973 (per Justice Khanna), 1461 and In Indira Nehru Gandhi Vs. Raj Narain , 1975,2299 – Minerva Mills v UOI, 1980.

36. In S.A. Bola Vs. B.D. Sharma ,1997,3127 Constitutional Courts alone are competent and is their primary constitutional duty to exercise the power of judicial review to pronounce upon the constitutionality of the Act, Rules and Orders. Judicial review, therefore, is the basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people's sovereign power for their protection and establishment of egalitarian social order under the rule of law… The object of judicial review is to maintain constitutionalism and to uphold the constitutionality of the legislative Acts, administrative actions and quasi-legislative orders within the confines of the Constitution, it is basically directed against the actions of the State or its instrumentalities.

37. Even though all the general principles of interpretation are applicable to constitutional interpretation as well, the judges of the supreme Court always treated constitutional interpretation differently. • In A.K.Gopalan v State of Madras, the court held that the Constitution is supreme and every statute has to be in conformity with the constitutional requirements. Moreover, it is the binding duty of the courts to decide whether any law or statute is constitutional or not. Justice Kania in Gopalan’s case observed, all though we are to interpret words of the constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and the scope of the Act we are interpreting - to remember that it is a constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be

38. Justice Bhagwati in Sampath Kumar v Union of India held that Judicial Review cannot be abrogated by the Parliament since it is essential feature of the Indian Constitution. Without the provision of judicial review, the enforcement of fundamental rights would be meaningless.

39. In I.C. Golaknath Vs State of Punjab, 1967, 1643 the court observed, there is an essential distinction between Constitution and Statutes. Comparatively speaking Constitution is permanent; it is an organic Statute; it grows by its own inherent force. The Constitutional concepts are couched in elastic terms. Courts are expected to and indeed should interpret, its terms without doing violence to the language to suit the expanding needs of the society. In M. Nagaraj and Ors. v. Union of India and Ors. 2007,71, it was held, The Constitution must be construed in wide and liberal manner so that constitutional provision does not get fossilized but remains flexible enough to meet newly emerging problems and challenges.

40. In I.R. Coelho v State of Tamil Nadu and others, AIR 2007 SC 861. The Supreme Court held that all Constitutional amendments made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic features of the Constitution enshrined under Articles 14, 19 and 21. In order to clarify the situation, the court further declared that even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would still be tested on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

41. • In famous decision of Lord Greene in Associated Provincial Picture Houses Ltd. v Wednesbury Corpn . (1947) 2 All ER 680, The court laid down “test of reasonableness” which says that administrative action is unreasonable if the action is based on wholly irrelevant material or on wholly irrelevant considerations or if the action is irrational. • The judgment also laid down the “doctrine of proportionality” as another basis for exercising judicial review. If the administrative authority awards disproportionate punishment, it becomes necessary for the judicial court to intervene. Award of punishment which is grossly disproportionate to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

42. • In Delhi Development Authority v M/s UEE Electricals Engg . Pvt. Ltd, (2004) 11 SCC 213. the Supreme Court said that illegality, irrationality, and procedural impropriety are grounds for judicial review of administrative action. Courts do not interfere in an administrative decision unless the decision is an outcome of an unfair procedure. Mere suspicion of unfairness would not be sufficient. The claimant has to prove the unfairness in the administrative action in any of its form including abuse or a misuse by the authority of its powers. Indian courts have recognized the principles of natural justice i.e rule of fair hearing and rule against bias, as a precondition for administrative adjudication. Indian judiciary has also widened the scope of these principles by making the authorities more accountable and answerable in their actions.

43. Art.13 (3) In this article, unless the context otherwise requires,— “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.

44. Gajendragadkar J in State of Bombay Vs. Narasu Appamali 1952.Bom84 observed, the framers of the Constitution wanted to leave the personal laws out side the ambit of part III of the Constitution……..they did not intend to include these personal laws with in the definition of the expression ‘ laws in force’. Ahmedabad Women Action Group (AWAG) v. Union of India AIR 1997 S C 3614 relating to the arguments of uniform civil code it was held that there was no occasion to consider whether Part III of the Constitution of India had any application to personal laws or not. Suffice it to say that we are satisfied that the arguments advanced before us as pointed out at the outset involve issues, in our opinion, to be dealt with by the legislature. In number of cases the courts were reluctant to put the personal laws to the test of constitutional law. Art. 13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.