Article 13 of the Indian constitution

Article 13 of the Indian constitution|| Doctrine of Severability|| Doctrine of Eclipse

When we were making our constitution, we already had a lot of nations as example, which adopted democratic and humanitarian concept. So our founding fathers endeavoured to formulate something which reflects multiple things like rights of minority, principle of UDHR, our struggle for independence and what not. Therefore, while making the constitution,part III was discussed for 38 days.

Part III exists with the objective of ; freedoms should be protected against state’s arbitrary invasion. So this means that state’s actions should be judged on the basis of their impact; freedoms of the people. This entire concept is your Article 13. Basically Article 13 deals with 4 principles relating to Fundamental Rights.

First thing that you should have a clarity about what is Fundamental Rights, since when the fundament right have existed. Fundamental Rights have existed since the time our present constitution has existed i.e. 26th January, 1950. Fundamental rights became operative from and on this date only. 

Article 13 (1) deals with Pre Constitutional laws.  There were many different laws that were present before constitution came into being, and remained in effect even after that. Article 13 provides that those laws (existing prior to constitution) which are consistent with fundamental rights will remain valid. 

Now lets understand this with an example. There was an education Act of 1930 which had many clauses which dealt with subjects like appointment of chairman, what will be the amount of fund that will be allocated, what will be the age group of the children. Among other things, there was this one clause which said kids from a certain caste shall not be admitted in the school. 

Now since 1950, this clause stands in contravention of the fundamental rights. While applying clause 1 in the same example,we can say that since this clause is against the fundamental rights, it would become void. 

For more clarity on this concept, lets have a look on the two doctrines, which are related to Article 13 i.e. Doctrine of Severability and Doctrine of Eclipse. 

The first doctrine is doctrine of Severability or separability, which means to separate. In simple language, you have to use a filter for all pre constitutional laws, i.e. if it respects fundamental rights or not. All the laws which pass successfully through this filter are valid. The laws which cannot pass have to be separated. This is your doctrine of severability. 

A very important case for doctrine of severability is A.K.Gopalan v. state of Madras. In this, section 14 of the Preventive Detention Act was challenged. According to section 14, if any person is detained under this act, he cannot disclose grounds of detention in the court. So section 14 was against the fundamental rights. If you apply doctrine of severability here and filter out this Act, only section 14 of the act was not respecting fundamental rights.

So according to doctrine of separation, if we filter out Preventive Detention Act only section 14 is inconsistent with fundamental rights. So we will minus only this provision from the act, and the remaining act shall remain valid. Simply doctrine of separation means to filter out, to check all the acts. All those laws which respect fundamental rights shall be valid. All those which are inconsistent with fundamental rights shall become invalid. 

The other doctrine of Article 13 is Doctrine of Eclipse. Eclipse means to hide. Lets understand it through a case. Eclipse means to shadow something, to hide. Like there are 3 kinds of volcano's, sleeping, active and dead, section 14 of the Preventive Detention Act was not a dead section. But just a sleeping section. Lets check this case to further understand how doctrine of eclipse functions. 

In case of Bhikhaji v. State of M.P., Berar MV Act was challenged. There were certain sections in this Act which empowered the state government to transfer the ownership of all of the motor business to itself. After 1950, all those provisions became violate of Article 19. So what would happen now is, we will filter out the whole Act first, and remove all those sections which are inconsistent with Fundamental rights. Then we will apply doctrine of eclipse, we will say that fundamental rights will prevail over these sections. Meaning that all these sections become inoperative. 

What happened next is that Article 19 was amended and government was authorised to monopolise certain businesses. So these sections which were inoperative because of section 19, will now become active. So basically, doctrine of severability says that all the pre existing laws shall be filtered out with respect to fundamental rights. All those laws which respect fundamental rights shall become valid. 

Now come to the next step i.e. doctrine of Eclipse, now all those laws which cannot pass this filter, which were separated which are invalid or inconsistent with fundamental rights, shall be shadowed by fundamental rights. Fundamental rights would eclipse them, hide them. Meaning that they shall not cease to exist,but only become inoperative. If any amendment takes place in future and all those fundamental rights become consistent with fundamental rights, they will again become active.

 So Article 13 (1) deals with pre-constitutional laws meaning the laws which existed before the constitution of India came into existence. If such laws are against fundamental rights,they shall become invalid. Now the extent to which they shall remain invalid shall be determined by application of 2 doctrines viz. Doctrine of Severability & Doctrine of Eclipse. 

Article 13 (2) talks about post constitutional laws, meaning the laws that came into existence after Indian constitution did. The state is prohibited. The state cannot make such laws which are against the fundamental rights. If such inconsistent laws are made, they shall be void. To what extent they would be void, shall be defined by application off these doctrines. 

There were a lot of twists in Article 13 (2) which were settled in State of Gujarat v. Ambica Mills. In this case, a certain labour welfare fund was challenged. It contained certain questions which were against fundamental rights. Now it was clear that after constitution came into effect, state did not have power to pass a law which is against fundamental rights. The question in this case was that, fundamental rights are available to citizens. What about non-citizens and companies? In this case, the respondent was a company,who was not granted the fundamental rights. In respect of that, would this act be valid or not? The supreme court said because the fundamental rights are not granted to companies, these sections will still, be operative for non-citizens. 

So basically 1st, state is prohibited from making any laws which are against the fundamental rights. 

2nd, even if such a law is made, it shall not be applicable on the citizens. But all those categories of parties which have not been granted fundamental rights like companies, non-citizens, for them, that piece of legislation is still operative. That is not void, that is valid. 

I hope you are clear with article 13 (1) & (2). If you still have any doubts leave a comment i will cover it in my next article.