Post-Constitutional Laws & Article 13

  1. Introduction
  2. What if the State frames any such law?
  3. Does the Doctrine of Eclipse applies post-constitution laws?
    1. Exceptions to it
  4. Doctrine of Waiver
    1. Can any citizen waive away his/her fundamental rights?
  5. Doctorine of Lifting The Veil
  6. Conclusion

We read about the pre-constitution laws and article 13 in the previous article. Now, in this article, we’ll read about the post-constitution laws with contrast to article 13.

The main objective of Article 13 is to secure the supremacy of the constitution, especially of the fundamental rights.

Clause (2) of Article 13 prohibits the state from framing any such law that abridges the fundamental rights conferred in Part III of the Indian Constitution.

What if the State frames any such law?

Article 13(2) states,

“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 contravention, be void.”

So, according to Article 13(2), even if the state makes any such law inconsistent to the fundamental rights, the law will be considered void ab initio. Such laws are considered still-born (dead by birth) laws.

The phrase “to the extent of contravention” in article 13(2) declares that if only a part, of any act made by the state, overlaps/violate the fundamental rights, then only that particular part will be declared void with the condition that the removal of the inconsistent part does not affects the basic nature and structure of the act.

You may ask:

Does the Doctrine of Eclipse applies post-constitution laws?

This question was answered in SAGEER AHMAD v. UTTAR PRADESH[1]. The court held that the doctrine of eclipse does not apply on post constitution laws because-

  • Laws inconsistent to fundamental rights are void ab initio.
  • Therefore, such laws cannot be activated by removal of constitution prohibition by subsequent constitutional amendment.

In DEEP CHAND v. STATE OF UTTAR PRADESH[2]. The Supreme Court approved the decision taken in the previous case “a post constitution law made under article 13(2) which contravenes a fundamental rights is nullity from its inception and a still born law. It is void ab initio.”

In MAHENDRA LAL JAIN v. STATE OF UTTAR PRADESH[3], the Supreme Court held that the Doctrine of Eclipse applies only to pre-constitution laws under article 13(1) and not to post-constitution laws. It is because the pre-constitution laws are void from the date of the commencement of the present constitution only, not before that. However, the post-constitution laws are void from inception. As these laws are still born, they cannot exist or activated for any purpose.

EXCEPTION:

The decision taken in the previous cases was modified in STATE OF GUJARAT v. AMBICA MILLS[4]. Some exceptions were introduced regarding inconsistent post constitution laws. The hon’ble Supreme Court explained that the-declared void laws will still be operative as regards to non-citizens because the fundamental rights are only available for citizens of the country. And, therefore, the non-citizens cannot claim any rights being violated.

However, in DULARE LODH v. IIIrd ADDITIONAL DISTRICT JUDGE, KANPUR[5], the Supreme Court applied the Doctrine of Eclipse to post-constitution law even against citizens.

DOCTRINE OF WAIVER

The term ‘waive’ means ‘to voluntarily relinquish oneself from own rights.’

Here comes a tricky question:

Can any citizen waive away his/her fundamental rights?

 American Constitution provides its citizens a right to waive but this doctrine of waiver is not applicable to the provisions incorporated in part III of the Indian Constitution.

BASHESHER NATH v. INCOME TAX COMMISSIONER[6] directly deals with the question of waiver. The hon’ble court held that “it is not open to a citizen to waive any of the fundamental right conferred by part III of the constitution.”   

In BEHRAM v. STATE OF BOMBAY[7] , the court held that it is not open to an accused person to waive or give up his/her constitutional rights and get convicted.

These rights, conferred in part III of the constitution, are not only in the individual’s interest nut also in favor of general public as a matter of public policy.

DOCTRINE OF LIFTING THE VEIL

When any act is alleged for the violation of fundamental rights, constitutional validity of the act is tested. In that process of testing, it is necessary to discover the real nature, the character and the impact of the act. In due course of decision on these facts regarding the act, the court may take into consideration, all the factors, such as, history of the legislation, the objective, the surrounding circumstances and conditions, including the mischief which is intended to suppress, the remedy for the disease which the legislation resolved to cure and the true reason for the remedy.

Lifting the veil relates to making things transparent and discovering the true nature is the basic essence of this doctrine.

CONCLUSION:

Fundamental rights are supreme. Article 13 is the base of the fundamental rights and aims to maintain supremacy of these rights. It empowers the judicial system to declare the laws unconstitutional which are inconsistent to fundamental rights. Once any article is alleged to be unconstitutional, it is important to ascertain the truth behind the facts and discover and solve the loopholes of the problems in the legal system.                                                                                                                                                                                                                                               


[1] AIR 1954 SC 728

[2] AIR 1959 SC 648

[3] AIR 1963 SC 1019

[4] AIR 1974 SC 1300

[5] AIR 1984 SC 1260

[6] AIR 1959 SC 149; see also Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180

[7] AIR 1955 SC 146

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