Tuesday, 1 March 2016

Article 13- Doctrine of Severability ,Eclipse and Waiver

Article 13 of the Constitution lays down as follows :-
(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 Part III of the Constitution shall be void to the extent of inconsistency with Part III of the Constitution.
(2) The State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause to the extent of the contravention shall be void.
(3) In this Article, unless the context otherwise requires :-
(a) `law' includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law;
(b) `law 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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this Article shall apply to any amendment of this Constitution made under Article 368.
Effect on existing laws :- Article 13(1) is prospective in nature that is, they operate from the date of the commencement of the Constitution and not retrospectively. All pre-constitution or existing laws shall be void only if they are inconsistent with the fundamental rights enshrined in Part III of the Constitution.
In Keshwa Madhava Menon v. State of Bombay, AIR 1951 SC 128 proceedings had been started against the appellant for an offence punishable u/s 18 of the Indian Press Emergency Powers Act, 1934 in respect of pamphlet published in 1949. The appellant's contention was that the Act was inconsistent with fundamental rights conferred by the Constitution and therefore it had become void u/Article 19(1) after 26th January, 1950 and the proceedings against him could not be continued. Supreme Court has held that all laws in force at the commencement of the Constitution which are inconsistent with Part-III of the Constitution, shall be void to the extent of inconsistency. Article 13(1) had no retrospective effect but only prospective in its operation.
(A) Doctrine of Severability It is not the whole Act which would be held invalid by being inconsistent with Part III of the Constitution but only such provisions of it which are violative of the fundamental rights, provided that the part which violates the fundamental rights is separable from that which does not isolate them. But if the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder the court will declare the entire Act void. This process is known as doctrine of severability or separability.
The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27 and held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective. The doctrine was applied in D.S. Nakara v. Union of India, AIR 1983 S.C. 130 where the Act remained valid while the invalid portion of it was declared invalid because it was severable from the rest of the Act. In State of Bombay v. F.N. Balsara, A.I.R. 1951 S.C. 318 it was held that the provisions of the Bombay Prohibition Act, 1949 which were declared as void did not effect the validity of the entire Act and therefore there was no necessity for declaring the entire statute as invalid.
The doctrine of severability has been elaborately considered by the Supreme Court in R.M.D.C. v. Union of India, AIR 1957 S.C. 628, and the following rules regarding the question of severability has been laid down:
(1) The intention of the legislature is the determining factor in determining whether the valid part of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from the 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 itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
(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 legislature, then also it will be rejected in its entirety.
(5) The severability of the valid and invalid provisions of a Statute does not depend on whether provisions are enacted in same section or different section, 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 provisions 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.
(7) In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and preamble of it.
(B) Doctrine of Eclipse. - The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity or void ab initio but becomes, only unenforceable i.e. remains in a moribund condition. "It is over-shadowed by the fundamental rights and remains dormant, but it is not dead." Such laws are not wiped out entirely from the statute book. They exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. It is only against the citizens that they remain in a dormant or moribund condition but they remain in operation as against non-citizens who are not entitled to fundamental rights.
For solving such a problem, Supreme Court formulated the doctrine of eclipse in Bhikhaji v. State of M.P., AIR 1955 S.C. 781. In this case the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorised the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1)(g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorise the Government to monopolise any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal.
(C) Doctrine of Waiver. - Can a person waive his fundamental right ? A reference to the doctrine of waiver was first made inBehram v. State of Bombay, AIR 1955 S.C. 123. While discussing the question of legal effect of a statute being declared unconstitutional, Justice Venkatarama Aiyer gave the opinion that a law, unconstitutional by reason of its repugnancy to a fundamental right which is enacted for the benefit of individuals and not for the benefit of the general public, is not a nullity but merely enforceable and such an unconstitutionality could be waived, in which case the law becomes unenforceable for that individual e.g. the right guaranteed under Article 19(1)(f) is for the benefit of the owners of property and when a law is found to infringe that provisions, it is open to any person whose right has been infringed to waive it, and when there is a waiver there is no legal impediment to the enforcement of the law.
The question of waiver directly arose in Bashesher Nath v. Income Tax Commissioner, AIR 1959 S.C. 149. The petitioner whose case was referred to the Income Tax Investigation Commissioner under Section 5(1) of the Act, was found to have concealed large amount of income. He thereupon agreed at a settlement in 1954 to pay Rs. 3 lacs in monthly installments by way of arrears of tax and penalty. In 1955, the Supreme Court in other cases declared Section 5(1) ultra vires Article 14. The petitioner thereupon challenged the settlement between him and the Commissioner. The main question that arose for consideration was whether or not, the assessee had waived his fundamental right under Article 14 by entering into the settlement. In this case the Supreme Court held "A large majority of our people are economically poor, educationally backward and politically not conscious of their rights. Individually or even collectively, they cannot be pitted against the State Organisations and institutions, nor can they meet them on equal terms. In such circumstances it is the duty of the court to protect their rights against themselves." In the end, the court upheld unanimously that the petitioner could not waive his rights under Article 14 of the Constitution.
Circumstances under which Fundamental Rights can be curtailed or suspended. - The fundamental rights can be suspended or curtailed in the following circumstances :
1. The Parliament can restrict or abrogate by law the fundamental rights in their application to the members of the Armed Forces, of Forces charged with the maintenance of public order with a view to ensure proper discharge of their duties and maintenance of discipline among them. (Article 33).
2. Fundamental Rights can be curtailed or restricted when Martial Law is in force in any area (Article 34).
3. During the period in which the proclamation of emergency is in operation, the rights conferred by Article 19 are suspended (Article 358). Also where a proclamation of emergency is in operation the President may, by order, declare that the right to move any court for the enforcement of such rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of rights so mentioned shall remain suspended for a period during which the proclamation of emergency is in force or for such shorter period as may be specified in the order. An order made as aforesaid may extend to the whole or any part of the territory of India. Every such order shall, as soon as be may be after it is made, be laid before each House of Parliament. (Article 359).
4. All or any of the fundamental rights can be curtailed, suspended or modified by an amendment of the Constitution itself under Article 368.

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