The doctrine of Severability and Doctrine of Eclipse

 

The topic covers The difference between the Doctrines of Separation and  Doctrine of eclipse by highlighting the importance of Fundamental Rights in the Indian Constitution.

Doctrine of Severability

It is otherwise called the Doctrine of Separability. It secures our Fundamental Rights, as it is referenced in Article 13 (1) of the Constitution that All laws implement in India, before the initiation of Constitution, to the extent that they are conflicting with the arrangements of fundamental rights will to the degree of that irregularity be void.

Yet, the entire law or act would not be held invalid or void, however just the part of the law or act which are not inconsistent with the Fundamental Rights. This is known as the Doctrine of severability. In any case, it is just conceivable if the part which is conflicting with the law is isolated from the entire law. If both the substantial and invalid part is so intently stirring up with one another that it can’t be isolated, then the entire law or act will be held invalid.

In A.K. Gopalan v. State of Madras[1]

The apex court held that in case of repugnancy to the Constitution, only the repugnant provision of the impugned Act will be held invalid or void and not the whole of it. It further observed that every attempt must be made to save as much as possible of the act. If the oversight or omission of the invalid part will not change the nature, arrangement, and structure of the object of the legislature, it is severable.

It was further observed that except for S.14 all other sections of the Preventive Detention Act, 1950 were valid, and subsequently, S.14 can be severed from the rest of the Act, the detention of the petitioner was not unlawful or illegal.

In State of Bombay v. F.N. Balsara[2]

Eight sections of the Bombay Prohibition Act were stated invalid by the bench, the Hon’ble Supreme Court observed that the portion which was invalid to the extent of fundamental rights was separable from the left out part of the act.

In R.M.D.C. v. Union of India[3]

This landmark judgment observed Doctrine of severability, J. Venkatarama Aiyar observed:

1. In responsibly determining whether the valid parts of a statute or the act are separable from the invalid parts thereof, it is the aim or the intention of the legislature that is the determining influence of factor. The test has to be applied when the question is whether the legislature would have enacted the valid part if it had known that the rest of the act was invalid.
2. If the valid and invalid part or provisions are so indistinguishably mixed up that it’s difficult to separate them from one another, then the invalidity of that portion must result in the invalidity of the Act as a whole. If they are so separate, different, and distinct that after striking out an invalid portion, what remains is in itself a complete code independent of the rest, then it should be upheld notwithstanding that the rest has become unenforceable.
3. Even when the provisions are valid, distinct, and separate from those which are invalid, if they all make part of one single scheme which is projected and intended to be operative as a whole, then also the invalidity of a part will fail in the whole.
4. Likewise, when the valid and invalid parts of a statute are autonomous and independent which do not form part of a scheme but what is left after omitting the invalid portion is so thin and curtailed as to be in constituent altered from what if was when it occurred out of the legislature, then also it will be rejected wholly.
5. The separation or the separability of the valid and invalid provisions of a statute does not rest on whether the law is sanctioned in the same section of different sections; it is not the form but the substance of the matter that is material, and that has to be ascertained on an investigation of the act as a whole and the setting of the relevant provisions therein.
6. If after the invalid or the void portion is expunged from the statute. The remains cannot be enforced without making alterations, corrections, and modifications therein, then entirely it must be struck down as void, as otherwise, it will result in judicial legislation.
7. In shaping or determining the legislative intent on the question of separability, it will be legitimate to take into account the history of legislation, its object, the title, and preamble to it.

also read- Jurisdiction of Civil Court & Its Bar

Doctrine of Eclipse

The doctrine of eclipse happens when one item dominantly overshadows the other, so as the name recommends that Doctrine of Eclipse is applied when any law or act disregards the basic Fundamental rights then the Fundamental rights eclipses the other law or act and make it unenforceable yet not void ab initio. They can be implemented again if the limitations presented by the crucial fundamental rights are eliminated.

Basic Fundamentals of Doctrine of Eclipse[4]

• It must be Pre-constitutional law
• Must conflict with the basic fundamental right
• the law doesn’t become a dead letter but only inoperative
• if there is an amendment to the basic constitutional Fundamental Right in the future it will automatically make the impugned law operative in nature.

In Bhikaji Narain Dhakras v. State of Madhya Pradesh[5]

S.43 of the Motor Vehicles Act, 1939 was amended by the Central Provinces and Berar Motor Vehicles (Amendment) Act, 1947, both together were pre- constitution legislations. The Amendment Act enabled and empowered the Provincial Government to take up the complete Provincial Motor Transport Business, these are violated of Article 19(1) (g). By a Constitutional amendment of Article 19(1) (6) the State was authorized and empowered to carry on the business to the notification issued by Government to this effect was questioned.

The Hon’ble Supreme Court held that the true position is that the impugned law became, for the time being, eclipsed by the fundamental right. The effect of the Constitution Act, 1951 was to remove or eliminate the shadow and to mark the impugned act unrestricted from all blemish or infirmity.

 In Deep Chand v. the State of U.P.[6]

The Hon’ble supreme court held that post-constitutional law made under Article 13(2) which contravenes a basic fundamental right is nullity from its commencement and a still-born law. It is void ab intio.

State of Gujrat v Ambica mills[7]

The apex court altered its view as expressed in Deep Chand[8] and Mahendra Lal Jaini[9] case and stated that a post-constitutional law which is uneven and not consistent with the constitutional fundamental rights is not nullity or non-existent in all cases and for all commitments.

Conclusion

Fundamental Rights in India are a remarkable feature of its Constitution. Dr. BR Ambedkar gave a two-fold unbiased objective of such rights; firstly, that every individual enjoys them and secondly that it becomes binding and compulsory on every authority. Therefore, whenever any act or law goes inconsistent and uneven with the basic fundamental rights of the individual,[10] either the Doctrine of Eclipse or Doctrine of Severability is functional to such impugned law to give prominence and inclination to the rights over laws.

The fundamental rights are dominant and article 13 which has in itself the doctrine of severability and the doctrine of eclipse defends the expectancy of the basic fundamental rights.

This article is written by Dipanwita Chatterjee, Currently pursuing BA-LLB in the 6^th Semester at KIIT School of Law.

 

[1] A.K. Gopalan v. State of Madras AIR 1950 SC 27

[2] State of Bombay v. F.N. Balsara AIR 1951 SC 318

[3] R.M.D.C. v. Union of India 1957 AIR 628, 1957 SCR 930

[4] Tusharika Singh, Doctrine of Eclipse, (Last accessed on 12^th February 2021 at 12.45pm) http://www.legalserviceindia.com/legal/article-4535-doctrine-of-eclipse.html

[5] Bhikaji Narain Dhakras v. State of Madhya Pradesh, 1955 AIR 781, 1955 SCR (2) 589

[6] Deep Chand v. the State of U.P, 1959 AIR 648, 1959 SCR Supl. (2) 8

[7] State of Gujrat v Ambica mills, 1974 AIR 1300, 1974 SCR (3) 760

[8] Deep Chand Vs. The State of Uttar Pradesh & Ors1959 AIR 648 1959

[9] Mahendra Lal Jaini v. State of Uttar Pradesh & Ors 1963 AIR 1019, 1963 SCR Supl. (1) 912

[10] Supra note 4