(PART III

38
CONSTITUTION OF INDIA those rights.
Evenin respect of
claiming the right
be citizens, no arises of their legal persons, such as
those question which are availableto namely, equality of respect,
fundamental
to equality. it may berights, the core of equality,Moreover, it is a well-settled
said thatnon-natural persons.
is incapable of
application to cqualitydo not apply to business and eco-
proposition that the same standards of such as life and liberty.
nomic activities as apply to other matters expansion of human rights will
universal
It mav lbe hoped that the evolving
enforcement of the fundamental rights in the
ensure suitable efficacy to and the fundamental rights in
changing scenario. The Constitution in general and changes in society.
particular are capable of mceting the challenge of any
Laws inconsistent with or in derogation of the fundamental
3 immediately before
gnts,- (1) All lavws in force in the territory of India
they are inconsistent
e commencement of this Constitution, in so far as
With the provisions of this Part shall tothe 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) In thisarticle, 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 Indiabefore the
commencement this Constitution and not previously repealed,
of
notwithstanding that any
then in operation either at such law or any part thereof may not be
all or in particular areas.
8(4) Nothing in this article shall
Constitution made under Article 368.] apply to any amendment of this
Article 13 expressly lays down
the Supremacy of the what otherwise would
fundamental have been
in case implied,
ency between the two. It could rights over any other law i.e.
also mean that the of
to confine the application of
Constitutioninconsist-
cle. Thus, for examnple, fundamental
pre-Constitution to makers
rights what is stated in intended
they fall within the category of
"Jaws in laws shall be invalid only to the this arti-
not fal| within that
category, it could be force". As uncodified extent
become invalid on ground of any argued personal
that they were not laws do
us examine the sCope of different
in this regard are laid down in iclauses
nconsi()stency article. Thefundamentalintended
of this with the
clauses to
rights. Let
and (2). primary propositions
82. See, State of Gujarat v. Ambical
83. Ins. by the Constitution (24th Mil s Lid., (1974) 4
Amendment) Act,SCC 656:
1971, S. 2.AIR 1974 SC 1300.
 ART. 13]

FUNDA MENTAL RIGHTS 39

Existing laws CLAUSE (1)
Clause (1) deals With
force at the time of thepre-Constitution or existing laws. i.e.
laws which were in
commencement
inclusive definition of laws in of the
Constitution.
force.84 Under clause Clause (3)(b) gives an
they are
inconsistent with the (1) all laws in force, insofar as
ency, become void from the fundamental rights, shall, to the extent of
ehey become void only after date of the commencement of the Constitution. inconsist-
the court holds them
mental rights. So long as the courts But
oremain in force. do not hold theminconsistent with the
to be so, they shall funda
long after the Sometimes law may be found against the
a continue
In applyingcommencement
of the Constitution 85 fundamental rights
the rule embodied in clause (1), the
pretation should be noted: following principles of inter
1. No retrospective effect - The
provisions of the
damental rights have no retrospective effect.6Constitution relating to the fun
therefore, become void only from the All inconsistent existing laws,
Acts done before the commencement of the Constitution.
commencement of the Constitution in
contravention of the provisions of any law, which after the pursuance or in
of the Constitution become void commencement
because of inconsistency with
mental rights, are not affected. The the funda
inconsistent law is not wiped out so far
as the past acts are concerned. In Keshavan
Madhava Menon v. State of
Bombay, proceedings had been started against the appellant for an offence
punishable under Section 18, Press (Emergency Powers) Act, 1931, in respect CASE PILOT
of a pamphlet published 1949. Itwas contended on behalf of the appellant
in
that the Act was inconsistent with the fundamental rights conferred by the
Constitution, and, therefore, it had becomne void under Article 13(1) after 26
January 1950. For that reason the proceedings could not be continued. The
Supreme Court rejected this contention and held that Article 13() had nÍ
retrospective effect. The article did not have the effect of rendering the laws,
which existed on the date of the commencement of the Constitution, void ab
initiofor all purposes if they were inconsistent with the fundamental rights.
Das Jsaid:
Article 13(1)cannot be read as obliterating the entire operation of the incon
sistent laws, or to wipe them out altogether from the statute-book, for to
do so will be to give themn [fundamental rights] retrospective effect which,
we have said, they do not possess. Such laws exist for all past transactions

4. Compare definition of "existing law" in Art. 366(1o) and saving of such laws in Art. 372.
05. See e.g.. lohn Vallamattom v. Union of India, (2003) 6 SCC 611: AIR 2003 SC 2g02.
d6. Habeeb Mohammed v. State of Hyderabad, AIR 1953 SC 287: 1953 SCR 661; Sri Jagadguru Kari
Endowments, AIR 1965 SC
Basava Rajendraswami v. Comnir. of HinduReligious and Charitable
502: (1964) 8 SCR 252; Laclhmandas Kewalram Ahuja v. State of Bombay, AIR 1952 SC 235: 1952
SC 518: (1963) 2 SCR 1.
SCR 710; KunjBehari Lal Agarwal v. Union of lndia, AlR 1963
S7. AIR 1951 SC 128: 1951 SCR 228.
 [PART III

6TITUTION OF INDIA the date of the

accrued before
liabilities
and for rights and
enforcing all entire Act inoperative;
Constitution, not makean inconsistent with or
The rule of Article 13 does are
severabilits- provisions of it as
Bambay v. EN. Balsaras9
it makes inoperative Such
only
violative of the fundamental rights. In State af
were
held ultra vires on
Prohibition Act, 1949rights ofthe citizens. But
eight sections of the Bombay fundamental court said,
the ground that they infringed the allowed to stand. The
was
the Act, minus the invalid provisions,provisions the Actto be invalid does
of
"The decision declaring Some oftheremains." Therulethat the invalidity is
not affect the validity of the Act asit peculiar to Article 13, but is a gen-
only to the extent of incon1sistency is not power ofthe court to strike
The
eral principle of statutory interpretation." exercised beyond the necessity
out invalid provisions of an Act must not be
clarification to this principle isnotable. Sometimes valid
OTthe case, But a are sointertwined that they
cannot be sep
ana invalid portions of the Act
the invalidity of the portion must
arated trom one another. In such cases,
entiretv. The reason is that what
Tesult in the invalidity of the Act in its declared invalid,
remains valid is so inextricably bound up with the part
that the valid part cannot survive independently. In determining whether
the valid parts of a statute are severable from the invalid parts, theintentior
of the legislature is the determining factor." In other words, it should be
asked whether the legislature would have enactedat allthat which survives
without enacting the part found ultra vires.2 The severable invalid provi
sion may be struck down not only to restrict but also to enlarge the applica
tion of the law if such enlargement will save the law."9
The rule of severability applies as much to clause (2) as to clause (1) of
Article 13.
2 The doctrine of eclipse-An existing law
right, though becomes inoperative from theinconsistent with a fundamental
the Constitution, is not dead date of the commencement of
damental right and remains altogether.but
"It is overshadowed by the
dormant, is not dead."9s It is a fun
if a question arises for
before the commencement of
the determination
of rights and good law
obligations
incurred
nation of rights of persons who
have Constitution,
and also for the
not been given determi-
88. Ibid, (AIR) 130. For a different view
see, U.R.Rai,
fundamental rights
(2011) 721-22.
89. AIR 1951 SC 318: 1951 SCR 682.
90. Cooley, Constitutional Limitation, Vol. I, ,
Fundamental Rights and Their Enforcement
91. R.M.D. Chamarbaugwalla v. 246.
of Gujarat v. Kaman Lal Keslau Lal of Union India, AIR
Traders v. State of A.P, (1984) 1 SCC Soni, 2 1957 SC 628:
Supp SCC 432: AIR 1986 SC: 210; 222: AlR(1983)
1g84 SCC 33: AIR 1957 SCR 930.
SC903. Deepak Sibal SC 121; B. 1984 SC 161; MotorAlso, State
92. State of Bihar v.
Kameshwar Singlh, AIR
v.
Pnjab UniverPrsaibhakar
ty, Rao v. State of General
A.P, 1985
93.
94.
D.S. Nakara v. Union of India,
Bhikaji Narain Dhakras v.
1952 SC 252:
(1g83) 1 SCC 1952 (1g89) 2
SCC 145 :AIR 189
State of M.P., AIR 305: SCR 889.
1955 AIR
SC 1983 SC
 Constitution came into force as regards non-citizens, because it was
sistent with their fundamentalrights, so also a post-Constitution not incon-
ing Article 19 remained operative as against non-citizens, because ititlaw offend
contravention of any of their fundamental rights. Apre-Constitution waS not in
Jaw,
takes away or abridges the rights under Article 19, should remain operative which
after the Constitution came into force, not because it was valid
when even
but because it was void only to the extent of inconsistency with the enacted,
rights conferred under Article 19 and that its voidness was,
to citizens, as, ex hypothesi, the law became inconsistent with their fundament
therefore, confinedal
rights alone. It was further explained that the meaning of the
same both in Article 13(1) and Article 13(2); and for word "void" is the
that reason a post-Constiti.
fundamental
tion law which takes away or abridges the
be operative as regards rights conferred by Article 19 should
non-citizens,
vention of the rights conferred
as it is void only to the extent of the
on citizens under Article 19. In Contra
other words, the
voidness 1s not 111 rem but to the extent of
by Part III. The phrase "to the contravention
extent of the contravention" could
of the rights
conferred
the extent of the
law is otherwise good contravention of the rights conferred. So it was mean only to
held that if a
and does not
contravene any of
non-citizens cannot plead that the law is absolutely null and fundamental rights,
their
ble to them simply
of the citizens. Some because it isinconsistent with some of the void and inapplica
their groups such as fundamental rights inhere in diverse fundamental rights
abridges the fundamental minorities or denominations, and if sections a
of people Or
inations, it could not be voidright of one class of people, or of law takes away or
right.! Thelaw laid down in as against others who have no minorities or denom
such fundamental
the removal of Ambica Mills² is of great
the Constitution.3
unconstitutionality by importance
subsequent amendmnent in
considering
of the statute or of
Dealing with the question
ment, the Supreme Court of revival of a
cCured the defect, if any, inhas held that Articlevoid Act by
constitutional
amend
regards any the various Acts 31-B and the Ninth
Schedule
took place unconstitutionality
mental rights, and by the alleged on the mentioned
express words of ground of
in the said have
schedule as
put on the with
amendment.
statuteretrospective
book.4 Thus,operation
Article 31-B infringement
such
a void from the dates on curing of the defect
of funda-

statute could be which the Acts were

Sometimes
though they
the courts also
have found a apply their
revived by constitutional
only for the future. law against the decisions
very inception. In
1. See also,
Thus
Germany,
the Jaw is not
fundamental
the Federal declared void ab initio
prospectively.
rights,or they
It means that
invalidate it
Ahmedabad
SC 1389.
2. (1974) 4
St.
3. V.S. SC656: AlR 1974 SC 300.
Constitutional
Xavier's College Society v. of Court also nullity the
State
a
allows
from its
lawS
in P.L.Deshpande, Judicial |
Mahra v. Revie w of
Gujarat, (19774) 1SCC 717: AIR 1974
4.
Jagannath v. D.R. Khanna, AIR 1971
Ahmad v. StateAuthorised officer, legislati
Delo n
1. (1975), and
PILOT
Supp (2) SCR 8.
of U.P.,
AIR 1954 SCLand
728; Reforms,
Deep Chand(i971)
di2ssenting opinion of Deshpande )
v. StateSCC
of 893, 9o5;
ART. 13)
FUNDA MENTAL RIGHTS 41

by the Constitution."* This has led the

Supreme Court to apply to the exist
ing laws, i.e. the pre-Constitution laws, what may bedescribed as the doc
trine of eclipse. According to this doctrine, an existing law, i.e. a law
before the commencement of the Constitution, remains eclipsed or made
to the extent it comes under the shadow of the dormant
fundamental right, i.e. is
inconsistent with it, but the eclipsed or dormant parts become operative and
effective again if the prohibition brought about by the fundamental right is
removed by an amendment of the Constitution. The Supreme Court deci
sion in Bhikaji Narain Dhakras v. StateofM.P% is agood illustration of the
application of the rule.
CASE PILOT
In that case an existing State law authorised the State Government to exclude all
private motor transport operators from the field of transport business. Parts of
this law became void on the commencement of the Constitutjon, as it infringed
the provisions of Article 19(1)\(g) of the Constitution and could not be justified
under the provisions of lause (6) of Article 19. In 1951, clause (6) of Article 19
was amended by the Constitution (1st Amendment) Act, 1951, So as to permit the
governmentto monopolise any business. The Supreme Court held that after the
amendment of clause (6) of Article 19, on 18 June 1951, the constitutional imped
iment was removed and the impugned Act ceased to be unconstitutional and
became operative and enforceable.
Thedoctrine of eclipse which at one time was supposed to be applicable only
to pre-Constitution laws has, to the extent and in the sense noted below, now
been extended to post-Constitution laws also.7

CLAUSE (2)
Future laws
Clause (2) of Article 13 relates to future laws, i.e. laws made after the commence
ment of the Constitution. The State is prohibited from making any law which
takes away or abridges any of the rights conferred by Part III. Avoid. law made in
contravention of clause (2) shall, to the extent of contravention, be The con
void" or
cept of "voidness" has eventually come to be considered as "relatively Mills),
(Shri Ambica
partially invalid. In State of Gujarat v. Ambica Mills Ltd.*abridges
away or the funda
a question was raised whether alaw, which takes be void and, therefore, non CASE PILOT
mental right of citizens under Article 19(1)(), would
court, Mathew J, after reviewing the
est as regards non-citizens. Speaking for the pre-Constitution
earlier decisions, observed that just as a law taking away or
operative after the
abridging the fundamental rights under Article 19 remained
SC 128: 1951 SCR 228; Behram Khurshid
95. Keshavan Madhava Menonv. State of Bonbay, AIR 1951
Pesikakav. State of Bombay, AIR 1955 SC 123.
96. AIR 1955 SC 781. AIR 1974 SC 1300.
V97. State of Gujarat v. Ambica Mills Ltd., (1974) 4 SCC 656:
98. lbid.
SC 128: 1951SCR 228; Behram Khurshid
99. Keshavan MadhavaMenon v. State of Bombay, AIR 1951 Dhakras v. State of M.P., AIR 1055
Pesikaka v. State of Bombay, AIR 1955 SC 123; Bhikaji Narain
(2) SCR 8; MahendraLal Jaini
SC 781;Deep Chand v, State of U.P, AIR 1954 SC648: 1959 Supp
v. State of U.P., AIR 1963 SC 1019: 1963 Supp (1)) SCR 912.