Summary

1. Doctrine of Prospective Effect Case

2. Doctrine of Eclipse Cases
3. Doctrine of Waiver Cases
4. Doctrine of Severability cases

1. Doctrine of Prospective Effect—Case---- Keshavan Madhava Menon v. State of Bombay and I.C
Golaknath v State of Punjab
 Keshavan Madhava Menon v. State of Bombay [Art. 13 – Only
‘Prospective Effect’, ‘No Retrospective Effect’]

Date of Judgment – January 22, 1951

Bench – Seven Judges

Majority Opinion - i. Hon’ble Chief Justice of India Hiralal J. Kania, ii. Hon’ble Justice Sudhi Ranjan Das
iii. Hon’ble Justice M. Patanjali Sastri, iv. Hon’ble Justice Mehr Chand Mahajan, v. Hon’ble Justice N.
Chandrasekhara Aiyar,

Minority Opinion i. Hon’ble Justice Saiyid Fazal Ali, ii. Hon’ble Justice B.K. Mukherjea

Impugned Statutory provisions –

 Press and Registration of Books Act, 1867  Section 1 [Meaning of Book]

 Indian Press (Emergency Powers) Act, 1931  section 2 (6) *Defines ‘News Sheet’+  Section 15
[Publication without permission of Authority]  Section 18 [Publication without permission of
Authority is punishment]
 Constitution of India, 1950  Article 13 (1) &  Article 19 (1) (a)

FACTS

 Keshavan Madhava Menon was the Secretary of People’s Publishing House, Ltd., a company
incorporated under the Indian Companies Act with its registered office at 190- B, Khetwadi Main Road in
Bombay.  September, 1949- In September, 1949, a pamphlet entitled “Railway Mazdooron ke khilaf
Nai Sazish” is alleged to have been published in Bombay by the petitioner as the secretary of that
company.  Prosecution under Indian Press (Emergency Powers) Act, 1931 was started against violation
of Section 18 of the Act in Chief Presidency Magistrate, Bombay in 1949.

 January 26, 1950 - During the pendency of the proceedings the Constitution of India came into force
on January 26, 1950.  March 3, 1950 - On March 3, 1950, the petitioner filed a written statement
submitting, inter alia, that the definition of “news sheet” as given in section 2 (6) of the Indian Press
(Emergency Powers) Act, 1931, and sections 15 and 18 thereof were ultra vires and void in view of

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article 19(1) (a) read with article 13 (1) and that the hearing of the case should be stayed till the High
Court decided that question of law.

HIGH COURT He did not get any remedy from High Court. He approached to Supreme Court.

SUPREME COURT He also did not get any remedy form Supreme Court. There are following issues and
arguments of parties before Supreme Court –

Issues – There were following issues in this case –

1. Whether a prosecution commenced (1949) before the coming into force of the Constitution could be
continued after the Constitution came into force (January 26, 1950) as the Act in question there became
void as violating article 19 (1) (a) read with Article 19 (2)? Answer – Yes.

2. Whether prosecution against Keshavan Madhava Menon will continue even in case of violation of
laws with Article 19 (1) (a)? Answer – Yes. Reason of this is that Article 13 (1) is applicable with
prospective effect.

3. Was the provisions of ‘Indian Press (Emergency Powers) Act, 1931 violative of fundamental rights?
Answer – Supreme Court did not reply answer of this. It was not necessary to decide for decision of this
case. Reason was that Article 13 (1) is applicable with prospective effect.

Ratio of Judgement –

i. Article 13(1) does not make laws void ab initio – Article 13(1) of the Indian Constitution does not
make existing laws which are inconsistent with fundamental rights void ab initio, but only renders such
laws ineffectual and void with respect to the exercise of fundamental rights on and after the date of the
commencement of the Constitution. For example in case of violation of Article 19.

ii. No retrospective effect, Only prospective effect – Article 13 (1) has no retrospective effect, and if
therefore an act was done before the commencement of the new Constitution in contravention of the
provisions of any law which was a valid law at the time of the commission of the act, a prosecution for
such an act, which was commenced before the Constitution came into force can be proceeded with and
the accused punished according to that law even after the commencement of the new Constitution.

iii. Rules regarding interpretation of laws – Every statute is prima facie prospective unless it is expressly
or by necessary implications made to have retrospective operation. There is no reason why this rule of
interpretation should not be applied for the purpose of interpreting our Constitution.

iv. Source of spirit of the Constitution is language of Constitution – A court of law has to gather the
spirit of the Constitution from the language of the Constitution. What one may believe or wish about to
the spirit of the Constitution cannot prevail if the language of the Constitution does not support that
view.

v. Meaning of ‘void’ - Article 19 is available only to citizens. If any law is inconsistent of Article 19, that
law will be void, but that law will still be statute book and will be applicable to non-citizens. The word

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‘void’ in article 13 (1) would not have the effect of wiping out pre Constitution laws from the statute
book, that they will continue to be operative so far as non- citizens are concerned, notwithstanding the
fact that they are inconsistent with the fundamental rights of citizens and therefore become void under
article 13 (1).

vi. To the extent of inconsistency – Whole law is not void. Only that part is void which is inconsistent
with fundamental rights.

2. Doctrine of Eclipse:---
1. Bhikaji Narain Dhakras and Others v. The State of Madhya Pradesh
and Another [Doctrine of Eclipse: Pre-Constitutional Law]
Date of Judgment – September 29, 1955
Bench – Constitutional Bench
1. Hon’ble Justice Sudhi Ranjan Das
2. Hon’ble Justice Natwarlal H. Bhagwati
3. Hon’ble Justice T.L. Venkatarama Aiyyar
4. Hon’ble Justice Syed Jaffer Imam
5. Hon’ble Justice N. Chandrasekhara Aiyar

Statutory Provisions
 The Motor Vehicles Act, 1939 (Central Act)
 C.P. & Berar Motors Vehicles (Amendment) Act, 1947 (Act III of 1948).
 By this Act, The Motor Vehicles Act, 1939 was amended.
 It conferred wider powers on State.
 It conferred extensive powers on the Provincial Government including the
power to create a monopoly of the motor transport business in its favour to the
exclusion of all motor transport operators.
 Constitution of India, 1950 [ Article 19 (1) g) ]
 Berar Motors Vehicles (Amendment) Act, 1947 was unconstitutional.
 Reason of this was that this law was contravention of Article 19 (1) (g).
 The Constitution (First Amendment) Act, 1951 [June 18, 1951]
  By this Amendment Article 19 (6) was amended and again State was given
monopoly.
FACTS
 Five petitions were filled which were heard together. They challenged the
constitutional validity of C.P. & Berar Motors Vehicles (Amendment) Act, 1947 on the
basis of violation of Article 19 (1) (g).
 The petitioners who carried on their business as stage carriage operators of Madhya
Pradesh for a considerable number of years challenged the constitutional validity of the
C.P. & Berar Motor Vehicles (Amendment) Act, 1947 which amended the Motor

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 Vehicles Act, 1939 and conferred extensive powers on the Provincial Government
including the power to create a monopoly of the motor transport business in its favour
to the exclusion of all motor transport operators.
 In exercise of the powers conferred by s. 43(1) (iv) a notification was issued on the 4th
of February, 1955, declaring the intention of the Government to take up certain routes.
 Notification was immediate reason to file writ petitions.

Issues – Issues in this case were revolving to Berar Motors Vehicles (Amendment) Act,
1947.
1. Was Berar Motors Vehicles (Amendment) Act, 1947 dead after commencement of
the Constitution?
Answer – No.
2. Was Berar Motors Vehicles (Amendment) Act, 1947 a dormant or moribund
condition after commencement of the Constitution?
Answer- Yes.

Ratio of the Bhikaji Case –

 Article 13 (1): Inconsistent laws will be in a dormant or moribund condition –
Hon’ble Justice Sudhi Ranjan Das observed, “All laws, existing or future, which are
inconsistent with the provisions of Part III of our Constitution are by the express
provision of article 13, rendered void “to the extent of such inconsistency”. Such
laws were not dead for all purposes. They existed for the purposes of pre-
Constitution rights and liabilities and they remained operative, even after the
Constitution, as against non citizens. It is only as against the citizens that they
remained in a dormant or moribund condition”. The true effect of Art. 13(1) is to
render an Act, inconsistent with a fundamental right, inoperative to the extent of
the inconsistency. It is overshadowed by the fundamental right’ and remains
dormant but is not dead”.
 “to the extent of such inconsistency”: Application of Ratio of Keshavan Madhava
Menon Case – In the case of Bhikaji Narain Dhakras v. State of Madhya Pradesh,
Justice Das inferred the ratio of K.M. Menon Case and observed, “As explained in
Keshavan Madhava Menon’s case the law became void not
 in toto or
 for all purposes or
 for all times or
 for all persons

but only “to the extent of such inconsistency”, that is to say, to the extent it became
inconsistent with the provisions of Part III which conferred the fundamental rights
on the citizens. It did not become void independently of the existence of the rights
guaranteed by Part III

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Language of Article 13 (1) – Article 13(1) by reason of its language cannot be read as having obliterated
the entire operation of the inconsistent law or having wiped it out altogether from the statute book.
Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the
date of the Constitution,

3. Deep Chand v. State of U.P. & Ors. [Doctrine of eclipse is not applicable in case of
Post-Constitutional Law]

Facts - These appeals impugned the constitutionality of the Uttar Pradesh Transport Service
(Development) Act, 1955, passed by the State Legislature after obtaining the assent of the President,
and the validity of the scheme of nationalisation framed and the notifications issued by the State
Government under it. The appellants as permit holders under the Motor Vehicles Act, 1939, were plying
buses on different routes in Uttar Pradesh along with buses owned by the State Government. The State
Government issued a notification under S. 3 of the impugned Act directing that the said routes along
with others should be exclusively served by the State buses, and followed up that notification by others
under ss- 4 and 8 of the Act. It was challenged on the ground of violation of Article 19 (1) (g). It was
argued that Uttar Pradesh Transport Service (Development) Act, 1955 was void due to Article 13 (2).

Majority Opinion – Majority opinion was written by Hon’ble Justice Subba Rao. It was held that 
Differences between post-Constitution law & pre-Constitution law – a post Constitution law is void from
its inception but that a pre-Constitution law having been validly enacted would continue in force so far
as non-citizens are concerned after the Constitution came into force.

 Meaning of ‘void’ – The Court further said that there is no distinction in the meaning, of the word
’void’ in article 13(1) and in 13(2) and that it connoted the same concept but, since from its inception
the post-Constitution lay is void, the law cannot be resuscitated without re-enactment.

Grounds Majority Opinion Minority Opinion

Post Constitutional Law It is void its inception for all It is not void its inception. It is
(Citizen and Non-citizen) void only in case of infringement
of FRs. If it is not infringing FRs of
Non-citizens, it will continue
against non-citizens
Doctrine of Eclipse Doctrine of Eclipse is not applied Doctrine of Eclipse is applied on
on Post Constitutional Law. Post Constitutional Law.

4. Mahendra Lal Jaini v. The State of U.P. and Others

In this Case Supreme Court observed following important points –

 Meaning of ‘void’ - The meaning of the word ’void’ is the same both in article 13(1) and article 13(2).
 Doctrine of eclipse is applicable only in pre-constitutional laws rather than post Constitution laws -
The application of the doctrine of eclipse in the case of pre Constitution laws and not in the case of
post-Constitution laws does not depend upon the two parts of article 13;

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 Reasons of this - it arises from the inherent difference between article 13(1) and article 13(2) arising
from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post-
Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse
will apply while in the other case the law being still-born there will be no scope for the application of the
doctrine of eclipse.

Grounds Pre-constitutional laws Post-Constitution laws

Nature of Law It is not still-born It is still-born
Doctrine of Eclipse Doctrine of eclipse is applicable Doctrine of eclipse is not
applicable

5. State of Gujarat & Anr. v. Shri Ambica Mills Ltd. Ahmedabad, Etc

Statutory Provisions

 The Bombay Labour Welfare Fund Act, 1953

 Sections 3, 6A and 7

 The Bombay Labour Welfare Fund Rules, 1953

 The Bombay Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961(the First
Amendment Act)

 Section 13

 the Bombay Labour Welfare Fund (Gujarat Amendment) Act, 1962 on February 5, 1963 (the Second
Amendment Act)

 introducing sub-section (13) in s.6A with retrospective effect from the date of
commencement of the Act.

FACTS

 On May 1, 1960, the State of Bombay was bifurcated into the States of Maharashtra
and Gujarat.  The Legislature of Gujarat thereafter enacted the The Bombay Labour Welfare
Fund (Gujarat Extension and Amendment) Act, 1961(the First Amendment Act) making various
amendments in the Act, some of them with retrospective effect. By Amendment, it was tried to
remove all grounds on the basis of which some provisions of this Act was declared invalid in the
case of Bombay Dyeing & Manufacturing Co. Ltd. v. State of Bombay (1958).

 Shri Ambica Mills Ltd, a company registered under the Companies Act, filed a Writ
Petition in the High Court of Gujarat.  In that petition it impugned the provisions of

 Sections 3, 6A and 7 of the Bombay Labour Welfare Fund Act, 1953 and

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  Section 13 of the Bombay Labour Welfare Fund (Gujarat Extension and Amendment)
Act, 1961 (the First Amendment Act) and  Rules 3 and 4 of the Bombay Labour Welfare Fund
Rules, 1953 (the Rules)

as unconstitutional and prayed for the issue of a writ in the nature of mandamus or other appropriate
writ or direction against the respondents in the writ petition to desist from enforcing the direction in the
notice dated August 2, 1962 of the authority to the writ petition requiring the Shri Ambica Mills Ltd to
pay the unpaid accumulations specified therein.

SUPREME COURT

Issue - The real question, therefore, is, even if a law takes away or abridges the fundamental right of
citizens under article 19 (1) (f), whether it would be void and therefore non-est as respects non-
citizens?

Ratio of Judgment - Supreme Court observed following important point in this case –

1. Restriction on power of State and its effect - Article 13(2) is an injunction to the ‘state’ not to pass any
law which takes away or abridges the fundamental rights conferred by Part III and the consequence of
the contravention of the injunction is that the law would be void to the extent of the contravention.

2. Doctrine of eclipse - The expression ‘to the extent of the contravention’ in the subarticle can only
mean, to the extent of the contravention of the rights conferred under that part. Rights do not exist in
vacuum. They must always inhere in some person whether natural or juridical and, under Part III, they
inhere even in fluctuating bodies like a linguistic or religious minorities or denominations. And, when the
sub-article says that the law would be void “to the extent of the contravention”, it can only mean to the
extent of the contravention of the rights conferred on persons, minorities or denominations, as the case
may be.

3. Application of ‘Doctrine of eclipse’ to Pre & Post-Constitutional law - Just as a pre-Constitution law
taking away or abridging the fundamental rights under article 19 remains operative after the
Constitution came into force as respects non-citizens as it is not inconsistent with their fundamental
rights, so also a post-Constitution law offending article 19, remains operative as against non-citizens as it
is not in contravention of any of their fundamental rights.

4. Relation between Article 13 (1) & Article 13 (2) - The same scheme permeates both, the sub-articles,
namely, to make the law void in article 13(1) to the extent of the inconsistency with the fundamental
rights, and in article 13(2) to the extent of the contravention of those rights. In other words, the
voidness is not in rem but to the extent only of inconsistency or contravention, as the case may be of
the rights conferred under Part III.

5. Meaning of void - When article 13(2) uses the expression ‘void’, it can only mean, void as against
persons whose fundamental rights are taken away or abridged by a law. The law might be ‘still-born’ so
far as the persons, entities or denominations whose fundamental rights are taken away or abridged, but

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there is no reason why the law should be void or ’still-born’ as against those who have no fundamental
rights.

6. KK Poonacha v. State of Karnataka [September 07, 2010]

Division Bench 1. Hon’ble Justice G.S. Singhvi 2. Hon’ble Justice Asok Kumar Ganguly In this Case

Supreme Court held that ‘Doctrine of Eclipse’ has been held to apply only to ‘preconstitution law’
which are governed by Article 13 (1) and would not apply to post-constitution laws which are governed
by Article 13 (2).

Ground Pre-Constitutional Law Post-Constitutional Law

Validity At the time of enactment, law At the time of enactment, law
was valid. After enactment of was invalid. From the very
constitution, they become beginning, Act was in
inconsistent to fundamental contravention of Part III.
rights.

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 2. Doctrine of waiver
1. Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan &
Another. (Date of Judgment -19/11/1958, S.C.)

In this case Supreme Court said, “To constitute ‘waiver’, there must be an intentional relinquishment of
a known right or the voluntary relinquishment or abandonment of a known existing legal right, or
conduct such as warrants an inference of the relinquishment of a known right or privilege”. Waiver
differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a
right; estoppel is a rule of evidence.

Kinds of Waiver

There are two types of waiver namely:

1. Waiver of Statutory Rights

2. Waiver of Fundamental Rights.

Difference between estoppel & waiver

(1) Provash Chandra Dalui & Anr. v. Biswanath Banerjee & Anr. (April 3, 1989). -----The essential
element of waiver is that there must be a voluntary and intentional relinquishment of a known right or
such conduct as warrants the inference of the relinquishment of such right.  Waiver is distinct from
estoppel in that in waiver the essential element is actual intent to abandon or surrender right,  while in
estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the
conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose
any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an
opportunity for a choice between the relinquishment and the conferment of the right in question.

(2) Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan & Another. -----Waiver
differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a
right; estoppel is a rule of evidence.

Differences between Estoppel & Waiver

Ground Waiver Estoppel

Intention There must be voluntary and Intention of party is immaterial.
intentional relinquishment of
right or conduct.
Benefit One party must loss and other Here there is no such
gain. requirement.
Cause of action Waiver is an agreement to Estoppel does not constitute
release or not to assert a right cause of action.
may constitute cause of action.
Judgment From the judgment of Court From the judgment of Court
waiver does not arise estoppel may arise.

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Contractual / Rule of evidence It is contractual and is an Estoppel is a rule of evidence.
agreement to release or not to
assert a right;
Application Waiver is not applicable in case Estoppel is not applicable against
of fundamental rights. No one Parliament.
can waive his fundamental
rights.

Gujarat University v. Arun Shushilkumar Bhakkad and Anr. (Division Bench) (Guj. H.C. 2009) -----

In this case issue was granting of ‘Gold Medal’ after re-assessment of result. In this case Division Bench
held that respondent was entitled to claim re-assessment subject to condition that I will not claim any
benefit after change of result. He chose that condition. The doctrine of approbate and reprobate is only
a species of estoppel; it applies only to the conduct of parties and as the case of estoppel it cannot
operate against the provisions of a statute. Maxim “allegans contraria non est audiendus”, which means
he shall not be heard who says things contradictory to each other. Conclusion – Student who secured
highest marks after re-assessment was not entitled gold medal.

2. Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan &

Another.

Issues - The two questions for determination in this appeal were,

(1) Whether a settlement under s. 8A of the Taxation of Income (Investigation Commission) Act,
1947 (30 Of 1947) made after the commencement of the Constitution was constitutionally valid
and

Answer- This issue is not related to ‘Doctrine of Waiver’.

(2) Whether the waiver of a fundamental right was permissible under the Constitution.

Answer - Hon’ble Justice Sudhi Ranjan, and Hon’ble Justice J.L. Kapur There could be no waiver of the
fundamental right founded on Art. 14 Of the Constitution and it was not correct to contend that the
appellant had by entering into the settlement under s. 8A of the Act, waived his fundamental right
under that Article. Article 14 was founded on a sound public policy recognised and valued all over the
civilised world, its language was the language of command and it imposed an obligation on the State of
which no person could, by his act or conduct, relieve it.

Doctrine of Waiver in USA

The American Law on the subject may be summarized thus: The doctrine of waiver can be invoked when
the Constitutional or Statutory guarantee of a right is not conceived in public interest or when it does
not affect the jurisdiction of the authority infringing the said right. But if the privilege conferred or the

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right created by the statute is solely for the benefit of the individual, he can waive it. But even in those
cases the Courts invariably administered a caution that having regard to the nature of the right some
precautionary and stringent conditions should be applied before the doctrine is invoked or applied.

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 3. Question---Article 13 of the Constitution uses the the
words ‘to the extent of such inconsistancy be void’.
Explain it by citing relevant decided cases by the Courts.

Answer - Doctrine of Severability

1. A. K. Gopalan v. The State of Madras,1950---- The preventive Detention Act, 1950, with the
exception of Sec. 14 thereof did not contravene any of the Articles of the Constitution and

 Even though Sec. 14 was ultra rites inasmuch as it contravened the provisions of fundamental rights of
the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of
Sec. 14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not
illegal.

2. State of Bombay v. F.N. Balsara,1951---- Bombay Prohibition Act, 1949- S.C., “The provisions
which have been declared as void do not affect the entire statute, therefore, there is no
necessity for declaring the statute as invalid.”
3. R. M. D. Chamarbaugwalla v. The Union of India,1957----- Prize Competitions Act, 1955.
Disputed law was severable. Court declared unconstitutional only those parts which related to
competition not involving skill. According to Article 19(1) (g) Parliament could restrict prize
competitions only of gambling nature but not those involving skill.

1. Intention of the legislature - In determining whether the valid parts of a statute are separable from
the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to
be applied is whether the legislature would have enacted the valid part if it had known that the rest of
the statute was invalid.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one
another, then the invalidity of a portion must result in the invalidity of the Act in its entirety.

3. On the other hand, if they are so distinct and separate that after striking out what is invalid, what
remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that
the rest has become unenforceable.

4. Even when the provisions which are valid are distinct and separate from those which are invalid, if
they all 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.

5. 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 the legislature, then also it will be rejected in its
entirety.

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6. The separability of the valid and invalid provisions of a statute does not depend on whether the law is
enacted in the same section or different sections; 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.

7. .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. In determining the legislative intent on the question of
separability, it will be legitimate to take into account the history of the legislation, its object, the title
and the preamble to it.

4. Kihoto Hollohan v. Zachillhu and Others Date of Judgment – February 18, 1992 ----Doctrine of
severability was applied in this Case. Supreme Court by a majority of 3:2 had upheld the validity
of Schedule X of Constitution of India minus Para 7 of the Schedule.

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