Please enable JavaScript.
Coggle requires JavaScript to display documents.
ARTICLE -13 PGL Logo_PNG (1) - Coggle Diagram
ARTICLE -13
PGL Logo_PNG (1)
Doctrine of Severability
Doctrine of severability is also known as doctrine of separability. It helps in the protection of our fundamental rights. It is mentioned in clause (1) of Article 13 of the Constitution of India
laws which were enforced in India, before the commencement of Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void
But the whole law or act would not be held invalid, only the provisions of the law or act which are not in consistent with the fundamental rights will be held as void.
But the application of this doctrine is only possible if the part which is inconsistent with the law can be separated from the whole
But the application of this doctrine is only possible if the part which is inconsistent with the law can be separated from the whole
If both the valid and invalid part are so closely weaved with each other that it can’t be separated, then, the whole law or act will be held as invalid
A.K. Gopalan v. State of Madras
The Supreme Court held that in case when a part of legislation is repugnant to the Constitution, only that repugnant provision of the impugned Act will be void and not the whole of the legislation, and every attempt should be made to save as much as possible of the act
If the omission of the invalid part will not change the nature or the structure of the object of the legislature, it is severable
R.M.D.C. v. Union of India
the Supreme Court of India, in this case layed down the guidelines for the application of doctrine of severability,
In ascertaining that whether the valid parts of a statute can be separated from the invalid parts thereof, it is the intention of the legislature that is the determining factor.
The test which should be applied is whether the legislature would have enacted the valid part without the impugned part if it had known that the rest of the impugned part of statute was invalid.
If the valid and invalid provisions are so inexorably mixed up with each other that they cannot be separated from one another, then the invalidity of a portion would result in the invalidity of the Act in its entirety invalidity of the Act in its entirety.
Doctrine of Eclipse
The doctrine of eclipse says that any law which is inconsistent with fundamental rights is not valid. Such a law is not totally dead but is overshadowed by the fundamental right.
The inconsistency (conflict) between the impugned law and fundamental right can be removed by introducing constitutional amendment to the relevant fundamental right so that eclipse vanishes
Bhikhaji v. State of Madhya Pradesh
These eclipsed laws 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 of the country that they remain dormant and inoperative, but they remain in operation against the non-citizens who are not entitled to fundamental rights guaranteed by the Constitution
Doctrine of Waiver
According to the doctrine of waiver, any person who is entitled to any right or privilege can waive off such a privilege, if he does so with his free will
the consequences while intentionally giving up the privilege of such right.
This doctrine operates on the assumption that a man is the best judge of his interest under any legal liability, and that he has the knowledge of the consequences while intentionally giving up the privilege of such right.
But, the doctrine of waiver does not apply to fundamental rights of the people guaranteed under the Constitution of India.
The fundamental rights were kept in the Constitution for the public at large and not merely for the individual’s benefit
Thus, the ‘doctrine of waiver’ cannot be used for giving up the fundamental rights.
Basheshar Nath v. Commissioner of Income Tax
Olga Tellis & Ors vs Bombay Municipal Corporation,[