Introduction
Article 13
Doctrine of Severability
Safeguards
Conclusion
Abstract: The Doctrine of Severability and Doctrine of Eclipse are indispensable tools in constitutional adjudication. All doctrines for that fact, are an indispensable part in regulating court proceedings, allowing courts to address constitutional challenges effectively. To understand completely the concept of such doctrines, one must know the origin of such set of rules, their implications and their importance. Therefore this research article will primarily deal with the doctrines as such, their constitutional origin, applicability and some relevant case laws in order to deeply understand the concepts.
Introduction: Both these doctrines are a fundamental tenet of constitutional law that enables courts to address the issue of constitutionality of complex statutes. The doctrine of severability and of eclipse are evident in Article 13 of the Indian Constitution. Article 13 provides teeth to the fundamental rights. It talks about the Justiciability of these rights , ie. makes these rights enforceable in court. Clauses 1 and 2 of article 13 deal with laws inconsistent with or in derogation of fundamental rights. It states that:
Article 13 and its implications: This article ensures that any law, whether pre-existing or subsequently enacted, which is inconsistent with or derogatory to the fundamental rights guaranteed under Part III of the Constitution, shall be considered void to the extent of such inconsistency or contravention. It reinforces the principle that fundamental rights are sacrosanct and cannot be abrogated by legislation. Altogether, we may say that it has the following implications:
In this article however, we will be only be discussing the Doctrines of Severability and Eclipse. Both these doctrines state situations when can a law made derogatory to the fundamental rights , subsist, ie. not declared void.
Doctrine of Severability: As seen above in clauses 1 and 2 of Article 13, it is mentioned that the laws in contravention tot the fundamental rights be void only to the extent of such contravention or inconsistency. It means that the law completely shall not be declared void, but only the part thereof, contravening the provisions mentioned under fundamental rights be void. This is where Doctrine of Severability comes into play. The Doctrine of Severability entails that if a specific component within a statute violates a constitutional provision, and if this component can be separated from the remaining parts of the statute, the Court will nullify only the offending component rather than invalidating the entire statute. The courts apply this doctrine to separate the valid portion from the invalid portion in order to upheld the constitutional supremacy.
In the case of RMD Chamarbaugwala v Union of India, the Supreme Court examined the constitutionality of the Public Gambling Act, 1867. The dispute centered around whether the card game “rummy” should be considered a game of skill and thus exempt from the Act’s scope. The Court invoked the doctrine of severability, determining that while certain provisions of the Act might be unconstitutional, the game of rummy, being predominantly skill-based, could be separated from the Act’s broader framework. This landmark decision established a precedent that games with predominant skill elements should be exempted from the act’s prohibitions.
In Kameshwar Prasad v Union of India, the Supreme Court again applied the doctrine of severability. It upheld the Prevention of Insults to National Honour Act, 1971, but severed a clause as unconstitutional.
In yet another case, challenging the basic structure doctrine of constitution, Section 4 and 55 of 42nd Amendment Act, 1976 were declared as void and separable.
Similarly, there has been a plethora of cases and landmark judgements where the court has applied the doctrine of severability, and has severed the valid part from the invalid one, so as to keep the whole act from declaring void. The Supreme Court has also listed some rules of construction for the operation of the doctrine. These are:
Concluding, it can be said that the court may use the doctrine of severability as and when required by keeping the Intent of the Legislature in mind and the Doctrine of Pith and Substance alive. This involves discerning the genuine character and fundamental attributes of the law. When the lawful components of an agreement differ from the unlawful ones, their segregation becomes more straightforward.
Doctrine of Eclipse: The doctrine of eclipse comes into play when a constitutional amendment or a law is found to violate the basic structure of the Constitution. In such cases, the law is not struck down entirely but is held to be temporarily inoperative. This approach respects the role of the legislature (in the case of constitutional amendments) while ensuring that any amendment violating the essential principles of the Constitution is rendered ineffective.
In Keshavan Madhavan Menon V. State of Bombay, the court held that the law does not become void in total but it only gets void with respect to the persons whose fundamental right it infringes. Hence forming the base of Doctrine of Eclipse.
The only effect it has on the law is that the law gets into a dormant or moribund state. The law gets shadowed by the fundamental rights that it infringes or it gets eclipsed. This moribund state could be removed by making an amendment to the fundamental right it infringes. Thus, if by an amendment to the fundamental right, the shadow casted on the law could be removed, the law would be revived. This is how the courts apply doctrine of eclipse.
In the case of Bhikaji Narain v State of Madhya Pradesh, the Supreme Court of India delved into the application of the doctrine of eclipse within the realm of Indian constitutional law. The case revolved around the Central Provinces and Berar Sales of Motor Spirit Taxation Act, 1938, which imposed a tax on the sale of motor spirit. As India adopted its Constitution in 1950, certain provisions of this pre-Constitutional law began to clash with the newly established constitutional framework. These provisions, valid when enacted, now contradicted the constitutional principles.
The Supreme Court, in its judgment, invoked the doctrine of eclipse to address this conflict. The Court ruled that the conflicting provisions of the Act were not void ab initio but were instead eclipsed or overshadowed by the constitutional amendment. This meant that while these provisions were rendered unenforceable due to their inconsistency with the Constitution, they were not entirely erased from the legal landscape. The doctrine of eclipse, as applied in this case, clarified that the impugned provisions still existed in a dormant state, awaiting revival if they were to be brought in line with the constitutional provisions. In essence, the Court held that the amendments to the Constitution cast a shadow over these provisions, rendering them temporarily inoperative.
Doctrine of Eclipse and Post-Constitutional Laws: The Bhikaji Narain case established a precedent for the doctrine of eclipse in Indian constitutional jurisprudence. It demonstrated that pre-Constitutional laws, which once aligned with the legal framework, could be eclipsed by subsequent constitutional amendments, without being entirely extinguished, allowing the potential for revival under changed circumstances. Hence, the doctrine of eclipse is not applicable to post-Constitutional laws, because it pertains to pre-constitutional laws that became inconsistent with the new constitution due to amendments, whereas post-constitutional laws are enacted under the prevailing constitutional framework.
Safeguards: Constitutional supremacy is a fundamental principle that places the Constitution as the supreme law of the land. It establishes that all actions of the government, including legislation, must conform to the provisions and spirit of the Constitution. Both doctrines contribute to upholding constitutional supremacy as follows:
Doctrine of Severability:
Doctrine of Eclipse:
Conclusion: Both the doctrines of severability and eclipse serve to maintain the principles of separation of powers and constitutional supremacy. They strike a delicate balance between protecting legislative authority and upholding the integrity of the Constitution, thereby contributing to a robust and effective constitutional system. In the intricate fabric of constitutional law, the doctrines of severability and eclipse emerge as vital tools. While severability preserves legislative intent within the confines of the Constitution, eclipse ensures that pre-Constitutional laws cast their shadow, allowing for future alignment. Both doctrines stand as sentinels, harmonizing legal evolution with constitutional sanctity.
written by- Harvir Kaur, student of BA.LL.B, Department of Laws, Gurunanak Dev University, Amritsar.
