ARTICLE 13 , JUDICIAL REVIEW AND DOCTRINE OF WAIVER

Article 13 of the constitution do talks about the four principles relating to fundamental
rights.Fundamental rights do exist from the date on which the Indian constitution came into force i.e on
26th January 1950 hence fundamental rights became operative from this date only. Article 13(1) talks
about the pre-constitutional laws i.e the day from which the constitution came in existence there were
many laws in the country and when the constitution came into existence fundamental rights do came,
therefore the laws before the existence of the constitution must prove their compatibility with the
fundamental rights, only then these laws would be considered to be valid otherwise they would be
declared to be void. For example article 15 of the constitution do gives the right to education to all
without any discrimination on the basis of caste, sex, religion, etc, but an Education act which came in
existence in 1930 says that a particular group of kids would not be provided education on the basis of
their caste'. As this particular clause of the act is inconsistent with that of the fundamental rights
therefore it is declared to be null and void.

Article 13(1) refers to pre-Constitution laws: According to clause (1) of Article 13 all pre constitution or
the existing laws, i.e. laws which were in force immediately before the commencement of the
constitution shall be void to the extent to which they are inconsistent withfundamental rights from the
date of the commencement of the constitution.

Art. 13(1) is prospective and not retrospective. Therefore, a pre Constitution law inconsistent with a
Fundamental Right becomes void only after the commencement of the Constitution. Any substantive
rights and liabilities accruing under it prior to the enforcement of the Constitution are not nullified. It is
ineffective only with respect to the enforcement of rights and liabilities in the post-Constitution period.

Keshva Madhav Menon v. State of Bombay,

In this case the petitioner published a pamphlet according to the pre-constitutional laws in 1949 but as
the Indian constitution came in effect from 1950 it gave the freedom of speech and expression under
article 19 of the Indian constitution, therefore the apex court said that the petitioner's trial must go on
as the benefit of article 13 would not be given to him because article 13 is not retrospective in nature. It
was held that Art. 13(1) could not apply tohim as the offence had been committed before the
enforcement of the Constitution and,therefore, the proceedings against him were not affected.

DOCTRINE OF SEVERABILITY

According to Art. 13, a law is void only “to the extent of the inconsistency or contravention”with the
relevant Fundamental Right. The above provision means that an Act may not be void as a whole; only a
part of it may be void and if that part is severable from the rest which is valid,then the rest may continue
to stand and remain operative. The Act will then be read as if the invalid portion was not there. If the
valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an
incomplete or more or less mingled remainder the court will declare the entire Act void.

A.K Gopalan v. State of Madras

DOCTRINE OF ECLIPSE

The Doctrine of Eclipse is based on the principle that a law which violates Fundamental Rights is not
nullity orvoid ab initio but becomes only unenforceable. It is over-shadowed by the Fundamental rights
and remains dormant, but it is not dead. They exist for all post transactions and for the enforcement of
the rights acquired and liabilities incurred before the commencement of the Constitution.

Article 13 (2) talks about the post constitutional laws i.e it says thatonce the constitution is framed and
came in effect then any of the state may not make laws that takes away or abridges the fundamental
rights of an individual and if done so then it would be void till the extent of contravention.

In Deep Chand v. State of U.P., SC held that a post constitutional law made under A.13(2) which
contravenes a fundamental right is nullity from its inspection and a still- born law. It is void ab initio. The
doctrine of eclipse does not apply to pots- constitutional laws and therefore, a subsequent constitutional
amendment cannot revive it.

State of Gujrat v. Ambika mills

Here a certain labour welfare fund act was challenged, as certain sections in it were against the
fundamental rights. Since the fact that the laws made by the state after the constitution is framed would
be declared void if those laws are against the fundamental rights, but here the question arose that
fundamental rights are only granted to citizens but what will happen in the case of non-citizens or a
company (company here is the respondent i.e Ambika mills). It was held by the apex court that since the
fundamental rights are only granted to the citizens but not to the company or any non-citizen, therefore
the labour welfare fund act is valid. In this case SC modified its view as expressed in Deep Chand case. In
case the law contravenes a Fundamental Right limited to the citizens only, it will operate with respect to
the non-citizens. Such a law will be regarded as ‘still-born’ vis-à-vis the citizens even though it may be
operative qua the non-citizens, and so it will have to be re-enacted if it is desired to make it valid qua the
citizens.

Article 13(3) Gives a wide interpretation of the word law ."Law" is defined as including an Ordinance,
Order, bye-law, regulation, notification, custom or usage having the force of law. The definition of 'law' in
this Article is wider than the ordinary connotation of law which refers to enacted law or legislation. It
includes even the administrative order issued by an executive officer, but does not include administrative
directions or instructions issued by the Government for the guidance of its officers. It does not include
departmental instructions. Departmental instructions are neither "law" within the meaning of Article 13
(3)(a) nor are "procedure established by law" within the meaning of Article 21.
Judicial Review:

The Judiciary plays a very important role as a protector of the constitutional values that the founding
fathers have given us. They try to undo the harm that is being done by the legislature and the executive
and also they try to provide every citizen what has been promised by the Constitution under the
Directive Principles of State Policy. All this is possible thanks to the power of judicial review. The principle
of Judicial Review became an essential feature of written Constitutions of many countries. Seervai in his
book Constitutional Law of India, noted that the principle of judicial review is a familiar feature of the
Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in
strict sense in Indian Constitution, but the functions of different organs of the Government have been
sufficiently differentiated, so that one organ of the Government could notusurp the functions of another.
The power of Judicial Review has in itself the concept of separation of powers anessential component of
the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on
the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt
raised in that behalf, by the courts. The power of Judicial Review is incorporated in Articles 226 and

227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles
32 and 136 of the Constitution, the judiciary in India has cometo control by Judicial Review every aspect
of governmental and public functions Judicial Review is thus the interposition of judicial restraint on the
legislative as well as the executive organs of the Government. Judicial Review as a part of the Basic
Structure: In the celebrated case of Keshavananda Bharati v. State of Kerala, the Supreme Court of India
the propounded the basic structure doctrine according to which it said the legislature can amend the
Constitution, but it should not change the basic structure of the Constitution, The Constitutional bench
in Indira Nehru Gandhi v. Raj Narain held that Judicial Review in election disputes was not a compulsion
as it is not a part of basic structure.

Doctrine of Waiver. Can a citizen waive his fundamental right?

The doctrine of waiver has no application to the provision of law enshrined in Part III of the Constitution.
It is not open to an accused person to waive or give up his Constitutional rights and get convicted.2

The question of waiver directly arose in Bashesher Nath v. Income Tax- Commissioner. The petitioner
whose case was referred to the Income-tax Investigation Commissioner under Section 5 (1) of the Act
was found to have concealed large amount of income. He, thereupon, agreed at a settlement in 1954 to
pay Rs. 3 lakhs in monthly instalments by way of arrears of tax and penalty. In 1955, the Supreme Court
in Muthiah v. I.T. Commissioner, held that Section 5 (1) of the Taxation of Income (Investigation
Commission) Act was ultra vires of Article 14. The petitioner then challenged the settlement between
him and the Income Tax Investigation Commission. The respondent contended that even if Section 5 (1)
was invalid, the petitioner by entering into an agreement to pay the tax had waived his fundamental
right guaranteed under Article 14.
The majority expressed the view that the doctrine of waiver as formulated by some American Judges
interpreting the American Constitution cannot be applied in interpreting the Indian Constitution. The
Court held that, it is not open to a citizen to waive any of the fundamental rights conferred by Part III of
the Constitution. These rights have been put in the Constitution not merely for the benefit of the
individual but as a matter of public policy for the benefit of the general public. It is an obligation imposed
upon the State by the Constitution. No person can relieve the State of this obligation, because a large
majority of our people are economically poor, educationally backward and politically not yet conscious of
their rights. In such circumstances, it is the duty of this Court to protect their rights against themselves.