DOCTRINES
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DOCTRINE OF ECLIPSE:
The prospective nature of article 13(1) has given rise to the doctrine of eclipse. It deals with pre-constitution laws or existing laws. The law which has been valid at its inception. But has become invalid on the coming in the force of constitution in India. Fundamental rights guaranteed in part –III of the constitution is treated to be dormant but not dead and therefore if by the subsequent amendment of the constitution the inconsistency which has made unconstitutional is removed, the law will become free from infirmity and will become enforceable i.e. this is called doctrine of eclipse.
Does this doctrine apply to cost – constitutional law??
Article 13(2) relates to future laws. This doctrine is invoked only in the case of pre constitutional law not in post constitutional law. If a post constitutional law is inconsistent with the constitution it is void ab initio.
DEEP CHAND VS STATE OF UP
Supreme court held that post constitutional law made under article 13(2) which contravences a fundamental right is nullity and a still born law. So it cannot revive the minority however expressed the view that the doctrine is applicable to post constitutional law.
2.) DOCTRINE OF WAIVER
It states that a person who is entitled to a right or privilege is free to wave that right of privilege and once that person has waived his right he would not be allow to claim it afterwards.
BEHRAM VS STATE OF BOMBAY AIR 1955
It was held that this doctrine has no application to the provision of law. It is not open to an accused person to waive or give up his rights and get convicted. Doctrine of waiver saying that fundamental rights were not put in constitution merely for individual benefit.
YOSUF ALI VS MS KASBEKAR
Court held that the state cannot arrogate to itself a right to commit breach of fundamental rights of any person by resorting to principles of waiver
OMEGA ADVERTISING AGENCY VS STATE ELECTRICITY BOARD
Guwahati high court has explained that the fundamental rights have been embodied in the constitution not merely for the benefit of a particular individual but also as a matter of constitutional policy and for public good.
3.) DOCTORINE OF SEVERABILITY
It means that if an offending provision can be separated from that which is constitutional than only that part which is offending is to be declared as void and not the entire statue. It is only that part which shall be void under article 13 and not the whole of India . The court apply this doctrine to separate the valid portion of the law from the invalid portion
STATE OF BOMBAY VS F.N BALSARA1951
It was held that if an offending provision can be separated form that which is constitutional then only part which is offending which is to be treated as void and not the entire statute.
Author: kanika panwar,
IDEAL institute of management and technology & school of law, 2nd year/BALLB
