NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

In the partial fulfilment for the requirement of the project on the subject of
Constitutional law of B.A.L.L.B (Hons.), third semester.

SUBJECT: CONSTITUTIONAL LAW

III SEMESTER PROJECT

TOPIC: A BRIEF ANALYSIS OF DOCTRINE OF SEVERABILITY OF ARTICLE 13 OF THE

CONSTITUTION OF INDIA WITH REFRENCE TO THE CASE OF

R. M. D. CHAMARBAUGWALLA VS THE UNION OF INDIA

SUBMITTED BY: SUBMITTED TO:

SHUBHAM KAMAL Ms. KULDEEP KAUR ma’am

2019 BA LLB (HONS) 36 LLB[HONS] UNIVERSITY
OF LONDON

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 NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

ACKNOWLEDGEMENT

This project has been made possible by the support of various people, my friends, family and
most importantly my respected teachers. I would like to extend a very sincere gesture of
gratitude towards our constitutional law teacher Ms. Kuldeep Kaur ma’am for guiding me
throughout the development of this project and providing me with everything that was needed.
I’m very grateful to the library staff, my parents, my teachers, my seniors and my friend’s for
helping me throughout this time.
SHUBHAM KAMAL
2nd year BA.LLB(HONS) 36

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 NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

TABLE OF CONTENTS

1. INTRODUCTION.

2. ARTICLE 13 OF CONSTITUTION OF INDIA.

3. ARTICLE 13 NOT RETROSPECTIVE IN EFFECT.

4. DOCTRINE OF SEVERABILITY.

5. RMDC ANALYSIS wrt DOCTRINE OF SEVERABILITY.

6. DOCTRINE OF ECLIPSE.

7. IS CONSTITUTIONAL AMMENDMENT A “LAW” UNDER ARTICLE 13?

8. CONCLUSION.

9. BIBLIOGRAPHY.

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 INTRODUCTION

This project work, is based on analysis of article 13 of the constitution of India more than it is
based on case analysis of the famous case R.M.D. Charambaughwala vs UOI. Article 13 talks
about the unconstitutionality of statutes valid or in derogation of the fundamental rights. Article
13(1) refers to pre-constitution laws while Article 13(2) refers to post- constitution laws. A law
is void if inconsistent with a Fundamental right. The study of this article is broadly classified
under subheadings, which explains all the aspects in relation to this article. An understanding of
all the provisions which renders a law unconstitutional and inconsistent with fundamental rights.
Article 13 of the constitution of India is thus analyzed in detail along with the doctrine of
severability. For the better understanding of this article, the subheadings and respective
provisions of this Article are provided with the relevant case law as already mentioned.

• Nature of the Provisions enshrined- Prospective or Retrospective.

• Doctrine of Severability
• Doctrine of Eclipse.
 Doctrine of Eclipse and Post-Constitutional Law.
 Meaning of “state”, “Law” and “Law in Force”.

OBJECTIVES OF STUDY

 To study and analyze article 13 of the constitution of India.

 Tu study and analyze the case R.M.D. Charambaughwala vs UOI.
 To study the doctrine of severability and doctrine of eclipse through the Article 13 of the
Indian Constitution.
 To study the meaning and basis of judicial review.

STATEMENT OF PROBLEM

Article 13 is not just an article it holds the base of the fundamental rights in the constitution. In
this project we will study how Article 13 acts like a guardian of public from legislative’s
arbitrary actions.

METHOD OF STUDY

Purely Doctrinal Method is used throughout the project.

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 ARTICLE 13 OF INDIAN CONSTITUTION

DEFINITION and ANALYSIS.

The main object of article 13 is to secure the paramountcy of the Constitution in regard to
fundamental rights. Article 13(1) declares that all laws in force in the territory of India
immediately before the commencement of this Constitution shall be void to the extent to which
they are inconsistent with the provisions of Part III of the Constitution.
Clause (2) of this article provides that the state shall not make any law which takes away or
abridges the fundamental rights conferred by Part III of the Constitution; and any law made in
contravention of fundamental rights shall, to the extent of contravention, be void.
Clause (3) of this article gives the term ‘law’ a very broad connotation which includes any
ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law.
Thus, not only the legislative enactment, but anything mentioned here can be challenged as
infringing fundamental right.
The object of the definition in article 13 is to ensure that instruments emanating from any
source of law—permanent or temporary, legislative or judgment or any other source—will
pay homage to the constitutional provision relating to fundamental rights as constitution is
the supreme law of the land.
At the same time, clause (4) seeks to ensure that a constitutional amendment does not fall within
the definition of law in article 13, and its validity cannot be challenged on the ground that it
violates a fundamental right. But it should be noted that fundamental rights as such, while not
immune from constitutional amendment, may, in some cases, form part of the theory of basic
features, enunciated in certain decisions by the Supreme Court.

ARTICLE 13 NOT RETROSPECTIVE IN EFFECT

Article 13(1) is prospective in nature. All pre- Constitution laws inconsistent with Fundamental
Rights will become void only after the commencement of the Constitution. They are not void ab
initio. Such invalidity by the courts will, however be necessary to make the laws invalid.
The Supreme Court in Keshava Madhav Menon v. State of Bombay 1, observed: “There is no
fundamental rights that a person shall not be prosecuted and punished for an offence committed
before the Constitution came into force. So far as the past Acts are concerned the law exists
notwithstanding that it does not exist with respect to the future exercise of the Fundamental
Rights.” In that case, a prosecution proceeding was started against the petitioner under the Press
(Emergency Powers) Act, 1931 in respect of a pamphlet published in 1949.
The present Constitution came into force during the pendency of the proceeding in the court.
The appellant contended that the Act was inconsistent with the fundamental rights conferred by
Article 19(1)(a) of the Constitution hence void, and the proceeding against him could not be
continued. The Supreme court held that Article 13(1), could not apply to his case as the offense
was committed before the present Constitution came into force and therefore, the proceedings
started against him in 1949 were not affected.

1
AIR 1951 SC 128: RabindraNath v. Union of India, AIR 1970 SC 470.
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The Supreme Court held that: “As the Fundamental Rights became operative only on and from
the date of the constitution, the question of the inconsistency of the existing laws with those
rights must arise from the date those rights came into being.....The voidness of the existing law
is limited to the future exercise of fundamental rights. Article 13(1) cannot be read as
obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from
the statute book, for to do so will be to give them retrospective effect which, we have said, they
do not possess.”
This does not mean that a discriminatory procedure laid down by the a preconstitution Act is to
be followed in respect of pending proceedings or in respect of new proceedings started in
respect of pre-constitution rights or liabilities. Though the substantive rights and liabilities
acquired or accrued before the date of the Constitution remain enforceable, nobody can claim
his rights and liabilities to be enforced under a particular procedure which becomes inconsistent
with fundamental rights2.

Part-xx Article 368 (1) of the Constitution of India grants constituent power to make formal amendments and

empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according
to the procedure laid down therein, which is different from the procedure for ordinary legislation.

2
Lachmandas v. State of Bombay, AIR 1952 SC 235.
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 DOCTRINE OF SEVERABILITY
When a part of the statute is declared unconstitutional then a question arises whether the whole
of the statute is to be declared void or only that part which is unconstitutional should be declared
as such. To resolve this problem, The Supreme Court has devised the doctrine of severability or
separability. This doctrine means that if an 3w Article 13 of the constitution uses the words “to
the extent of such inconsistency be void” which means that when some provision of the law is
held to be unconstitutional then only the repugnant provisions of the law in question shall be
treated by courts as void and not the whole statute3.

The supreme court has explained the doctrine as follows in RMDC.

R. M. D. CHAMARBAUGWALLA VS THE UNION OF INDIA.

RMDC is a very prominent case where the Doctrine of severability of article 13 of the Indian
Constitution was further interpreted and the ambit of this Article was broadened by the
judgement given by the Supreme Court judges (5-judge bench):

5 JUDGE BENCH:

AIYYAR, T.L. VENKATARAMA.

DAS, SUDHI RANJAN (CJ)
SINHA, BHUVNESHWAR
P. DAS, S.K.
GAJENDRAGADKAR, P.B.
ACT: Prize Competition--Definition-- Construction-- If includes Competition other than of a
gambling nature--Validity of enactment- -Principle of severability--Application--Prize
Competitions Act, (42 of 1955), ss. 2(d), 4, 5, rr. 11, 12.

FACTS OF THE CASE The petitioners, who were promoting 'and conducting prize
.competitions in the different States of India, challenged the constitutionality Of ss. 4 and 5 Of
the Prize Competitions Act (42 of 955) and rr. xi and 12 framed under S. 20 Of the Act. Their
contention was that 'prize competition' as defined in S. 2(d) of the Act included not merely
competitions that were of a gambling nature but also those in which success depended to a
substantial degree on skill and the sections and the rules violated their fundamental right to carry
on business, and were unsupportable under Art. 19(6) of the Constitution, that they constituted a
single in severable enactment and, consequently, must fail entirely.

On behalf of the Union of India this was controverted and it was contended that the definition,
properly construed, meant and included only such competitions as were of a gambling nature,
and even if that was not so, the impugned provisions, being severable in their application, were
valid as regards gambling competitions. Held, that the validity of the restrictions imposed by SS.
4 and 5 and r r. ii and 12 of the Act as regards gambling competitions was no longer open to
3
3Motor General Traders v State of A.P., (1984) 1 SCC 222.
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challenge under Art. 19(6) of the Constitution in view of the, decision of this Court that
gambling did not fall within the purview of Art. 19(i) (g) of the Constitution.

Even assuming that prize competition as defined by S. 2(d) of the Act included not merely
gambling competitions but also others in which success depended to a considerable degree on
skill, the restrictions imposed by ss. 4 and 5 and rr. ii and 12 of the Act were clearly severable in
their application to the two, distinct and separate categories of competitions and, consequently,
could not be void as regards gambling competitions.

The principle of severability is applicable to laws enacted by legislatures with limited powers of
legislation, such as those in a Federal Union, which fall partly within and partly outside their
legislative competence, where the question arises as to whether the valid can be separated from
the invalid parts and that is a question which has to be decided by the Court on a consideration
of the entire provisions of the Act. There is, however, no basis for the contention that the
principle applies only when the legislature exceeds its powers as regards the subject-matter of
legislation and not when it contravenes any constitutional prohibitions.

THE SUPREME COURT HAS LAID DOWN THE FOLLOWING PROPOSITIONS AS

REGARD OF DOCTRINE OF SEVERABILITY:

1. The intention of legislature is the determining factor in determining whether the valid part of
a statute are separable from the invalid parts. The test is that whether the legislature would have
enacted the valid parts had it known the rest statute was invalid. The test of severability requires
the court to ascertain whether the legislature would have enacted the law if severed part was not
part of the law.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from another, then the invalidity of a portion must result in the invalidity of the Act in its
entirety. On the other hand, if they are so distinct and separate that after striking out what is
invalid what remains is itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest had become unenforceable.

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

4. 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.

5. The severability of the valid and invalid provisions of a statute does not depend on whether
provisions are enacted in the same section or different section, 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.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced
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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.

7. In determining the legislative intent on the question of severability, it will be legitimate to

take into account the history of the legislation, its objects, the title and the preamble to it.

R.M.D.C case involved the prize competitions act which was broad enough to include
competition of a gambling nature as well as those involving skills. Under 19(1) (g), parliament
could restrict prize competition only of a gambling nature but not those of involving skill.
Holding that application of the act be restricted to the former, the court stated the parliament
would have still enacted the law to regulate competitions of gambling nature, nor did restricting
the act to this kind of competitions affects its texture or colour. The provisions of act were thus
held severable in their application to competitions in which success did not depend to any
substantial extent on skill.

The Supreme Court held that the provision of the Act was severable and struck down those
provision which related to competition not involving skill. The court in R.M.D.C. case held that
where after removing the invalid provision what remains constitutes a complete Code there is no
necessity to declare the whole Act invalid, the intention of the Legislature 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. But if what remains on the statute book cannot
be enforced without making alteration the whole Act should be declared as void. Severability is
the question of substance and not form, and in determining the intention of the Legislature it is
legitimate to take into account the history of the legislation and the object as well as the title and
preamble. In taxation laws where taxes are imposed on subjects which are divisible in nature and
some of the subjects are exempt from taxation the taxation statute will not be wholly void. It can
be declared void only with regard to those subjects to which a constitutional exemption is
attracted.

In R.M.D.C. v. Union of India, AIR 1957 SC 628, the constitutionality of the Prize Competitions Act 1955, was
challenged on the ground that it violated the Fundamental Right of the petitioners secured by Article 19(1(g). The
impugned Act, provided for the control and regulation of prize competitions. It was contended that Section 2(d)
of the impugned Act which defined the expression "prize competitions" included not only competitions of a
gambling nature but also those in which success to a substantial degree depends on skill. Having regard to the
circumstances under which the impugned Act was passed, the Supreme Court held that it was to control and
regulate prize competitions of a gambling character. Therefore, the Court stated that the application of impugned
provision of the Act could be restricted to the competitions of gambling character. The provisions of the impugned
Act were thus held severable in their application to competitions, in which, success did not depend, to any
substantial extent, on skill. The Court held that when a Statute, was in part, void, it would be enforced as regards
the rest, if that was severable from what was invalid.

Moreover article 13(1) is prospective in nature but not retrospective i.e the article will be in effect from the day
when constitution came in effect ..(26th jan.,1950) and the person who committed offence afterwards will be
prosecuted according to the laws of Indian constitution but not according to the pre-constitutional laws.

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.
DOCTRINE OF ECLIPSE
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The doctrine of Eclipse is based on the principle that a pre constitutional law which violates
fundamental rights is not nullity or void ab initio but becomes only unenforceable, i.e., remains
in a moribund condition. “It is overshadowed by the fundamental rights and remains dormant;
but it is not dead4.” Such laws are not wiped out entirely from the statute book. They exist for all
past transactions, and for the enforcement of rights acquired and liabilities incurred before the
present constitution came into force and determination of right of persons who have not been
given fundamental rights by the constitution, e.g., non-citizens 5. It is only against the citizens
that they remain in a dormant or moribund condition but they remain in operation as against
non-citizens who are not entitled to fundamental rights6.

Can such a law which becomes unenforceable after the constitution came into force be again
revived and made effective by an amendment in the constitution?

It was to solve this problem that the Supreme Court formulated the doctrine of eclipse in Bhikaji
v. State of M.P7. In that case provision of C.P. and Berar Motor Vehicle (Amendment) Act,
1947 authorised the State Government to make up the entire motor transport business in the
Province to the exclusion of motor transport operators. This provision, though valid when
enacted became void on the coming into force of the Constitution in 1950 as they violated
Article 19(1)(g) 8of the constitution. However, in 1951, Clause(6) of Article 19 was amended by
the constitution (1st Amendment) Act, so as to authorise the Government to monopolise any
business. The Supreme Court held that ‘the effect of the Amendment was to remove the shadow
and to make the impugned Act free form all blemish or infirmity’. It became enforceable against
citizens as well as non-citizens after the constitutional impediment was removed. This law was
merely eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed
the law begins to operate from the date of such removal.

IS CONSTITUTIONAL AMENDMENT A ‘LAW’ UNDER

4
Bhikaji Narayan v. State of M.P. AIR 1955 SC 781.
5
KeshavMadhav Menon v. State of Bombay, AIR 1951 SC 128 at pp. 599-600.
6
State of Gujarat v. Sri Ambica Mills, AIR 1974 SC 1300
7
AIR 1955 SC 781.
8
Right to practise any profession, or to carry on any occupation, trade or business.
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 ARTICLE 13(2)?
The question whether the word ‘law’ in clause (2) of Article 13 also includes a ‘constitutional
amendment’ was for the first time considered by the Supreme Court in Shankari Prasad v
Union of India9. The court held that the word ‘law’ in clause (2) did not include law made by
parliament under Article 368. The word ‘law’ in Article 13 must be taken to mean rules or
regulations made in exercise of ordinary legislative power and not amendments to the
constitution made in exercise of Constitutional power and, therefore Article 13(2) did not affect
amendments made under Article 368. This interpretation of Shankari Prasad’s case was
followed by the majority in Sajjan Singh v. State of Rajasthan10. But in Golak nath v State of
Punjab11, the Supreme Court overruled its decision in the aforesaid cases, and held that the
word ‘law’ in article 13(2) included every branch of law, statutory, Constitutional, etc.,
and hence if an amendment to the Constitution took away or abridged fundamental right
of citizens, the amendment would be declared void.

In order to remove the difficulty created by the Supreme Court’s decision in Golak Nath’s
case the constitution (24th Amendment) Act, 1971 was enacted. By this amendment a new
clause (4) was added to article 13 of the constitution which makes it clear that
constitutional Amendments passed under Article 13 and, therefore, cannot be challenged
as infringing the provisions of Part III of the Constitution. The validity of the Constitution
(24th Amendment) Act, 1971 was considered by the supreme court in Kesavnanda Bharati
case12. The court overruled the Golak Nath case and upheld the validity of the said amendement.

CONCLUSION
9
AIR 1951 SC 458.
10
AIR 1965 SC 845.
11
AIR 1967 SC 1643.
12
AIR 1973 SC 1461.
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In the Indian constitution, Judicial review is dealt with under Article 13. Judicial Review refers
that the Constitution is the supreme power of the nation and all laws are under its supremacy.
Article 13 states that:

All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have
all conflicting provisions deemed ineffective until an amendment to the Constitution ends the
conflict. In such situation the provision of that law will again come into force, if it is compatible
with the constitution as amended. This is called the Doctrine of Eclipse.

In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly
must be compatible with the constitution, otherwise the laws and amendments will be deemed to
be void ab initio.

In such situations, the Supreme Court or High Court interprets the laws to decide if they are in
conformity with the Constitution. If such an interpretation is not possible because of
inconsistency, and where a separation is possible, the provision that is inconsistent with
constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a
constitutional basis to judicial review in India.

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 BIBLIOGRAPHY
SITE REFERENCES

http://en.wikipedia.org/wiki/Constitution_of_India

http://www.vakilno1.com/bareacts/constitution/constitutionofindia.html

http://www.lawnotes.in/Article_13_of_Constitution_of_India

BOOK REFERENCES

V.N. SHUKLA-CONSTITUTION OF INDIA.

M.P. JAIN (10thEdn)- CONSTITUTION OF INDIA.

STUDY MATERIAL- CONSTITUITIONAL LAW-II

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