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What are the Doctrines under the Indian Constitution?

What are Doctrines?

Doctrines are “a rule, principle, theory, or tenet of the law; as, the
doctrine of merger, the doctrine of relation, etc”.What are the
Doctrines applied under the Indian Constitution?
The doctrine of Pith and Substance

• It arises when there is a conflict between two or different subject matters of different list.
• There can be circumstances in which subject matter of list 1 clashes with the subject matter
of list 2. Hence, this doctrine is applied in this kind of situation.
• The main reason behind the adoption of this doctrine of pith and substance is that the
powers of the legislature would be severely limited if every law were to be declared invalid
on the ground that it infringes power.
• According to this doctrine, it is examined to check its“true nature and character” in order
to ascertain in what list it falls.
• It provides a degree of flexibility. It is widely used in determining whether the state is
within its power to make statute which involves a subject mentioned in the union list of the
constitution.
• It is applied in the case State of Bombay Vs F.N Balasar,[1] by the supreme court. This
was the first important judgment which upheld the pith and substance.

The doctrine of Colourable Legislation

• It is based upon the doctrine of power separation. Separation of power mandates to strike power
of balance between different state components.
• It is based on the maxim that “what cannot be done directly, cannot also be done indirectly”.
• This doctrine of colourable legislation is applied when a Legislature does not have the right
to make law upon a particular subject but indirectly makes one.
 • The Court has laid down certain tests for discovering whether any particular Act constitutes
colourable legislation.

(a) The court must not look into its form or the label but the substance of the law which the
legislature has given it.

(b) The court must look at the object as well as the effect of the law.

(c) If the legislature proceeds under a legislative plan the court must read all the statutes
constituting that plan and determine the combined effect.

• Application of this Doctrine: K.C. Gajapati Narayana Deo And Other v. The State Of
Orissa,[2] “If the Constitution of a State distributes the legislative powers amongst
different bodies, which have to act within their respective spheres marked out by specific
legislative entries, or if there are limitations on the legislative authority in the shape of
fundamental rights, questions do arise as to whether the legislature in a particular case has
or has not, in respect to the subject-matter of the statute or in the method of enacting it,
transgressed the limits of its constitutional powers”.

The doctrine of Basic Structure

• According to India’s Constitution, the parliament cannot alter or destroy certain basic
features in the constitution.
• The basic features of the Indian Constitution have not been clearly defined by the Judiciary.
The claim of any specific feature of the Constitution to be a “basic” feature is determined
by the Court on the basis of the cases.
• Landmark cases: Shankari Prasad vs Union of India,[3] “It was challenged that
Amendment that takes away the fundamental right of the citizens is not allowed by article
13. It was argued that “State” includes parliament and “Law” includes Constitutional
Amendments. It was held that ‘Law’ in Article 13 is ordinary law made under the
legislative powers. And therefore, the parliament has the power to amend the constitution.”

However, in Golak Nath V State of Punjab,[4] the Supreme Court adopted a new vision to see the
powers of parliament that it cannot amend the part III of the constitution i.e Fundamental rights.
In Keshavanada Bharti V State of Kerala,[5] the court held that the parliaments cannot alter or
disturb the constitution’s basic structure. It was held that, however, the parliament has unfettered
power to amend the constitution, but it can not disturb or emasculate the basic structure or
fundamental features of the constitution, as it only has the power to amend and not to rewrite the
constitution.

The doctrine of Harmonious construction

• It states that a provision of the statute should not be interpreted or construed in isolation but as
a whole, so as to remove any inconsistency or repugnancy.
• It brings harmony between the various lists referred to in Indian Constitution Schedule 7. In CIT v.
Hindustan Bulk Carriers,[6] the supreme court stated five important principles and they are: The
courts must avoid a clash on contradicting provisions and they must construe the opposing
provisions so as to harmonize them.
• The provision of two sections respectively cannot defeat each other unless the court, despite all
its effort, is unable to find a way to reconcile their differences.
• When it is difficult to totally reconcile the distinctions in the conflicting provision, the courts must
decipher them in such a way so that effect is given to both the provisions as much as possible
• The courts must also keep in mind, the interpretation that makes the provision ambiguous or
useless is not harmonious construction.
• To harmonize is not to destroy any statutory provision or to make it pointless.

Doctrine of Eclipse

• It is dealt under Article 13(1) of the Indian Constitution.

• It states that any rule which interferes with the fundamental rights is invalid.
• The doctrine of eclipse means that an existing law that is inconsistent with a fundamental right,
although it becomes inoperative from the date of the constitution’s beginning, is not entirely
dead. By amending the constitution’s relevant fundamental rights, the conflict can be eliminated
so that the eclipse vanishes and the entire law becomes valid. The first case in which this doctrine
was applied was Bhikaji vs State of Madhya Pradesh.[7]

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Doctrine of Severability

• According to the doctrine of severability, if there is any offending part in the statute then the only
offending part is declared void and not the entire statute. The rest remains operative. Under
article 13, it is given that only offending part in a statute is void and not the whole statute.
• This doctrine has been thus summarized by the Supreme Court in the following manner:
• If the valid and invalid provisions cannot be separated from one another then the entire act
becomes invalid.
• If the valid and invalid portions from a single scheme which is intended to be operative as
a whole then the invalidity of a part results in invalidity of the whole
• Where the valid and invalid parts are independent and do not form a scheme but after
omitting the invalid part what is left would be entirely different from what emerged from
the legislature then it is invalid in its entirety.
• If after excluding the invalid portion what remains cannot be enforced then the whole Act
becomes invalid.
• If the invalid part is separate in its operation from the other parts then only the invalid part
is so declared. The rest is severed and remains operative.
• The effect of the application of the doctrine is that the Act is void in parts. That portion
which is not void survives.
• In RMDC vs. UOI, [10] the Supreme court states that the doctrine of severability is a matter
of substance and not of form.

Doctrine of Waiver

• In this, a person intentionally gives up his right or privilege or chooses not to exercise his
right or privilege which are conferred on him by the state.
• In Basheshar Nath v. Commissioner of Income Tax,[12] the Supreme Court held that
fundamental rights of a person cannot be waived.
• In Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation &
Ors,[13] the court said that everyone has the right to waive an advantage or protection that
seeks to give him. For instance, in the case of a tenant-owner dispute, if a notice is issued
and no representation is made either by the owner, tenant or sub-tenant, it would be a
waiver of opportunity and that person can not be allowed to turn around at a later stage.
The doctrine of Judicial Review

• It is of American origin. The doctrine of judicial review refers to the power of the Judiciary to
interpret the law and to declare law which is inconsistent with constitution void.
• According to this doctrine, Executive and the Legislature’s review power is with Judiciary.
It is for checking the exercise of the power of public authorities, whether they are
constitutional, quasi-judicial or governmental. For example, if there is a law enacted, and
the Constitutionality is challenged, the Judiciary has the power to strike down the law. This
means that the judiciary is guarding the Constitution and protecting it from any Executive
or Legislative action which might violate it.
• Both the Supreme Court and the High Court exercise the power of the Judicial Review.
But the final power to determine the constitutional validity of any law is in the hands of
India’s Supreme Court.
• It can be conducted in respect of all Central and State laws, the orders and ordinances of
the executives and constitutional amendments.
• It cannot be conducted in respect of the laws in Schedule 9 of the Indian Constitution.[14]

Doctrine of Due process of law

• It not only examines that there is any law to deny life and individual freedom but also
checks if the law made is reasonable, just and not arbitrary.
• If the Supreme Court finds any law to be not fair, it will declare it void. Individual rights
can be treated more fairly with the help of this doctrine.
• Under this doctrine, the state should respect all the legal rights owed to a person by the
state as it is a legal requirement and laws that states enact must conform to the laws of the
land like – fairness, fundamental rights, liberty, etc.
• In Maneka Gandhi vs Union of India,[15] the court while delivering the judgement used
“Procedure established by law” instead of “Due process of law” however it must be ‘ right
and fair and fair ‘ and ‘ not arbitrary, fanciful or oppressive, ‘ otherwise it would not be a
procedure at all and the requirement of Article 21 would not be met.
Difference between procedure established by law and due process of law.

Procedure established by law Due process of law

It means that a law that is duly enacted by the It not only checks if there is a law to deprive the life
legislature or the concerned body is valid if it and personal liberty of a person but also see if the law
has followed the correct procedure. made is fair, just and not arbitrary.

It does not assess whether Parliament’s laws It checks laws made by the parliament is just, fair and
are fair, just and not arbitrary. arbitrary.

A law duly enacted is valid even if it’s contrary If the Supreme Court finds that any law as not fair, it
to principles of justice and equity. will declare it as null and void.

It means that a law duly enacted is valid even It is the legal requirement that the State respect all the
if it is contrary to the principles of justice and legal rights due to a person and the laws enacted by
equity. the State must comply with the laws of the land.

The doctrine of Constitutional Morality

• The doctrine of constitutional morality is an emphatic guarantee that the Supreme Court of
India is committed to protecting all minorities, despite opposition from majoritarian
governments.
• Second, the doctrine of constitutional morality led the Court to hold that it plays a counter-
majoritarian role within the constitutional scheme.

2nd explanation

Doctrine of Basic Structure

The basic structure doctrine is an Indian judicial principle that the Constitution
of India has certain basic features that cannot be altered or destroyed through
amendments by the parliament.
But what should be considered as the basic features of the Indian Constitution
is not explicitly defined by the Judiciary. It is widely believed that democracy,
federalism, independence of the judiciary, secularism etc. are part of the basic
features.

The claim of any particular feature of the Constitution to be a “basic” feature is

determined by the Court on a case-by-case basis.

This doctrine was first expressed in Kesavananda Bharati v. The State of

Kerala (1973). Thanks to Kesavananda Bharati, Palkhivala and the seven
judges who were in the majority, India continues to be the world’s largest
democracy.

Doctrine of Harmonious Construction

• This doctrine was brought about to bring harmony between the different
lists mentioned in the Schedule 7 of the Constitution of India. Different
subjects are mentioned in different lists in this schedule.
• However, there can be a situation where an entry of one list overlaps
with that of another list. This is the time when this doctrine comes into the
picture.
• It was said that the words of the entries should be given wide amplitude
and the courts shall bring harmony between the different entries and
lists.
• Supreme Court applied this Doctrine in the case of Tika Ramji vs the
State of UP.

Doctrine of Eclipse

• The doctrine states that if any law becomes contradictory to

the fundamental rights, then it does not permanently die but becomes
inactive.
• As soon as that fundamental right is omitted from the Constitution, the
inactive law becomes revived.
• When a court strikes a part of the law, it becomes unenforceable. Hence,
an ‘eclipse’ is said to be cast on it. The law just becomes invalid but
continues to exist.
 • The eclipse is removed when another (probably a higher level court)
makes the law valid again or an amendment is brought to it by way of
legislation.
• Supreme Court first applied this doctrine in the case of Bhikaji vs State
of Madhya Pradesh where it applied to pre-constitutional law. The
extension to the post-constitutional law was stated in the case of Dulare
Lodh vs ADJ Kanpur.

Doctrine of Pith and Substance

• This doctrine comes into picture when there is a conflict between the
different subjects in different lists. There is an interpretation of List 1 and
List 2 of the Constitution of India.
• There can be a situation when a subject of one list touche the subject of
another List. Hence this doctrine is applied then.
• Pith and Substance means the true nature of law.
• The real subject matter is challenged and not its incidental effect on
another field.
• The doctrine has been applied in India also to provide a degree of
flexibility in the otherwise rigid scheme of distribution of powers.
• The reason for the adoption of this doctrine is that if every legislation
were to be declared invalid on the grounds that it encroached powers,
the powers of the legislature would be drastically circumscribed.
• It was applied by the Supreme Court in the case State of Bombay Vs
F.N Balasar.

Doctrine of Incidental or Ancillary Powers

• This principle is an addition to the doctrine of Pith and Substance.

• What it means is that the power to legislate on a subject also includes
the power to legislate on ancillary matters that are reasonably connected
to that subject.
• For example, the power to impose tax would include the power to search
and seizure to prevent the evasion of that tax. However, power relating to
banking cannot be extended to include power relating to non-banking
entities.
• However, if a subject is explicitly mentioned in a State or Union list, it
cannot be said to be an ancillary matter. For example, the power to tax is
 mentioned in specific entries in the lists and so the power to tax cannot
be claimed as ancillary to the power relating to any other entry of the
lists.
• As held in the case of State of Rajasthan vs G Chawla AIR 1959, the
power to legislate on a topic includes the power to legislate on an
ancillary matter which can be said to be reasonably included in the topic.
• However, this does not mean that the scope of the power can be
extended to any unreasonable extent. Supreme Court has consistently
cautioned against such extended construction. For example, in R M D
Charbaugwala vs State of Mysore, AIR 1962, SC held that betting and
gambling is a state subject as mentioned in Entry 34 of State list but it
does not include power to impose taxes on betting and gambling
because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation

• This is applied when the legislature enacting the law has transgressed its
power as is mentioned in the Constitution.
• The expression “colourable legislation” simply means what cannot be
done directly, cannot be done indirectly too.
• It is the substance that is material and not the outward appearance.
• Hence there are certain situations when it seems that it is within the
power of the legislature enacting the law but actually it is transgressing.
This is when this doctrine comes into the picture.
• It was applied by the Supreme Court of India in the case State of Bihar
vs Kameshwar Singh and it was held that the Bihar Land Reforms Act
was invalid.

Doctrine of Severability

• According to this doctrine, if there is any offending part in a statute, then,

only the offending part is declared void and not the entire statute.
• Article 13 states that the portion that is invalid should be struck off and
not the entire one. The valid part can be kept.
• However, it should be kept in mind that even after separation; the
remaining part should not become ambiguous.
• If the remaining part becomes ambiguous, then the whole statute would
be declared void and of no use.
 • Supreme Court in the case of RMDC vs. UOI states that doctrine of
severability is a matter of substance and not of form.

Doctrine of Territorial Nexus

• Article 245 states that a state legislature can make laws on the territory
of the state and not on extraterritorial laws provided there is nexus or
connection between the sate and the object of the legislation.
• Article 245(1) states that the Parliament of India can make laws for the
whole or any territory of India.
• Similarly, a state legislature can do the same.
• Such laws cannot be declared invalid on the growth that they are
extraterritorial according to Article 245(2).
• To determine whether a particular legislation is within the territorial nexus
or not, this doctrine is applied.
• Supreme Court applied this doctrine in the case of Tata Iron Steel vs.
the State of Bihar.

Doctrine of Laches

• Laches means delay. The doctrine of laches is based on the maxim that
“equity aids the vigilant and not those who slumber on their rights.”
(Black’s Law Dictionary).
• The outcome is that a legal right or claim will not be enforced or allowed
if a long delay in asserting the right or claim has prejudiced the adverse
party.
• Elements of laches include knowledge of a claim, unreasonable delay,
neglect, which taken together hurt the opponent.
• It is well known that one who wants remedy must come before the court
within a reasonable time.
• Lapse of time violates equity and it is against the concept of justice.
• Hence the issue came up whether delay can be a ground to deny
fundamental rights under Article 32.
• It was said that denial of fundamental rights only on the ground of delay
is not justified as fundamental rights are basic and very essential for the
development of the individual.
• Supreme Court under the case of Ravindra Jain vs UOI stated that
remedy under article 32 can be denied on grounds of unreasonable
delay. However, there has been no case to overrule the above-
mentioned case law by the Supreme Court order.