Law’ and ‘Laws in force’. For the purposes of Article 13.

“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. Though the term
“law” includes all ‘laws in force’, i.e.. custom. Usage, etc. having the force of law,
personal laws of Hindus, Muslims and Christians are excluded from the definition
of “law” for the purpose of this Article.
The view that the strict rule enjoined by the Smriti writers as a result of which
Sudras were considered to be incapable of entering the orders of Yati or Sanyasi,
has ceased to be valid because of the fundamental rights guaranteed under Part III
is not correct. Part III does not touch upon the personal laws of parties.
‘Laws in force’ denote all prior and existing laws passed by the Legislature or other
competent authority which have not been repealed notwithstanding the fact that are
not in operation wholly or in part throughout India or part thereof. The term
‘existing law’ includes a wider range, such as, ordinance, orders, bye-laws, rules or
regulations by Legislature or other authorised body or person. Thus an ordinance
issued by the President under Article 123 or by the Governors under Article 213, a
Government notification a bye-law of a municipal body are all laws in force. The
term ’having the force of law means rule of conduct should be called a law it must
be established that it has a force of law.
In 2018, Indian Young Lawyers Association v. The State Of Kerala, also called the
Sabarimala Case, dealt with the same question. The Court, in this case, said that the
�individual’ is at the heart of the Indian Constitution, and as far as any law
affected the individual, it could fall under Article 13(3).
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 offending provision can be separated from that which is constitutional
then only that part which is offending is to be declared as void and not the entire
statute. 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 statute.2

In A.K. Gopalan v. State of Madras, the Supreme Court while declaring Section
14 of the Preventive Detention Act, 1950, as ultra vires, observed: “The impugned
Act minus this section can remain unaffected. The omission of the section will not
change the nature or the structure of the subject of the legislation. Therefore, the
decision that Section 14 is ultra vires does not affect the validity of the rest of the
Act. Similarly, in State of Bombay v. Balsara, a case under Bombay Prohibition.
Act, 1949, it was observed that the provisions which have been declared as void do
not affect the entire statute, therefore, there is no necessity for declaring the statute
as invalid.”

This is, however, subject to one exception. 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, then the courts will hold the entire Act, void. The
primary test is whether what remains is so inextricably mixed with the part
declared invalid that what remains cannot survive independently. The Supreme
Court observed in Romesh Thappar v. State of Madrass that: “Where a law
purports to authorise the imposition of restrictions on a Fundamental Right in
language wide enough to cover restrictions, both within and without the limits
provided by the Constitution and where it is not possible to separate the two, the
whole law is to be struck down. So long as the possibility of its being applied for
purposes not sanctioned by the Constitution cannot be ruled out, it must be held to
be wholly void.”
The doctrine of severability was discussed at length in the case of R.M.D.C v. the
State of Bombay, and the court laid down the following principles.

 In order to find out whether the valid part of the statute can be separated
from the invalid part, the intention of the legislature is the determining
factor.
 In case the valid and non-valid parts of a particular statute are inseparable
then it will invariably result in the invalidity of the entire statute.
 When the statute stands independently after the invalid portion is struck out
then it will be upheld, notwithstanding that the rest of the Statute has
become unenforceable.
 In cases where the valid and invalid parts are separable but both of them
were intended to be part of the same scheme, then the whole scheme will be
invalid.
 There may be instances where the valid and invalid parts are separable and
not part of the same scheme, however, invalidating the valid part leaves the
rest too thin and truncated, then also it will be invalidated as a whole.
 Severability is to be determined by reading the statute as a whole and not
specific provisions or parts.
 In order to find the legislative intent behind a statute, it will be legitimate to
take into account the history, object, title and preamble.
In State of Bombay v. FN Balsara, it was held that the violative provisions of the
Bombay Prohibition Act, 1949, do not affect the validity of the entire Act and thus
there was no need to invalidate the statute altogether.
The Supreme Court declared Sections 4 and 55 of the 42 nd Constitutional
Amendment Act invalid, for being beyond the amending powers of the
Constitution but held the rest of the Act valid.

In Kihoto Hollohan v. Zachillu, the Court upheld the validity of the Tenth
Schedule while striking down its paragraph 7 for violating the provisions of Article
368(2).
Conclusion
The doctrine of severability opens up the way for the applicability of judicial
review. The courts through judicial review invalidate the laws which infringe upon
the fundamental rights of individuals. When an individual contends that a
particular legislation is taking away his/her fundamental rights, and invokes the
Court’s right to judicially review that decision, the burden of proof lies on him/her
for proving how the impugned legislation has interfered with his/her rights.

The doctrine of severability is a principle of great eminence in the Indian

constitutional setup. It is the touchstone against which the validity of laws is tested.
It is a check on the unfettered powers of the legislature which if left on its own has
the capability of going rogue and invading the very basic rights guaranteed to
individuals

Doctrine of Eclipse
The doctrine of eclipse is based on the principle that a 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 over-shadowed by the
fundamental rights and remains dormant; but it is not dead.” 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 for determination of right of persons who have
not been given fundamental rights by the Constitution, e.g., non-citizens. It is only
as 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 rights.
There were several existing laws at the time when the Constitution was adopted,
some of which were in direct conflict with fundamental rights, so in order to
determine the validity of these laws the Supreme Court came up with certain
principles/doctrines, one of which was the Doctrine of Eclipse.
This doctrine emanates directly from Article 13(1) of the Constitution that is a part
of the fundamental rights, which states, “all laws in force in the territory of India
immediately before the commencement of this Constitution in so far as they are
inconsistent with the provisions of this Part, i.e. Part III, shall, to the extent of such
inconsistency, be void.”
The doctrine of eclipse envisages fundamental rights as prospective in nature.
 It states that a pre-constitutional law inconsistent with the fundamental rights
is not a nullity or void ab initio but only remains unenforceable, i.e., remains
in a dormant state.
 They exist for all past transactions, i.e., for rights and liabilities that were
acquired before the Constitution came into being.
 These laws also remain applicable to individuals who have not been given
fundamental rights, for example, non-citizens.
 Therefore, the impugned law remains hidden behind the fundamental rights
and can become operative again if and when the fundamental right it is
inconsistent with is amended.
In the Keshav Madhav Menon v. State of Bombay case, the petitioner was
prosecuted under the provisions of the 1931 act, the Indian Press (Emergency
Powers) Act, for publishing a pamphlet with no permission. the case was still
pending when the Constitution came into force and thus raised questions regarding
the prospective and retrospective nature of Article 13(1) and the word “void”. The
question before the Court was whether the impugned Act was violative of Article
19(1) (a) and if so whether it should be declared void. The Court answered the first
part in affirmative adding that the Act is void only to the extent of the violation and
that the word “void” used in Article 13 does not mean that statutes or provisions
shall be repealed altogether.
In the case of FN Balsara, the Court declared Section 13(b) of the Bombay
Prohibition Act of 1949 as void because it violated Article 19(1) (f) of the
Constitution. The Court again held that only the part of the statute that is violative
of Part III is inoperative and not the whole Statute.
It Is generally agreed, however, that the actual genesis of this doctrine occurred in
Bhikaji Narain Dhakras v. State of Madhya Pradesh. In this case, the C. P. and
Berar Motor Vehicles Amendment Act of 1947 was challenged for being violative
of Article 19(1) (g). This amendment act was a pre-constitutional law. Thus, the
Doctrine of Eclipse was applied and the Act’s provisions were made inoperative.
However, in the year 1951, by virtue of the 1 st Constitutional Amendment Act,
Article 19(1) (g) was amended and the eclipse was removed, rendering this law
enforceable against citizens and non-citizens. According to the Court, “the effect of
the amendment was to remove the shadow and to make the impugned Act free
from all blemish or infirmity
Features
 The doctrine only applies to pre-constitutional laws that were valid at their
inception.
 The doctrine is not applicable to post-constitutional laws since they are
invalid from the very inception because of being inconsistent with Part III;
the same was held by the Supreme Court in Deep Chand v. State of Uttar
Pradesh. However, non-citizens can’t take any advantage of the rule as the
violation doesn’t impact them.
 The impugned law must be violative of the fundamental rights, and then
only can it be hidden or eclipsed.
 The law that turns out to be violative of Part III does not become a nullity
but just remains unenforceable & defective.
 If the fundamental right that is violated by the impugned law is amended in
the future, the law automatically becomes operative.

Is Constitutional amendment a law’ under 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 India. 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 Rajasthan. But in Golak Nath v. State of
Punjab, 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 368 shall not
be considered as “law’ within the meaning of 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 Kesavananda Bharati case. The Court overruled the Golak Nath case and
upheld the validity of the said amendment.