Group 2: Article 13, Eclipse, Severability, Waiver and Retrospective Application

MINUTES OF THE CLASS

Art 13

Introduction to constitutional judicial review:

·      It lays down the procedure of judicial review to be followed when Part III of the constitution is violated. This procedure of Article 13 is called constitutional judicial review. 

Constitutional judicial review is different from normal judicial review.

·      In constitutional judicial review, judges don’t just interpret the act, but they have the power to strike down an act itself.

What can be done to override the judiciary in a constitutional matter? Propose an amendment.

Art 37

Why are Fundamental Rights(FR) enforceable but Directive Principles of State Policy(DPSP) non-enforceable?

·      Article 37 of the Indian Constitution states that although DPSPs are of fundamental value, they aren’t enforceable. 

·      DPSPs are guidelines for the executive and the legislature. 

Ninth schedule: Every piece of legislation in ninth schedule falls outside the scope of constitutional review (e.g. land reforms put into ninth schedule). This was used by Nehru for land reforms, security laws during the emergency etc. 

To what extent does the ninth schedule links the Parliamentary Sovereignty (Article 31B). 

                                

Tussle between the judiciary and legislature:

·      Art 31  B - saving clauses- if specific legislation is for the implementation of DPSP then constitutional judicial review is set aside. The parliament is in charge and the judiciary cannot intervene. 

·      Nehru: “No SC and no judiciary can stand in judgement over the sovereign will of the Parliament. No judge can be a third chamber. The judiciary cannot come in the way, and if it does, the whole Constitution is a creature of the Parliament.”

·      Dr. Ambedkar calms this tussle down by bringing the 2/3 rd majority rule.

Basic structure even applies to ninth schedule, but it did not exist in 1950s 

Parliamentary Sovereignty V Constitutional Judicial Review (CJR)

·      Discussion on the two opposing models. UK follows parliamentary sovereignty. India opts the power of Judicial Review, like the US.

·      UK depends solely on the parliament for the legislation (Parliamentary Sovereignty only)

·      It gives power to the parliament to do what it wants. Everything starts by the word of the parliament

·       In 1688, The parliament of UK made itself sovereign. Which meant that anything that happened from now on had to go from the parliament and not the king- (What about Brexit? Brits couldn’t come to terms with the overruling of the parliament by the European CJ which affected their parliamentary sovereignty)

Constitutional Judicial Review (CJR) born in the USA

US Constitution -1789 after the Boston Tea Party

·      US came with the idea of Fundamental Rights and adopted the federal structure. 

·      The constitution of the USA does not have anything like Art 32 or Art 13.

·      So, how do they enforce their right in the USA? They will point to the precedent (Marbury V Madison)

·      It was an innovation brought by judges. 

·      Justice John Marshall in Marbury V Madison, invented the principle wherein SC of the USA declared an act unconstitutional. Marshall developed an idea of unconstitutionality of acts passed by the legislature.

India has borrowed this from the constitution of the United States

What about other countries? 

Australia- doesn’t have a bill of rights. They have to depend upon the Australian parliament.

·      Parliamentary Sovereignty V CJR in India:

·      The Parliament needs 2/3^rd majority in India to change the constitution.

·      During the Nehruvian era, judges of the SC did not pass any law which invited constitutional amendment because then their judgement would turn void.

·      Getting 2/3^rd majority was easy back then. In contemporary times, there will be no amendment as it is difficult to get 2/3^rd majority.

·      The meaning of Article 13 and Article 32 changes dramatically because the Parliament loses the power to make amendments. 

                       

Juristocracy:

·      It is a trend around the world that the courts are becoming more and more powerful- juristocracy taking the place of judicial activism

·      The way an apex court decides is the way how the policy goes. 

Indian SC said to be the most powerful court in the world

Q. What about personal laws? Do they fall under the scrutiny of judicial activism?

A. Personal laws in India are governed separately and are not governed under constitution.

MINUTES OF THE PRESENTATION

ART 13

Ø  In a nutshell, Any law in force presently or past inconsistence shall be void/invalid. 

Ø  Art 13(1) is prospective in nature. 

Ø   All pre-constitution or existing laws shall be void only if they are inconsistent with the FR enshrined in part III

1.     Doctrine of retrospective application

Keshava Madhava Menon v State of Bombay 1951

Indian Press Emergency Powers Act 1931- curbing of freedom of speech and expression-aimed at the freedom fighters- interest of colonial state is to serve the interests of the colonial state- not to give them rights and justice. In 1950- constitution came into force- this Act becomes void

While prosecution under the Act was going on, the constitution came into force and the validity of the Act was challenged.

Held: 

Ø   FR including freedom of speech and expression, were granted for the first time by constitution.

Ø   When the proceedings were initiated the appellant did not enjoy these rights

Ø     Court will look to general rule of statutory interpretation- (which is wrong cause constitution is not a statute)- Court holds -unless an Act mentions that it is retrospective- every statute is prima facieprospective

Ø   Art 13(1) provides Pre-constitutional laws that were inconsistent with FR are void and not void-ab-initio because of the prospective nature of Article 13(1)

What is the meaning and implication of the word “void”? Void is not repealing of the statute.

Art 13(1) is prospective in nature. All pre-constitution or existing laws shall be void only if they are inconsistent with the FR enshrined in part III

2.     Rule of severability - the doctrine of severability means severing part of a statute which is inconsistent with any constitutional provision.

Ø  The court looks at the intention behind the act.

Ø  If a particular section is separable then that section shall be separated.

Ø   Analyze the importance of a section w.r.t. intention of legislation.

Case- FN Balsara case on Prohibition – 

Facts: Severing some parts of the prohibition act - section 12 (a) (b) (d), violation of Article 19 (1)g and Article 14.

Held: Even without these sections- the legislative intent was upheld/entact.

The provisions of the Act which were declared as void did not affect validity of the entire act and therefore there was no necessity for invalidating the entire Act

Court not lay down any guidelines for severability- but examining individual sections- however, in a 1957 case, R.M.D.C. v. Union of India, AIR [1957] S.C. 628 laid down guidelines on severability

3.     Doctrine of Eclipse – 

·      The doctrine of eclipse means that an existing law inconsistent with a Fundamental Right, though becomes inoperative from the date of the commencement of the Constitution, is not dead altogether. It is overshadowed by the Fundamental Right and remains dormant, but is not dead. The inconsistency (conflict) can be removed by constitutional amendment to the relevant fundamental right so that eclipse vanishes and the entire law becomes valid.

Cases:

(a)   Bhikaji Narayan V State of Maharashtra 

Issue : The Constitutional Validity of the C. P and Berar Motor Vehicles Act. The provision though valid when enacted, became void when the constitution came into force in 1950 as it violated Art 19(1)(g). In 1951, clause (6) of Art 19 was amended.

Held: The amendment was to remove the shadow and to make the impugned Act free from infirmity. This law was eclipsed for the time being by FR. As soon as the eclipse is removed, the law begins to operate from the date of such removal.

What’s the significance of Doctrine of Eclipse now?

We don’t expect judgements by SC to override these days because there are coalition governments right now which means that special majority is difficult to achieve.

Reservation- Madras HC held system of reservation unconstitutional- still there is eclipse- overriding that judgement- act coming into full force

If a law/judgement is declared unconstitutional not necessary that it will be repealed Eclipse overshadows any provision of a statute. Although the law exists in text, it is not to be used in court proceedings.

(b)  State of Gujarat V Ambica Mills

In this case the SC extended the doctrine of eclipse to post constitutional laws as well. 

Unpaid accumulation violation of Article 19 (f) Right to Property

Contentions: The unpaid accumulation is representative of the property of the employees and hence the employees of Ambica Mills challenged the appropriation by the State as violation of Article 19 (f) of Part III of the Fundamental Rights.

Held: A post Constitutional law infringing a FR could also be valid in relation to those whose rights were not infringed upon. Therefore, when a post constitutional law is void as it violates a FR like Art 19 which is granted to citizens only, it does not mean it is void for non-citizens too it would remain valid in relation to non-citizens.

4.     Doctrine of Waiver: 

Ø  It states that a person can intentionally or with knowledge give up (or waive) his rights. 

           Case law: Bashesharnath v CIT: In the Indian constitution one cannot waive FR.

           Judgement discussed in length about how the nature of Indian population, backward and unaware of their rights. Allowing for a waiver of rights would amount to injustice