Friday, 3 June 2022

Doctrine of the Severability, Doctrine of Eclipse and Doctrine of Waiver

 Doctrine of the Severability, Doctrine of Eclipse and Doctrine of Waiver

By: Anjali Tiwari

1. Doctrine of the Severability

"Any legislation in force within the territory of India instantly prior to the beginning of the constitution that is inconsistent with the fundamental rights will be void," according to Article 13(1).

The question therefore becomes whether the entire monument should be declared void or only that section of the statue that is inconsistent with part III should be declared void.

The Doctrine states that if a component of a statute is incompatible with the Fundamental Right, the entire statute will not be ruled unlawful; instead, the court will treat that particular clause as void.

A.K. Gopalan VS. Madras (AIR 1950 SC 150)

In this case the Supreme Court of India threw down section 14 of the Preventive Detention Act, 1950, on the grounds that it infringed on the Fundamental Right granted by Article 22 of the Indian Constitution. As a result of the court's application of the law of severability, the entire act is not declared void, but just section 14 of the act is declared void, which is in violation of fundamental rights.

Minerva Mills, LTD. VS. Union of India (AIR 1980 SC 1789)

The Supreme Court ruled in that sections 4 and 55 of the Constitution (42 Amendment) Act, 1976 were extra vires, meaning they went beyond the legislature's amending jurisdiction. These two portions of the act were deemed null and unconstitutional, allowing the rest of the constitution to stand.

2. Doctrine of Eclipse

A statute may be ruled void if it is deemed to be incompatible with the stipulations of the Fundamental Rights. Such a statue, however, is not void-ab-initio. It cannot become void/dead unless Parliament abolishes it, and the statute (enacted before to the constitution) can be repealed by an amendment to that effect (enacted after the constitution's commencement), making the statute legitimate and enforceable.

Bhikaji Narain Dhakras VS. State of MP (AIR 1955)

The Supreme Court declared that any existing law that is incompatible with Fundamental Rights and becomes inoperative from the date of the constitution is not completely dead. Only the Fundamental Right stands in its way. This view is an example of how the eclipse doctrine can be applied.

However, this doctrine states that all pre-existing constitutional laws must be filled out in accordance with the Fundamental Rights in order for them to be valid, and that laws that do not respect the Fundamental Rights will not be declared void in their entirety, but will be overshadowed by the Fundamental Rights, and that any future amendments to such a law will be valid, provided that the pre-constitutional law is consistent with the Fundamental Rights.

3. Doctrine of Waiver

Waiver is a legal notion that refers to the voluntarily surrender of existing legal rights or privileges. The question now is whether or not the basic right can be abrogated. A person/citizen cannot give up his or her fundamental rights. A basic right cannot be waived under the waiver doctrine.

Shankari Prasad VS. Union of India (AIR 1951 SC 458)

The Supreme Court that the phrase 'law' in article 13(2) does not cover the law/amendment adopted by the parliament under article 368.

Kesavananda Bharati VS. State of Kerala (AIR1973 SC 146)

The Supreme Court maintained the constitutional (24 amendments) Act, 1971's legality and overturned Golaknath's verdict.


The supremacy of the Indian Constitution is upheld by Article 13 of the Indian Constitution, which also paves the route for judicial review. Although the role of the judiciary in constitutional matters is a contentious issue, in most circumstances, the judiciary is deemed supreme and is called upon to protect and enforce the Fundamental Rights provided in Part III.


1. A.K. Gopalan VS. Madras ,AIR 1950 SC 150

2. Minerva Mills, LTD. VS. Union of India (AIR 1980 SC 1789)

3. Bhikaji Narain Dhakras VS. State of MP 1955 AIR 781 1955 SCR (2) 589

4. Shankari Prasad VS. Union of India (AIR 1951 SC 458)

5. Kesavananda Bharati VS. State of Kerala (AIR1973 SC 146)

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