Doctrines under the Indian Constitution
A doctrine can be a guideline, a theory, or a precept of the law. It simply
refers to a concept, opinion, or stance that is frequently held by officials
such as judges. In Indian Constitution, many doctrines are developed from time
to time considering the need of the hour. The judiciary has interpreted various
doctrines for better delivery of judgments and to benefit the public at large.
Article 13: Laws inconsistent with or in derogation of the Fundamental Rights
- All laws in force in the territory of India immediately before the
commencement of this constitution, insofar as they are inconsistent with the
provisions of this part, shall, to the extent of such inconsistency, be
- The state shall not make any law which takes away or abridges the rights
conferred by this part and any law made in contravention of this clause
shall, to the extent of the contravention, be void.
- In this article, unless the context otherwise requires
- Law includes any ordinance, or bye-law law, rule, regulation,
notification, custom, or usage having in the territory of India the force of
- Laws in force includes laws passed or made by a legislature or other
competent authority in the territory of India before the commencement of
this constitution and not previously repealed, notwithstanding that any such
law or any part thereof may not be then in operation either at all or in
- Nothing in this article shall apply to any amendment of the constitution
under Article 368.
It deals with pre-constitution or existing laws i.e. Laws that were in force
immediately before the commencement of the constitution. Laws inconsistent with
the fundamental rights become void from the date of commencement of the
constitution after the court holds it inconsistent with the fundamental rights.
So as long as the courts do not hold them to be so they shall continue to remain
No Retrospective Effect
- No retrospective effect
- The Doctrine of Severability
- The Doctrine of Eclipse
Provisions of the constitution related to fundamental rights have no
retrospective effect. All inconsistent existing laws become void only from the
commencement of the constitution � They are not void ab initio. Such
inconsistent law is not wiped out so far as the past Acts are concerned. A
declaration of invalidity by courts will be necessary to make laws invalid.
In Keshavan Madhava Menon vs State of Bombay
[i], proceedings started against the
appellant offense punishable under Section 18 of Press (Emergency Powregarding1
in a regard to a pamphlet published in 1949. The appellant contended that the
Act was inconsistent with fundamental rights conferred by the constitution and
I'd become void under article 13(1) after 26 January 1950. Hence proceedings
could not be continued. The Supreme Court rejected the contention and held
article 13(1) had no retrospective effect
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 void. To resolve this problem, the
Supreme Court has devised the doctrine of Severability or separability.
doctrine means that if an offending provision can be separated from that which
is constitutional then only that part that is offending is to be declared as
void and not the entire statute. In General Motors Traders V State of Andhra Pradesh
[ii], it was held that Article 13 of the Constitution uses the word "to
extent of such inconsistency be void" which means that when some provision of
the law is held to be unconstitutional then only the repugnant provision of the
law in question shall be treated by courts as void and not the whole statute.
In A.K Gopalan V State of Madras
[iii], the Supreme Court declared Section 14 of
The Preventive Detention Act, 1950 as ultra vires observed that 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.
This is, however, subject to one exception subject to one exception. If the
valid portion is so closely mixed up with the 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.
This exception was put forward in Romesh Thappar V State of Madras
[iv] where the Supreme Court observed that where
a law purports to authorize the imposition of restriction on a Fundamental Right
in language wide enough to cover restriction, both within and without the limits
provided by the Constitution and wide enough to cover restrictions, both
separate the two, the whole law is to be struck down.
Doctrine of Eclipse
In the case of Bhikaji Narayan V State of Madhya Pradesh
[v], the court observed
that the Doctrine of the eclipse is based on the principle that a law that
violates Fundamental Rights is not nullity or void ab initio but becomes only
unenforceable, and remains in a moribund condition. It is overshadowed by
fundamental rights and remains dormant, but is not dead.
In the case of Keshavan Madhava Menon V State of Bombay
[vi], the court observed
that such laws are not wiped out entirely from the statute book. They exist for
all past transactions, for the enforcement of rights acquired and liabilities
incurred before the present Constitution came into force, and for the
determination of rights of persons who have not been given fundamental rights by
The doctrine of eclipse does not apply to a Post-Constitutional law
In the Deep Chand V State of Uttar Pradesh
[vii], the Supreme Court held that a
post-constitutional law made under Article 13(2) that contravenes a fundamental
right is nullified from its inception and is still-born a law. It is void ab
initio. This doctrine of eclipse does not apply to post-constitutional law.
Doctrine of Waiver
In this, a person deliberately relinquishes a right or advantage that the state
has granted him, or decides not to utilize it.
The question of waiver directly arose in Bahsher Nath V Income Tax
[viii], the Supreme Court ruled that a person's basic liberties
cannot be relinquished.
In Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors
the court ruled that everyone has the option to forego any benefits or
protections that are intended for them. For instance, in a renter-owner
disagreement, if a notification is given and no response is provided by the
owner, tenant, or sub-tenant, it would constitute a loss of chance, and that
person cannot be permitted to change their mind afterward.
In Mutiah M. Ct V Commissioner of Income Tax
[x], the Supreme Court held that it
is not open to a citizen to waive any of the fundamental rights conferred by
Part III of the Constitution. These rights have been put in the Constitution not
merely for the benefit of the individual but as a matter of public policy for
the benefit of the general public.
It is an obligation imposed upon the state by
the Constitution. No person can relieve that state of this obligation, because a
large majority of our people are economically poor, educationally backward, and
politically not yet conscious of their rights. In such circumstances, this court
must protect their rights against themselves.
The doctrine of Basic Structure
The doctrine of Judicial review was for the first time propounded by the Supreme
Court of America. US Constitution originally did not contain an express
provision for Judicial review. However, it assumed the power of Judicial Review
by the Supreme Court of America in the case of Marbury v Madison, 1803.
Judicial Review refers to the ability of the Supreme Court (or High Courts) to
investigate the validity of any law and proclaim it illegal and irrelevant if
the Court finds that the law conflicts with the Constitution's provisions. In
other words, judicial review refers to the ability of the court to determine
whether laws and administrative orders issued by the federal and state
governments are legitimate.
In the Indian constitution, we have an express provision for Judicial review and
hence it is on a more solid footing than it is in America.
In Shankari Prasad V Union Of India
[xi], it was contested that Article 13
forbade amendments that violate citizens' basic rights. It was contended that
"law" encompasses constitutional amendments and "state" includes the
legislature. It was decided that "Law" in Article 13 refers to common law
created by governmental authority. Consequently, the government has the
authority to change the law.
In Golak Nath v. State of Punjab
[xii], the Supreme Court, however, took a new
perspective to see the powers of parliament, holding that it cannot change Part
III of the Constitution, which is comprised of Fundamental Rights.
In Kesavanand Bharati v State of Kerala
[xiii], it has been held that Judicial
Review is the Basic structure of the Constitution and therefore "it cannot be
damaged or destroyed by amending the Constitution under Article 368 of the
In Minerva Mills V Union of India
[xiv], Supreme Court held that though the
Parliament has the power to amend the Constitution it should not alter its basic
Doctrine of Territorial Nexus
It implies that the object to which the law implies need not be physically
located within the boundaries of the state, it is enough if it has a sufficient
territorial connection with the state. This doctrine has generally been invoked
in tax cases. Article 245 of the Indian Constitution talks about territorial
- Subject to the provisions of this Constitution, Parliament may make laws
for the whole or any part of the territory of India, and the Legislature of
a State may make laws for the whole or any part of the State.
- No law made by Parliament shall be deemed to be invalid on the ground
that it would have extra-territorial operation.
In Wallace Bros. v Income Tax Commissioner
[xv], the appellant company was
incorporated in England and has its registered office there. It was a partner to
a firm in India. The Company made an overall profit of 2.4 million out of which
1.7 million was derived from India. It was held that India can impose taxes on
entire income as there was sufficient nexus.
In the State of Bombay V RMDC
[xvi], the Bombay State levied a tax on lotteries
and prize competitions. The tax was extended to a newspaper printed and
published in Bangalore but had wide circulation in Bombay. The respondent
conducted the prize competitions through this paper. The court held that there
existed a sufficient territorial nexus to enable the Bombay state to tax the
The doctrine of Pitch and Substance
Within their respective spheres, Union and state legislatures are supreme and
they should not encroach into the sphere reserved for the other. If a law passed
by one encroach upon the field assigned to other then the court will apply the
Doctrine of Pith and Substance to determine whether the legislature concerned
was competent to make it. If the pith and substance of the law, i.e. the true
object of legislation relates to a matter within the competence of the
legislature which enacted it, it should be held to be intra vires even though it
might incidentally trench on the matters, not within the competence of the
In Prafulla Kumar v Bank of Commerce, Khulna
[xvii], the validity of the Bengal
Money lender's act, 1946 which limited the amount and rate of interest
recoverable by money-lender on any loan was challenged on the ground that it was
ultra vires of Bengal Legislature. In so far, it was related to promissory notes
as a central subject. The Privy council held that Bengal Money Lender's Act was
in Pith and substance, a law in respect of money lending and money lenders which
is a state subject and so it was valid even though it trenched incidentally on a
promissory note, a central subject.
In the State of Rajasthan v G. Chawla
[xviii], the state legislature made a law
restricting the use of sound amplifiers. The state contended that the law is
within its competence since it fell under Entry 6, List II' Public health and
sanitation. The respondent contended that the impugned law fell under List I,
Entry 31- 'Telephones, Wireless, Broadcasting and like forms of communication'.
It was held that Law in its pith and substance fell substantially within the
state list, even though the amplifier is an apparatus for communication thus
incidentally encroaching upon Union Subject. The power to legislate about public
health includes the power to regulate the use of amplifiers as producers of loud
The doctrine of Harmonious Construction
The principle of harmonious construction is similar to the idea of a broader
purposive approach the key to this method of the constitution should be
harmoniously interpreted. A provision of the Constitution should be given a
moving and an application that does not lead to conflict with other articles
when there are 2 provisions in the state which are in apparent conflict with
each other, they should be interpreted such that constructions that render
either of them inoperative and useless shall not be adopted except in the last
In O.N. Mohindroo v Bar Council of Delhi & Ors
[xix]. In this case, the question
was whether the Advocate's Act 1961 should be termed as Central Legislature.
Entry 77 and 78 of list 1 conflicted with entry 26 of list 3. Entry 77 provided
'constitution organization jurisdiction' and powers of the supreme court and
fees taken therein person entitled to practice before the supreme court.
78 provided the constitution & organization of the high court, and persons
entitled to practice before the High Court. Entry 26 provided legal, medical,
and other professions. The court harmoniously construed the conflicting entries
and held as far as the matter of legal practice before Supreme Court & High
Court is concerned Centre can make the laws. However, in matters of subordinate
courts, State Government can also make the laws.
In Keshavananda v State of Kerala
[xx], the Supreme Court held that the
Fundamental Rights and Directive Principle of State Policy are the conscience of
the Constitution and in case of conflicts, the court should endeavor to maintain
both of them by applying the principle of harmonious construction. The court
established a fair balance between individual interests and the welfare of the
Doctrine of Repugnancy Art. 254:
Inconsistency between laws made by Parliament and laws made by the
Legislatures of States
- If any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which Parliament
is competent to enact, or to any provision of existing law concerning
one of the matters enumerated in the Concurrent List, then, subject to
the provisions of clause (2), the law made by Parliament, whether passed
before or after the law made by the Legislature of such State, or, as
the case may be, the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy, be
- Where a law made by the Legislature of a State concerning one of the
matters enumerated in the concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an
existing law concerning that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent, prevail in
that State: Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law concerning the same matter
including a law adding to, amending, varying or repealing the law so
made by the Legislature of the State.
In Zaveri Bhai v State of Bombay
[xxi], This case illustrates the application of
the provision to Clause. (2), Art. 254. The Parliament enacted an Essential
supplies Act, which provided penalties e.g. Imprisonment of up to 3 years. The
Bombay Legislature later passed an Act enhancing punishment up to 7 years, The
Act received Governor General's assent and became operative. After the Bombay
Act, amendments were made to Central Act by Parliament with changes in
punishment. The Supreme Court held that as both occupied the same field, the
Bombay Act was impliedly repealed by Parliamentary Act because of repugnancy.
The doctrine of Separation of Power
The doctrine of Separation of Power is the forerunner to all the constitutions
of the world which came into existence in the days of the Magna Carta. This
theory was propounded by Montesquieu. Montesquieu was under the erroneous
opinion that the Doctrine of Separation of power originated in Britain. But this
theory was first applied in American Constitution. This theory was published by
Montesquieu in his book: 'Espirit de Louis' which means 'Spirit of laws'.
Montesquieu found that if the power is concentrated in a single person's hands
then it results in a tyrannical form of government.
In Golaknath v State of Punjab
[xxii], the court opined that 'the Constitution
brings into existence different constitutional entities namely the Union, the
State, and the Union Territories. It creates three major instruments of power
namely, the legislature, executive, and judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers
without overstepping their limits. They should function within the sphere
allotted to them.
In Indira Nehru Gandhi v Raj Narain
[xxiii], in this case, where the dispute
regarding PM Election was pending before SC, SC opined that adjudication of a
specific dispute is a judicial function that parliament even under
constitutional amending power cannot exercise, i.e. the Parliament does not have
jurisdiction to perform a function which the other organ is responsible for,
otherwise, there will be chaos as there will be overlapping of the jurisdiction
of three organs.
The doctrine of Incidental and Ancillary Powers
It is a supplement to the Pith and Substance philosophy. Along with the right to
vote on a topic, it also encompasses the right to act on related issues. It does
not suggest that the authority can be extended beyond what is acceptable.
In R M D Charbaugwala v. State of Mysore
[xxiv], the Supreme Court recognized
that while gambling and betting are state subjects as mentioned in the State
list, the ability to levy taxation on these activities is not included because
it is listed separately in the same list.
In Prafulla Kumar Mukherjee v. The Bank of Commerce
[xxv], it is stated that case
that any item on the union list may be impacted by issues the state assembly is
working with. The court determined that such a case should be added to the
proper roster by its real nature and character.
Doctrine of Laches
Lapses imply an interlude. The adage "Equity aids the vigilant and not those who
slumber on their rights" serves as the foundation for this statement. It implies
that if a lengthy wait in claiming a legal right or claim has harmed the
opposing party, the right or claim will not be maintained or allowed.
seeking redress must appear before the judge within a fair amount of time. It is
unclear if Article 32 permits the denial of basic rights on the grounds of
delay. Fundamental rights cannot be refused solely due to a delay because that
would be unfair. For the growth of the person, it is essential.
In Ravindra Jain v. Union of India
, the Supreme Court stated that the recourse
under article 32 may be refused based on excessive delay. However, there hasn't
been a case to have the Supreme Court ruling overturn the aforementioned case
The doctrine of Colourable Legislation
It is founded on the principle of division of powers. The principle of
separation of powers requires balancing the authority of the various
governmental organs. The axiom "What cannot be done directly, cannot also be
done indirectly" serves as its foundation. This concept of colourable
legislation is used when a legislature obliquely creates a law despite not
having the authority to do so on a given topic. The Court has established
specific criteria for determining whether a specific Act qualifies as colourable
- The judge must focus on the law's actual content rather than its shape or
title, as determined by the lawmakers.
- Both the goal and the law's impact must be taken into consideration by
- If the legislature follows a legislative plan, the judge must study
every law that makes up the plan to assess its overall imp
In K.C.G Narayan Dev V State of Orissa
[xxvi], it was stated that "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".
In the State of Bihar V kameshwar Singh
[xxvii], it is the only case where a law
has been declared invalid on the ground of colourable legislation. In this case,
the Bihar Land Reforms Act, of 1950, was held void on the ground that though
apparently, it purported to lay down any such principle and thus indirectly
sought to deprive the petitioner of any compensation.
Doctrine of Judicial Review
It has American roots. The judicial branch's authority to read the law and
invalidate legislation that conflicts with the constitution is referred to as
the "doctrine of judicial review." This theory states that the judiciary has the
authority to examine decisions made by the executive and the legislature. Its
purpose is to monitor how public authorities-whether municipal, quasi-judicial,
or constitutional-exercise their authority.
For instance, the judiciary has the
authority to overturn legislation if its constitutionality is questioned after
it has been passed. In other words, the court is watching over the Constitution
and defending it against any Executive or Legislative actions that might
contravene it. The Judicial Review authority is exercised by the Supreme Court
and the High Court. However, India's Supreme Court has the ultimate say in
deciding whether legislation is legitimate.
It is possible to perform it
regarding all federal and state statutes, administrative orders and regulations,
and constitutional changes. Regarding the rules listed in Schedule 9 of the
Indian Constitution, it cannot be done.
- AIR 1951 SC 128
- (1984) 1 SCC 222
- AIR 1950 SC 27
- AIR 1950 SC 124
- AIR 1955 SC 781
- AIR 1951 SC 128
- AIR 1959 SC 648
- AIR 1959 SC 149
- 1990 SCR Supl (3) 354
- AIR 1956 SC 269
- AIR 1951 SC 455
- 1967 SCR (2) 762
- (1973) 4 SCC 225
- AIR 1980 SC 1789
- AIR 1948 PC 118
- AIR 1957 SC 699
- AIR 1947 PC 60
- AIR 1959 SC 544
- 1968 SCR (2) 709
- (1973) 4 SCC 225
- AIR 1954 SC 752
- 1967 SCR (2) 762
- 1975 SCR (3) 333
- (1957) S.C.R 874
- (1947) 49 BOMLR 568
- AIR 1953 SC 375
- AIR 1952 SC 252
Award Winning Article Is Written By: Mr.Animesh Nagvanshi
Authentication No: JU352310292377-6-0623