The Constitution of India is the supreme law of India or the supreme law of the land. It is the framework or system through which the democracy of India functions. It lays down the demarcation of the fundamental political code, structure, procedures, powers, and duties of government institutions. It also lays down the fundamental rights of the citizens, as well as the directive principles and duties of the citizens. The Parliament does not have the power to override the Constitution, as it was created by the Constituent Assembly and not by the Parliament.
The Constitution of India was adopted on November 26, 1949, and became effective on January 26, 1950, which is also known as Republic Day. The Indian Constitution replaced the Government of India Act, 1935, as the country’s fundamental governing body or document, and it was then that the Dominion of India became the Republic of India. The Constitution, in its preamble, has declared India to be a sovereign, socialist, secular, and democratic republic. The Constitution of India has also assured the citizens of India justice, equality, and liberty and also endeavours to promote fraternity. The words “secular” and “socialist” were added to the preamble by the 42nd Amendment Act in 1976 during the Emergency.
Over the years, several amendments have been introduced to the Constitution, some of which were deemed to be flawed, and many new principles and doctrines have had to be introduced. The doctrines regarding the same have been discussed below.
1. Basic Structure Doctrine
The Basic Structure Doctrine is a common legal doctrine that is recognised in countries like India, Pakistan, Bangladesh, etc. It was developed and incorporated by the Supreme Court following certain constitutional law cases that were propounded during the 1960s and 1970s. Some of the features of the Constitution termed “basic” are listed below:
- Supremacy of the Constitution
- Rule of law
- The principle of separation of powers
- The objectives specified in the preamble to the Constitution of India
- Judicial review
- Articles 32 and 226
- Federalism (including the financial liberty of states under Articles 282 and 293)
- The sovereign, democratic, and republican structures
- Freedom and dignity of the individual
- unity and integrity of the nation
- The principle of equality, not every aspect of equality, but the essence of equal justice;
- The “essence” of other fundamental rights is in Part III.
- The concept of social and economic justice—to build a welfare state: Part IV of the Constitution
- The balance between fundamental rights and directive principles
- The parliamentary system of government
- The principle of free and fair elections
- Limitations upon the amending power conferred by Article 368
- Independence of the judiciary
- Effective access to justice
- Powers of the Supreme Court of India under Articles 32, 136, 141, and 142
- Legislation seeking to nullify the awards made in the exercise of the judicial power of the state by arbitration tribunals constituted under an act
The important cases that served as landmarks in the making of this structure or doctrine are listed below.
Sajjan Singh v. The State of Rajasthan, AIR 1965 SC 845: In the case of Sajjan Singh v. The State of Rajasthan, AIR 1965 SC 845, the structure was originally proposed. The Seventeenth Constitutional Amendment Act, 1964, was challenged before the Apex Court of India in this case on the grounds that it affected the powers prescribed in Article 226 of the Indian Constitution and did not follow the special procedure prescribed in Article 368 of the Indian Constitution. The key issue was whether modifying a fundamental feature of the Constitution could be regarded as an amendment or rewriting a section of the Constitution and if the latter, whether it would come within the ambit of Article 368 or not. The Supreme Court ruled that Article 368 of the Indian Constitution gives Parliament the authority to modify any provision of the Constitution. Once again, it was stated that Article 13 only applies to regular legislation and not constitutional amendments, but Article 368 only applies to constitutional law. According to the majority judgement, Parliament has the authority to change people’s basic rights.
Minerva Mills Case, 1980: In this case, Minerva Mills was a material industry that carried out large-scale manufacturing and gave the general population a market. On October 19, 1971, the Central Government, depending on the Committee’s assessment, engaged the National Textile Corporation Limited to assume control over the administration of Minerva Mills. The fundamental issue in this situation was checking the constitutionality of the 42nd Constitutional (Amendment) Act, 1976. The Supreme Court held that provisos 4 and 5 of Article 368 were constitutionally invalid as they disregarded the fundamental structure of the Constitution. The Hon’ble Court decided that because of the restriction on the ability of the Parliament to enact amendments, the Constitution, not the Parliament, is paramount in this case. In this situation, the basic structural philosophy was explained further. Nanabhoy Palkhivala was successful in getting the Supreme Court to rule that sections 4 and 55 of the 42nd Amendment are invalid in the Minerva Mills case. When Charan Singh was the acting prime minister, the 42nd Amendment’s sections 4 and 55 were contested as unconstitutional. Article 31C of the Constitution was revised by Section 4 of the 42nd Amendment to give priority to the directive principles of the public policy outlined in Part IV of the Constitution above the basic liberties outlined in Part III.
Kesavananda Bharti Sripadagalavaru vs. State of Kerala, on April 24, 1973: In this case, Kesavananda Bharti, the Pontiff of a Mutt, a religious organisation, petitioned the Supreme Court challenging the constitutionality of the 24th and 25th amendments. In 1969, the Kerala government approved the Land Reforms Amendment Act, which authorised the government to take over portions of the Mutt’s property. In this context, the plaintiff petitioned the Supreme Court. The important decision was handed down on April 24, 1973, by a razor-thin majority of 7:6. The majority decided that the government might amend any section of the Indian Constitution in any manner to fulfil the duties imposed by the Preamble. It also supported the constitutionality of the 24th Amendment. However, it determined that the first section of the 25th Constitutional Amendment was intra vires and the second part was extra vires. The renowned notion of “basic structure” arose as a result of the decision in this case. The “basic structure of the Constitution could not be repealed even by a constitutional amendment,” it was ruled.
2. Doctrine of Severability
This doctrine of separability is also known as the doctrine of separability. The phrase “to the extent of the inconsistency or contravention” makes it clear that when some provisions of a statute become unconstitutional due to inconsistency with fundamental rights, the courts will treat only the repugnant provision of the law in question as void, not the entire statute.
The doctrine of separability states that just the offending section of a legislation, not the whole statute, would be found invalid by the court when a specific provision of a statute violates or conflicts with a constitutional provision.
The doctrine of severability says that if good and bad provisions are joined together by the word “and” or “or” and the enforcement of the good provision is not made dependent on the enforcement of the bad one, that is, the good provision can be enforced even if the bad one cannot or has not existed, the two provisions are severable, and the good one will be upheld as valid and given effect to. On the other hand, if there is one provision that is capable of being used for a legal purpose as well as an illegal one, it is invalid and cannot be allowed to be used even for the legal purpose.
The landmark judgements for this topic are as follows:
K. Gopalan vs. State of Madras, AIR 1950 SC 27: In this case, the petitioner, a communist leader, was detained under the Preventive Detention Act, 1950, and he challenged the preventive detention on the ground that it was an infringement of his fundamental rights under Articles 19 and 21 of the Indian Constitution. The Supreme Court held that only the unconstitutional provisions of the challenged act would be void according to the doctrine of severability. Section 14 of the Preventive Detention Act was declared unconstitutional and void. Section 14 was severed, and every other section of the Preventive Detention Act, 1950, remained constitutionally valid.
State of Bombay and Ors. vs. F.N. Balsara, 1951 AIR 318: N. Balsara prayed to the High Court for a writ of mandamus against the State of Bombay and the Prohibition Commissioner to forbid them from enforcing against him the provisions of the Prohibition Act. The question of law that was raised here was whether the Bombay Prohibition Act, 1949, was valid or not. The Apex Court held that the power accorded to the State Legislature under Entry 31 of List II to prohibit the keeping, selling, and using of intoxicating alcohol is indisputable. Section 297(1)(a) of the impugned act does not apply, as the said act was passed under Entry 31 of List II and not under Entries 27 or 29, and hence the act was not illegal. Section 12(c) affecting the sale or purchase of such medical and toilet preparations containing alcohol was held invalid. The exception granted to the military did not violate Section 37. The judgement finding certain of the Act’s provisions unlawful has no bearing on the Act’s continued legality. Therefore, the State of Bombay’s appeal No. 182 was essentially granted.
3. Doctrine of the Eclipse
This doctrine holds that any law that is incompatible with fundamental rights is not invalid. The law is not totally dead but is merely overshadowed by fundamental rights. The doctrine of eclipse is contained in Article 13(1) of the Indian Constitution. Article 13 states that any law made before the commencement of the Constitution must be consistent with Part III of the Indian Constitution. If any statute is inconsistent with the provisions provided under Part III of the Indian Constitution, such a statute shall become void. At the same time, such a statute will not be considered dead but rather morbid until and unless it is repealed by Parliament.
The important case laws relating to this topic are as follows:
Bhikaji v. State of MP, AIR 1955: The MP Government passed an Act in 1950 to nationalise motor transport, which was passed before the Constitution was enacted. The statute was challenged by the petitioner under Article 19(1)(g) of the Constitution. The Central Government amended the Act, enabling the states to nationalise motor transport. The apex court held that the statute of Madhya Pradesh State nationalising motor transport was cured by the 4th Amendment Act 1955, and therefore the doctrine of eclipse has been applied and such an act is valid.
Keshava Madavan Menon v State of Bombay (1951).: In this case, the appellant had a case against himself under Indian Press (Emergency Powers) Act, 1931 with regard to a pamphlet published in 1949. The appellant contended that such a case could not be constituted against him because that pamphlet aligned with the right to freedom of speech and expression are given in Article 19(1)(a). The Court opined that because at the time when the pamphlet was published, fundamental rights of the Indian Constitution did not exist. Thus, the appellant could not claim to have them. This case thus established that fundamental rights did not have retrospective but only prospective applications.
4. The Doctrine of Colorable Legislation
According to this doctrine, when the legislature cannot make laws on a particular subject directly, it cannot make laws on that subject indirectly. Colorable legislation is one of the doctrines under the Indian Constitution. It basically means “colored” legislation, which is not its true color. So, whenever the Union or state encroaches on their respective legislative competence and makes such laws, colorable legislation comes into the picture to determine the legislative accountability of that law.
The following are some important case laws concerning colorable legislation:
Shri Ram Krishna Dalmia vs. Shri Justice S. R. Tendolkar, 1958 AIR 538, 1959 SCR 279: In this case, the petitioner challenged Section 3 of the Commission of Enquiry Act, 1952, and the notification under which an inquiry commission was set up by the Central Government under S.R. Tendolkar on the ground that it was a denial of equality. The Supreme Court held that the notification and the Act were valid as they were only for inquiry and did not impose dictatorial possession on the government, and the petitioner could not show discrimination. It also held that the burden is on the person who wants to show that there has been a clear violation of constitutional principles.
C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 Ori 185: The constitutional validity of the Orissa Agricultural Income Tax (Amendment) Act, 1950, was challenged on the ground that it is a “colorable” piece of legislation. The real goal is to reduce intermediaries’ net income so that compensation under the Orissa Estate Abolition Act, 1952, can be kept to a minimum. The court ruled that it would be colorable legislation only if it could be demonstrated that the real object is inaccessible to it due to a constitutional limitation or that it falls within the exclusive jurisdiction of another legislature.
R. Balaji v. The State of Mysore, 1963 AIR 649, 1962 SCR Supp. (14) 439: In this case, an order of the Mysore Government was challenged under Article 15(4) for reserving seats for admission to the state medical and engineering colleges. The petitioner said that the classification made by the state was irrational and that the reservation of 68% was a fraud on Article 15(4) of the Constitution. The question was whether Article 15(4) gives constitutional power to the states to pass such reservation powers or not. The court held that the reservation is a fraud on the constitutional power conferred on the state by Article 15(4).
5. The doctrine of harmonious construction
Harmonious construction is a principle of statutory interpretation used in the Indian legal system. It holds that when two provisions of a legal text seem to conflict, they should be interpreted so that each has a separate effect and neither is redundant or nullified.
Some of the important case laws in this regard are as follows:
Commissioner of Income Tax v. M/S Hindustan Bulk Carriers (2000) is a landmark case where the Supreme Court laid down five main principles that govern the rule of harmonious construction, which are as follows:
- The courts should make every effort to avoid a conflict between seemingly conflicting provisions, and they should make every effort to construe the conflicting provisions so that they are harmonised.
- The provision of one section cannot be used to overthrow the provision covered in another section unless the court is unable to find a way to settle their differences despite all its efforts.
- In the situation where the court finds it impossible to entirely reconcile the differences in inconsistent provisions, the courts must interpret them such that effect is given to both provisions as far as possible.
- Courts must also take into account that the interpretation that makes one provision redundant and useless is against the essence of harmonious construction.
- Harmonizing two contradictory provisions does not mean that any statutory provision is destroyed or rendered ineffective.
Sri Jagannath Temple Managing Committee v. Siddha Math and Others (2015), In this case, provisions of the Sri Jagannath Temple Act of 1955 and the Orissa Estate Abolition Act of 1951 came under scrutiny. The Supreme Court said that a clear conflict arose between Section 2(OO) of the Orissa Estates Abolition Act, 1951, and Sections 5 and 30 of the Shri Jagannath Temple Act, 1955. The Court added that it was also clear that both the given statutory provisions of the aforementioned Acts could not survive together. The Court said that while using the rule of harmonious construction, it should be taken into account that when the provisions of two statutes are irreconcilable, one must decide which provision must be given effect.
Unni Krishnan, J.P., etc. v. State of Andhra Pradesh and Others (1993), Unni Krishnan’s case contested Article 21’s “right to life,” which affected India’s right to education. Article 21 ensures education for everyone. The Supreme Court considered whether people have a basic right to education for professional degrees like medical, engineering, etc., and if our Constitution provides education to all citizens. The Supreme Court ruled that Article 21’s right to life included the right to basic education under Article 41 of the directive principle on education. The Court also cited Article 45 and concluded that Article 21 does not provide a fundamental right to professional education. The Court said that Parts Three and Four are supplemental and complimentary and that fundamental rights and directive principles should be read coherently as the social conscience of the Indian Constitution.
6. The Doctrine of Pith and Substance
The Doctrine of Pith and Substance states that if the substance of legislation falls within a legislature’s lawful power, the legislation does not become unconstitutional just because it impacts an issue beyond its area of authority. “True nature and character” is what the phrase “pith and substance” signifies. The infringement of the constitutional delimitation of legislative powers in a federal state is the subject of this concept. The court uses it to determine whether the claimed intrusion is just incidental or significant. Thus, the “pith and substance” concept holds that the challenged statute is fundamentally within the legislative competence of the legislature that enacted it but only incidentally encroaches on the legislative field of another legislature.
The following are some important case laws:
In Cushing v. Dupey (1880), the Privy Council came to the rescue. In its judgement, the Privy Council developed the doctrine of “pith and substance,” holding that the “pith and substance” of an enactment must be considered in determining whether it falls within or beyond the scope of legislative powers allocated to either the Dominion or the Province.
Kartar Singh v. the State of Punjab (1961) 1961 AIR 1787, 1962 SCR (2) 395, In this case, the Supreme Court’s Constitutional Bench explained how the doctrine of pith and substance should be applied. It was discovered that when the idea of pith and substance is applied, legislation relating to a topic in one of the lists may also be indirectly connected, if at all, to a subject in another list. The essence and substance of the legislation must be determined in such a case. If a comprehensive examination of the law reveals that it is on a topic listed in a list pertaining to the legislature, the act in its entirety is to be deemed legal, regardless of any accidental encroachments that may exist.
State of Rajasthan v. G. Chawla (1959), 1959 AIR 544, 1959 SCR Supp. (1) 904 In the case State of Rajasthan v. G. Chawla, the state of Rajasthan made a law that said people couldn’t use sound amplifiers (1959). The respondent broke the law, and the judge said that what he or she did was against the law. On appeal to the Supreme Court, the state argued that the law was within the legislative competence of the state legislature under Entry 6 of List II, which says that the power to legislate in relation to public health includes the power to regulate the use of amplifiers because they make a loud noise. However, the opposition argued that amplifiers fell under Entry 31 of List I, which includes post and telegraphs, telephones, wireless, broadcasting, and other similar forms of communication. Even though the amplifier is a tool for broadcasting and communication, the Apex Court said that it did not fall under Entry 31 of List I. This is because the law was about the state in general, and it would not be invalidated if it accidentally touched on the subject of broadcasting and communication.
7. The Doctrine of the Territorial Nexus
According to the doctrine of territorial nexus, laws made by a state legislature are not applicable outside that state except when there is a sufficient nexus between the state and the object. This doctrine derives its authority from Article 245 of the Indian Constitution. The doctrine states that in order for a state law to have an extraterritorial operation, there must be a nexus between the object and the state.
The following are some important case laws:
Tata Iron and Steel Company vs. Bihar State Tax Act, 1958 AIR 452: The state of Bihar enacted a sales tax act to levy a tax on all sales, whether they occurred within the state’s borders or outside of them. It was also stated that the goods should be manufactured in the state. In the instant case, it was held that there was an established nexus between the object that was to be taxed and the law. These are the two essential elements that constitute the doctrine of territorial nexus.
State of Bombay vs. R.M.D. Chamarbaugwala, 1957 AIR 699: In the instant case, the respondent, who was not a resident of Bombay, conducted a prize competition for a crossword puzzle through a newspaper that was printed and published in Bangalore. This paper was widely published in Bombay, too. For this competition, depots were established so that the forms and fees could be collected. It attracted a lot of buyers for the tickets for that competition. The state government then took over the respondent’s company for a prize competition in the state. The respondent challenged the Supreme Court, and a question was raised about whether the tax can be levied upon a person who resides outside the territorial limits of the state. It was held by the Supreme Court that there was a sufficient territorial nexus, and the legislature has the authority to tax the respondent for the revenue earned by his company through the prize competition.
8. The Doctrine of Laches
Laches mean delay. It is based on the maxim that “equity aids the vigilant and not those who slumber on their rights.” It means that a legal right or claim will not be upheld or permitted if a long delay in asserting the right or claim has prejudiced the adverse party. Anyone seeking redress must appear in court within a reasonable time frame. The doctrine of laches is used by the courts to deal with an inordinate delay that is occurring in filing a petition or complaint. It means that if you have any legal claim, you have to approach the court promptly. Laches is a valid doctrine or defense. The courts will not help the person who sleeps over their rights but will help those who are aware of their rights
The important cases in this regard are as follows:
Haryana State Handloom v. Jain Shool Society (October 29, 2003): On October 26, 1976, the government acquired property under Section 17 of the Land Acquisition Act, 1894. Respondent filed writ petition disputing that reason. The respondents said they had patiently waited to discover whether the property was used for its intended purpose. The high court ruling was deemed fair and equitable. The respondent submitted a writ petition after 17 years, therefore the court decided he didn’t have to wait 22 years to challenge the ruling. The respondent delayed challenging the basis for a reason. Party’s writ petition is dismissed. The respondent’s laches was unreasonable and the party’s delay was unjustified.
Karan Singh v. State of Jammu & Kashmir & Anr. (1986) 1986 AIR 585, 1985 SCR Supp. (31069): The appellant’s father was Jammu and Kashmir’s Maharaja Hari Singh. He applied for the “Toshakhna” (treasure of the state), declaring it his private property and claiming that his father’s rulership’s dissolution did not impact their private property. The appellant claimed all the toshkhana’s gold, silver, carpets, heirlooms, etc. The court denied the plea because Maharaja Hari Singh listed all his private holdings in his June 6, 1949 letter. Indian authorities approved the list. The High Court denied the appeal. The appellant appended the writ petition. The Court ruled that the appellant has no right to bring up the issue again after 30 years, and that it can’t be brought up again without special or reasonable reasons, which there are none of in this case.
9. The Doctrine of Waiver
In this case, 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. According to the doctrine of waiver, a person who is entitled to any right or privilege can waive off such a privilege if he does so at his discretion. This doctrine is based on the idea that a person is the best judge of his own interests under any legal liability, even if he is aware of the consequences and chooses to forego the privilege of such a right.
But the doctrine of waiver doesn’t apply to the fundamental rights of the people guaranteed under the Constitution of India. The elemental rights were kept within the Constitution for the general public at large and not merely for the individual’s benefit. Thus, the “doctrine of waiver” can’t be used to abandon fundamental rights.
The following are some important case laws in this regard:
Basheshar Nath v. Commissioner of Taxes, 1959 AIR 149, 1959 SCR Supp. (1) 528: In this case, an identical question arose: whether a fundamental right could also be waived by the one that has it. Under Section 5(1) of the Taxation of Income (Investigation Commission) Act, 1947, the petitioner disguised a large sum of his income. To avoid a major penalty, the petitioner settled with the Commissioner under Section 8A. In another instance, the Supreme Court knocked down Section 5(1) as unconstitutional. The petitioner appealed to the Supreme Court, arguing that his violation of Section 5(1) of the impugned legislation exempted him from penalties. Article 14 cannot be waived because it may be a state policy. This responsibility is unavoidable.
Olga Tellis & Ors vs. Bombay Municipal Corporation, 1986 AIR 180, 1985 SCR Supp. (2) 51 In this instance, the pavement dwellers agreed with the MCD that they would not assert any basic right to construct huts on the pavement and public roadways and would not impede the dismantling of the huts after a set period. However, when the huts were to be dismantled beyond the deadline, the pavement dwellers maintained that Article 21 of the Indian Constitution afforded them protection. The municipal corporation argued that the residents were unable to bring such a claim given their prior agreement. The Supreme Court overturned the municipal corporation’s argument, stating that basic rights cannot be relinquished by an individual. There is often no estoppel against constitutionally recognised fundamental rights.
Muthiah M.Ct. v. Commissioner of Income Tax,  AIR 1956 SC 269: In 1955, the SC held that Section 5(1) of the Taxation of Income (Investigation Commission) Act was ultra vires of Article 14. The petitioner then challenged the settlement between him and the Income Tax Investigation Commission. The respondent contended that even if Section 5(1) was invalid, the petitioner, by entering into an agreement to pay the tax, had waived his fundamental right guaranteed under Article 14.
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Authored by , Legal Intern, LawDiktat.
Edited by Sahid, Team Member, LawDiktat.