20/06/21
Sunday, 20 June 2021 3:39 PM
To keep the belief of people in the State, Article 12 and 13 were introduced.
Article 12 gives the definition of state and tells about the responsibility the
state has towards people and their fundamental rights whereas Article 13 of
the Indian constitution which presents itself in four parts, makes the concept
of fundamental rights more powerful and gives it a real effect.
This article protects the individual’s fundamental rights by rendering any law
null and void if it intervenes with the liberty or is inconsistent in any way
with the fundamental right of the person.
Article 13: Laws in derogation with fundamental rights
will be void
Article 13 expressly sets the principle of the supremacy of fundamental
rights over any other law in the case of inconsistency between the two. This
can easily interpret the intention of the constitution makers to confine the
application of fundamental rights to what is stated in this Article. For
instance, pre-constitutional laws shall be invalid only to the extent they fall
within the category of “law in force”. As uncodified personal laws do not fall
within the category, it could be urged that they were not intended to
become invalid in the ground of any inconsistency with the fundamental
rights.
The Clause 1 of Article 13 give rise to various doctrines of interpretation
which are as follows:
DOCTRINE OF ECLIPSE: is like a law.
IN BHIKAJI VS STATE OF MP, 1955, the Supreme Court forted the Doctrine of
Eclipse. According to this doctrine. if a law become operational prior to the
commencement of the constitutions and if it violates any
rights enumerated under Part III, it shall better to kept in a state of
obeyance. In other terms, its operations stopped until such time as the
Indian Parliament amends its , remove its inconsistent part. Once the
inconsistency is removed it could again become operational. One must
remember that Doctrine of Eclipse does not applies to the laws that and
after became operational 26th January 1950.
Doctrine of Severability or Separability is a doctrine that
protects the fundamental rights enshrined in the Indian
Constitution. It derives its validity from Article 13 and states
that all laws that were enforced in India before the
commencement of the Constitution, inconsistent with the
provisions of fundamental rights shall to the extent of that
inconsistency be void.
Doctrine of waiver of fundamental rights
According to the Doctrine of Waiver, 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. It is the intentional or voluntary
relinquishment of a known right. The Supreme Court had held that the
fundamental rights of a person cannot be waived off in Basheshar
Nath vs The Commissioner Of Income Tax (1958).