This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. Part III of the Indian Constitution envisages the six fundamental rights for an individual. In this article, she has tried to explain three doctrines applicable to these rights viz. Doctrine of Eclipse, Doctrine of Severability and Doctrine of Waiver.


Part III of the Constitution of India enshrines six fundamental rights for any individual. These fundamental rights are enshrined to give effect to the objectives of the constitution stated in the preamble. They along with the directive principles of state policy, ensure individual dignity. The state is duty-bound to protect these rights, and no provision of the legislature can curtail these rights. What makes these rights unique is Article 32 which provides for constitutional remedies in case of their violation. Article 13 of the Indian Constitution talks about the laws which are inconsistent with or in derogation of the fundamental rights and the after-effect on such laws by the constitution. Article 13(1) renders such laws void, and the two doctrines applicable to such laws are eclipse and severability. Furthermore, the Doctrine of Waiver talks about the individual right to waive their rights.

Doctrine of Eclipse

In simple terms, an eclipse means when one thing overshadows one other thing. Thus, when a law tries to violate or gets inconsistent with a fundamental right, this doctrine is applied to overshadow the inconsistent law by the fundamental right. However, the doctrine is applicable only to pre-constitutional laws which become inconsistent. Through this doctrine, the law is merely declared dormant, thus being unenforceable. But the same cannot be struck down since that can be only done by the authority making them. Also, such law can be subsequently revived through an official gazette if the inconsistency between such law and the fundamental right declines. This is because even when such laws can be held invalid, they never cease to exist. However, such revival is not mandatory to be made. There are two of the many landmark judgments in which the doctrine was applied are discussed below:

1. ‘Keshavan Madhava Menon vs. State of Bombay

The law in question under this case was the Press and Regulation of Books (Act). The foremost section of the statute required prior consent from appropriate authorities before publishing anything. And if such prior consent was not taken, then under a subsequent section, the person was criminally liable. The aggrieved files a suit for violation of Article 19(1)(a), i.e. his right to freedom of speech and expression. Under Article 13(1), the Hon’ble Supreme Court was justified in deciding upon the validity of such law, and thereby by virtue of the doctrine of eclipse the same was held dormant. However, there was no remedy for the person aggrieved since the cause of action arose before the constitution came into being, and it has no retrospective effect.

2. Bhikaji Narain Dhakras vs. State of Madhya Pradesh

In this case, the Central Provinces and Berar motor vehicle (Act) was in question. For commercial transportation, the law allowed licensing only to government vehicles. The case was filed for violation of Article 19(1)(g), the right to practise any profession, or to carry on any occupation, trade or business. The Hon’ble Supreme Court declared the act dormant, unconstitutional and unenforceable by applying the doctrine of eclipse. It held that the act was ‘eclipsed’ by the fundamental right to trade and profession.

3. Gian Kaur vs. State of Punjab

A case where eclipse was removed – this case overruled the judgment given in ‘P. Rathinam vs. Union of India’ that has previously unconstitutionalised the criminal liability of attempt to suicide under section 309 of the Indian Penal Code. The Gian Kaur case instead revived the section which earlier was eclipsed by article 21 of the Indian Constitution. The court in the case held that the attempt to die unnaturally did not come under the purview of right to life and thus section 309 was not violative of it, thereby the reason to eclipse it ceased to exist.

Doctrine of Severability

The next doctrine is called the doctrine of Severability, in simpler terms, that of separation. How it is different from Eclipse is that here, if any of the provisions in any act or statute is contrary to the fundamental rights, then instead of the whole act, only the impugned provision will become void. However, if such impugned provision is the core provision of the act, the whole act will be struck down then under the doctrine. This indicates to the fact that what is separable, only that will be held void, when such separation is impossible, the whole act will be struck down. This doctrine is applicable to both pre and post constitutional laws. Some of the landmark judgments observing this doctrine are mentioned below:

1. State of Bombay vs. R.M.D. Chamarbaugwala

The doctrine of severability was applied to the interpretation and not the Bombay Prize Competitions (Act) 1952 itself, and the whole act was declared void. The Hon’ble Supreme Court held that where the provisions of the act were so mixed up that it was impossible to separate the invalid and valid part, then the whole act would be deemed void. 

2. Shreya Singhal vs. Union of India

The legislature in Information Technology Act, 2000 through section 66A made a person criminally liable if anything he posted or reacted to was found to be offensive. The contention laid down was that the constitutional validity of the section should be checked because otherwise, it gave open-ended power to the enforcing authorities. This was the result of the non-interpretation of the term ‘offensive’. Thus, resulting in India’s most infamous decision, the Hon’ble Supreme Court struck down section 66A solely out of the IT Act, 2000.

3. Supreme Court advocates-on-record association vs. Union of India 

Also known as SCORA II, the Hon’ble Supreme Court in the case struck down the entire National Judicial Appointment Commissions Act, 2014 since the impugned provision was the core provision of the Act.

Doctrine of waiver

A person is mature and enlightened enough about his liberties and thus it is finally his decision to waive the rights which a state confers on him. This is the premise upon which the doctrine of waiver is laid on. In the Indian context too, a person has the liberty to waive his rights, unless the act does not involve public interest. One case where the doctrine of waiver was allowed by the Hon’ble Supreme Court is mentioned below:

1. Krishna Bahadur vs. Purna Theatres and others

The Hon’ble Supreme Court held that when for a person’s benefit conditions were laid down in any statute, such a person could waive his rights unless there is any public interest involved. Also, the party waiving such rights needs to show a contract him waiving his right in consideration of any compromise. However, the conduct of the person waiving his right can also be considered.

However, fundamental rights are not some general rights given to an individual. And thus waiving them is not as easy as waiving any general statutory right. The Landmark judgment regarding the applicability of the doctrine of waiver is discussed below:

2. Basheshar Nath vs. CIT 

P.N. Bhagwati, J. opinionated that the fundamental rights were protected by the Supreme Court through the Indian Constitution and thus allowing people the liberty to waive them will be misusing the sacred rights to such a reduced level. The Hon’ble Supreme Court went ahead to disallow waiver of fundamental rights quoting their reasoning to be: “These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy”.


Fundamental Rights in India are the striking feature of its Constitution. Dr. BR Ambedkar gave a two-fold objective of such rights; firstly that every individual enjoys them and secondly that it becomes binding on every authority. Thus whenever any act or law goes inconsistent with the fundamental rights of the individual, either the Doctrine of Eclipse or Doctrine of Severability is applied to such impugned law in order to give prominence and preference to the rights over laws. Also, the Doctrine of Waiver doesn’t allow any individual to waive his fundamental right in any condition. Fundamental Rights as the term suggests are undoubtedly treated like one in India and protected well unlike any other democratic or non-democratic state.

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