This Article is written by Khushi Agrawal, 1st-year student, Symbiosis Law School, Noida. She has discussed the different doctrines under the Indian Constitution in detail.

What are Doctrines?

Doctrines are “a rule, principle, theory, or tenet of the law; as, the doctrine of merger, the doctrine of relation, etc”.

What are the Doctrines applied under the Indian Constitution?

The doctrine of Pith and Substance

  • It arises when there is a conflict between two or different subject matters of different list.
  • There can be circumstances in which subject matter of list 1 clashes with the subject matter of list 2. Hence, this doctrine is applied in this kind of situation.
  • The main reason behind the adoption of this doctrine of pith and substance is that the powers of the legislature would be severely limited if every law were to be declared invalid on the ground that it infringes power.
  • According to this doctrine, it is examined to check its“true nature and character” in order to ascertain in what list it falls.
  • It provides a degree of flexibility. It is widely used in determining whether the state is within its power to make statute which involves a subject mentioned in the union list of the constitution.
  • It is applied in the case State of Bombay Vs F.N Balasar,[1] by the supreme court. This was the first important judgment which upheld the pith and substance.

The doctrine of Colourable Legislation

  • It is based upon the doctrine of power separation. Separation of power mandates to strike power of balance between different state components.
  • It is based on the maxim that “what cannot be done directly, cannot also be done indirectly”.
  • This doctrine of colourable legislation is applied when a Legislature does not have the right to make law upon a particular subject but indirectly makes one.
  • The Court has laid down certain tests for discovering whether any particular Act constitutes colourable legislation.

(a) The court must not look into its form or the label but the substance of the law which the legislature has given it.

(b) The court must look at the object as well as the effect of the law.

(c) If the legislature proceeds under a legislative plan the court must read all the statutes constituting that plan and determine the combined effect.

  • Application of this Doctrine: K.C. Gajapati Narayana Deo And Other v. The State Of Orissa,[2] “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”.

The doctrine of Basic Structure

  • According to India’s Constitution, the parliament cannot alter or destroy certain basic features in the constitution.
  • The basic features of the Indian Constitution have not been clearly defined by the Judiciary. The claim of any specific feature of the Constitution to be a “basic” feature is determined by the Court on the basis of the cases.
  • Landmark cases: Shankari Prasad vs Union of India,[3] “It was challenged that Amendment that takes away the fundamental right of the citizens is not allowed by article 13. It was argued that “State” includes parliament and “Law” includes Constitutional Amendments. It was held that ‘Law’ in Article 13 is ordinary law made under the legislative powers. And therefore, the parliament has the power to amend the constitution.”

However, in Golak Nath V State of Punjab,[4] the Supreme Court adopted a new vision to see the powers of parliament that it cannot amend the part III of the constitution i.e Fundamental rights.

In Keshavanada Bharti V State of Kerala,[5] the court held that the parliaments cannot alter or disturb the constitution’s basic structure. It was held that, however, the parliament has unfettered power to amend the constitution, but it can not disturb or emasculate the basic structure or fundamental features of the constitution, as it only has the power to amend and not to rewrite the constitution.

The doctrine of Harmonious construction

  • It states that a provision of the statute should not be interpreted or construed in isolation but as a whole, so as to remove any inconsistency or repugnancy.
  • It brings harmony between the various lists referred to in Indian Constitution Schedule 7. In CIT v. Hindustan Bulk Carriers,[6] the supreme court stated five important principles and they are: The courts must avoid a clash on contradicting provisions and they must construe the opposing provisions so as to harmonize them. 
  • The provision of two sections respectively cannot defeat each other unless the court, despite all its effort, is unable to find a way to reconcile their differences.
  • When it is difficult to totally reconcile the distinctions in the conflicting provision, the courts must decipher them in such a way so that effect is given to both the provisions as much as possible
  • The courts must also keep in mind, the interpretation that makes the provision ambiguous or useless is not harmonious construction.
  • To harmonize is not to destroy any statutory provision or to make it pointless.

Doctrine of Eclipse

  • It is dealt under Article 13(1) of the Indian Constitution.
  • It states that any rule which interferes with the fundamental rights is invalid.
  • The doctrine of eclipse means that an existing law that is inconsistent with a fundamental right, although it becomes inoperative from the date of the constitution’s beginning, is not entirely dead. By amending the constitution’s relevant fundamental rights, the conflict can be eliminated so that the eclipse vanishes and the entire law becomes valid. The first case in which this doctrine was applied was Bhikaji vs State of Madhya Pradesh.[7]
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The doctrine of Incidental and Ancillary Powers

  • It is an addition to the doctrine of Pith and Substance.
  • It also includes rights to legislate on ancillary matters with the right to legislate on a subject.
  • It doesn’t imply that the extent of the power can be stretched out to an unreasonable extent. For example, in R M D Charbaugwala vs State of Mysore, [8] Supreme Court held that wagering and betting is a state subject as referenced in the State list however it excludes capacity to impose taxes on wagering and betting because it exists as a separate item in the same list.
  • In Prafulla Kumar Mukherjee v. The Bank of Commerce case,[9] it is explained that matters with which state legislature is dealing may affect any item in the union list. The court held that, according to its true nature and character, such a matter should be put in the appropriate list.

Doctrine of Severability

  • According to the doctrine of severability, if there is any offending part in the statute then the only offending part is declared void and not the entire statute. The rest remains operative. Under article 13, it is given that only offending part in a statute is void and not the whole statute.
  • This doctrine has been thus summarized by the Supreme Court in the following manner:
  • If the valid and invalid provisions cannot be separated from one another then the entire act becomes invalid.
  • If the valid and invalid portions from a single scheme which is intended to be operative as a whole then the invalidity of a part results in invalidity of the whole
  • Where the valid and invalid parts are independent and do not form a scheme but after omitting the invalid part what is left would be entirely different from what emerged from the legislature then it is invalid in its entirety.
  • If after excluding the invalid portion what remains cannot be enforced then the whole Act becomes invalid.
  • If the invalid part is separate in its operation from the other parts then only the invalid part is so declared. The rest is severed and remains operative.
  • The effect of the application of the doctrine is that the Act is void in parts. That portion which is not void survives.
  • In RMDC vs. UOI, [10] the Supreme court states that the doctrine of severability is a matter of substance and not of form.

The doctrine of Territorial Nexus

  • Clause 1 of article 245 says- subject to the provisions of this Constitution, “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”.
  • The second clause says that “no law made by Parliament shall be deemed to be invalid on the ground that it would have an extra-territorial operation”.
  • According to Article 245(2), laws cannot be declared invalid on the ground that they are extraterritorial.
  • This doctrine is applied, when it is to be examined that particular legislation is within the territorial nexus or not.
  • In the case of Tata Iron Steel vs. the State of Bihar,[11] the supreme court applied this doctrine.

Doctrine of Laches

  • Laches means 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. Anybody who wants remedy must come within a reasonable time before the court.
  • The question arises whether, on the ground of delay, fundamental rights can be denied under Article 32.
  • Fundamental rights cannot be denied only on the basis of delay as it is unjustified. It is necessary for the development of the individual.
  • In Ravindra Jain vs UOI, the supreme court stated that on grounds of unreasonable delay,  the remedy under article 32 can be denied. However, there has been no case to overrule the above-mentioned case law by the Supreme Court order.

Doctrine of Waiver

  • In this, 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.
  • In Basheshar Nath v. Commissioner of Income Tax,[12] the Supreme Court held that fundamental rights of a person cannot be waived.
  • In Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors,[13] the court said that everyone has the right to waive an advantage or protection that seeks to give him. For instance, in the case of a tenant-owner dispute, if a notice is issued and no representation is made either by the owner, tenant or sub-tenant, it would be a waiver of opportunity and that person can not be allowed to turn around at a later stage.

The doctrine of Judicial Review

  • It is of American origin. The doctrine of judicial review refers to the power of the Judiciary to interpret the law and to declare law which is inconsistent with constitution void.
  • According to this doctrine, Executive and the Legislature’s review power is with Judiciary. It is for checking the exercise of the power of public authorities, whether they are constitutional, quasi-judicial or governmental. For example, if there is a law enacted, and the Constitutionality is challenged, the Judiciary has the power to strike down the law. This means that the judiciary is guarding the Constitution and protecting it from any Executive or Legislative action which might violate it.
  • Both the Supreme Court and the High Court exercise the power of the Judicial Review. But the final power to determine the constitutional validity of any law is in the hands of India’s Supreme Court.
  • It can be conducted in respect of all Central and State laws, the orders and ordinances of the executives and constitutional amendments.
  • It cannot be conducted in respect of the laws in Schedule 9 of the Indian Constitution.[14]

Doctrine of Due process of law

  • It not only examines that there is any law to deny life and individual freedom but also checks if the law made is reasonable, just and not arbitrary.
  • If the Supreme Court finds any law to be not fair, it will declare it void. Individual rights can be treated more fairly with the help of this doctrine.
  • Under this doctrine, the state should respect all the legal rights owed to a person by the state as it is a legal requirement and laws that states enact must conform to the laws of the land like – fairness, fundamental rights, liberty, etc.
  • In Maneka Gandhi vs Union of India,[15] the court while delivering the judgement used “Procedure established by law” instead of  “Due process of law” however it must be ‘ right and fair and fair ‘ and ‘ not arbitrary, fanciful or oppressive, ‘ otherwise it would not be a procedure at all and the requirement of Article 21 would not be met.

Difference between procedure established by law and due process of law.

Procedure established by law Due process of law
It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. It not only checks if there is a law to deprive the life and personal liberty of a person but also see if the law made is fair, just and not arbitrary.
It does not assess whether Parliament’s laws are fair, just and not arbitrary. It checks laws made by the parliament is just, fair and arbitrary.
A law duly enacted is valid even if it’s contrary to principles of justice and equity. If the Supreme Court finds that any law as not fair, it will declare it as null and void.
It means that a law duly enacted is valid even if it is contrary to the principles of justice and equity. It is the legal requirement that the State respect all the legal rights due to a person and the laws enacted by the State must comply with the laws of the land.

The doctrine of Constitutional Morality

  • The doctrine of constitutional morality is an emphatic guarantee that the Supreme Court of India is committed to protecting all minorities, despite opposition from majoritarian governments.
  • Second, the doctrine of constitutional morality led the Court to hold that it plays a counter-majoritarian role within the constitutional scheme

Endnotes

  • 1951 AIR 318, 1951 SCR 682
  • AIR 1953 Ori 185
  • AIR 1951 SC 455
  • 1967 AIR 1643, 1967 SCR (2) 762
  • (1973) 4 SCC 225
  • AIR 2002 SC 3491
  • 1955 AIR 781, 1955 SCR (2) 589
  • (1957) S.C.R.. 874
  • (1947) 49 BOMLR 568
  • 1957 AIR 628, 1957 SCR 930
  • 1956 7 STC 158 Pat
  • AIR 1959 SC 149
  • 1991 AIR 385, 1990 SCR Supl. (3) 354
  • L. Chandra Kumar v. Union of India, A.I.R 1997 SC 1125
  • (1978)

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