Constitutional Doctrines: Cases, Articles and Exam Facts

Indian constitutional law is not only what the text of the Constitution says; it is also the set of interpretive rules the Supreme Court and the Privy Council built up while deciding whether a law is valid. These rules are called constitutional doctrines. They answer two recurring questions: did the legislature that made the law have the power to make it, and does the law collide with the Fundamental Rights? Examiners like this topic because each doctrine comes with a short definition, a leading case and a one-line maxim, which makes it easy to frame one-mark objective questions.

Where the doctrines come from

Two parts of the Constitution generate most of them. Article 246 with the Seventh Schedule divides legislative power between Parliament and the State Legislatures through three lists, which originally carried 97, 66 and 47 entries respectively. Because subjects overlap in real life, courts need rules to decide which legislature a law truly belongs to. Article 13 is the other source. Article 13(1) says that pre-Constitution laws are void to the extent of their inconsistency with the Fundamental Rights, and Article 13(2) forbids the State from making any new law that takes away or abridges those rights. The words to the extent of such inconsistency in Article 13 are the seed of the doctrine of severability, and the word void in Article 13(1) is the seed of the doctrine of eclipse.

Doctrine of pith and substance

This doctrine says that a court must look at the true nature and character of a law, its pith and substance, and not at its incidental effects. If the law in substance falls in the list of the legislature that made it, it stays valid even though it touches a subject in another list. The doctrine was borrowed from Canadian constitutional practice. The leading decision is Prafulla Kumar Mukherjee versus Bank of Commerce, Khulna, decided by the Privy Council in 1947, where the Bengal Money Lenders Act of 1940 was upheld although it affected promissory notes, a Union subject. In State of Bombay versus F. N. Balsara, 1951, the Bombay Prohibition Act of 1949 was upheld even though it affected the import of liquor.

Doctrine of colourable legislation

The maxim here is that what cannot be done directly cannot be done indirectly. If a legislature lacks competence over a subject, it cannot reach that subject by dressing the law up in different language. The leading case is K. C. Gajapati Narayan Deo versus State of Orissa, 1953, where the Court explained that the doctrine has nothing to do with the good faith or bad faith of the legislature; the only question is competence. A law is struck down as colourable when the legislature pretends to act within its power while actually transgressing it.

Doctrine of eclipse and doctrine of severability

Under the doctrine of eclipse, a pre-Constitution law that clashes with a Fundamental Right is not wiped off the statute book. It is overshadowed, and it remains dormant and unenforceable against citizens; if the shadow is removed by a constitutional amendment, the law revives and operates again. The authority is Bhikaji Narain Dhakras versus State of Madhya Pradesh, 1955, where a 1947 motor vehicles law revived after the First Amendment of 1951 widened Article 19(6). In Deep Chand versus State of Uttar Pradesh, 1959, and Mahendra Lal Jaini versus State of Uttar Pradesh, 1963, the Court held that a post-Constitution law violating Fundamental Rights is void from its birth, so eclipse does not save it.

Severability, also called separability, means that when only a part of a statute is unconstitutional, the court strikes down that part alone and keeps the rest alive, provided the valid part can stand on its own. In A. K. Gopalan versus State of Madras, 1950, section 14 of the Preventive Detention Act, 1950, was declared void while the remaining Act survived. R. M. D. Chamarbaugwalla versus Union of India, 1957, laid down the tests the courts still use.

Other doctrines examiners ask

How to revise this topic

• Fix one maxim to each doctrine, then one case name, then the article it rests on.
• Keep eclipse and severability apart: eclipse is about the whole law and the passage of time, severability is about a part of a law at one point of time.
• Remember that colourable legislation is about competence, not motive, and that pith and substance ignores incidental encroachment.