Doctrine of Severability and Doctrine of Eclipse

Laws inconsistent with or in derogation of the fundamental rights (Article 13)-

1. All laws in force in the territory of India immediately before the

commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part (i.e. Part III of the Constitution), shall, to the
extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights
conferred by this Part (i.e. Part III) and any law made in contravention of
this clause shall, to the extent of the contravention, be void.
3. In this article, unless the context otherwise requires,-
a) law includes any ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law;
b) laws in force includes laws passed or made by a Legislature or other of
this Constitution and not previously repealed, notwithstanding that any such
law or any part thereof may not be then in operation either at all or in
particular areas.

Both the doctrines i.e. Doctrine of severability and Doctrine of Eclipse are in the
context of Article 13 of the Constitution of India.

Doctrine of Severability:

In Art. 13(2) the words “to the extent of contravention” are the basis of the
doctrine of severability. According to this doctrine, whenever the constitutional
validity of any legislation is challenged, the court can separate the offending part
unconstitutional of the impugned legislation from the rest of the legislation. Other
parts of the legislation shall remain operative, if that is possible. This doctrine
entails considerations of equity and prudence. If the valid and invalid parts are so
inextricably mixed up that they cannot be separated the entire provision/statute is
to be declared void. This is known as “doctrine of severability.” It is also known as
doctrine of separability. It protects our fundamental rights.

A.K. Gopalan v. State of Madras

The Supreme Court held that in case of repugnancy to the Constitution, only the
repugnant provision of the impugned Act will be void and not the whole of it, and
every attempt should be made to save as much as possible of the Act. If the
omission of the invalid part will not change the nature or the structure of the object
of the legislation, it is severable. It was held that except Section 14 all other
sections of the Preventive Detention Act, 1950 were valid, and since Section 14
could be severed from the rest of the Act, the detention of the petitioner was not
illegal.

In State of Bombay v. F.N. Balsara

Eight sections of the Bombay Prohibition Act were declared invalid. The Supreme
Court said that the portion which was invalid being in violation of the fundamental
rights was separable from the rest of the Act.

In R.M.D.C. v. Union of India

This landmark judgment completely explained the doctrine of severability, Justice

Venkatarama Aiyar observed:

1. In determining whether the valid parts of a statute are separable from the
invalid parts thereof, it is the intention of the legislature that is the
determining factor. The test to be applied is whether the legislature would
 have enacted the valid part if it had known that the rest of the statute was
invalid.
2. If the valid and invalid provisions are so inextricably mixed up that they
cannot be separated from one another, then the invalidity of a portion must
result in the invalidity of the Act in its entirety. On the other hand, if they are
so distinct and separate that after striking out what is invalid, what remains
is in itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest has become unenforceable.
3. Even when the provisions which are valid and distinct and separate from
those which are invalid, if they all form part of a single scheme which is
intended to be operative as a whole, then also the invalidity of a part will
result in the failure of the whole.
4. Likewise, when the valid and invalid parts of a statute are independent and
do not form part of a scheme but what is left after omitting the invalid
portion is so thin and truncated as to be in substance different from what it
was when it emerged out of the legislature, then also it will be rejected in its
entirety.
5. The separability of the valid and invalid provisions of a statute does not
depend on whether the law is enacted in the same section or different
sections; it is not the form but the substance of the matter that is material,
and that has to be ascertained on an examination of the Act as a whole and
of the setting of the relevant provisions therein.
6. If after the invalid portion is expunged from the statute what remains cannot
be enforced without making alterations and modifications therein, then the
whole of it must be struck down as void, as otherwise it will amount to
judicial legislation.
 7. In determining the legislative intent on the question of separability, it will be
legitimate to take into account the history of legislation, its object, the title
and preamble to it.

Doctrine of Eclipse:

This doctrine applies to pre-constitutional laws. According to Art. 13(1) of the

Constitution, all pre-constitutional laws inconsistent with Part III of the
Constitution become unenforceable and unconstitutional after the enactment of the
Constitution. Thus, when such statutes were enacted they were fully valid and
operative. They become eclipsed on account of Art. 13(1) i.e. being in violation of
Part III and lose their validity for the time being till the inconsistency is removed.
If the constitutional ban is removed, the statute becomes free from eclipse, and
becomes enforceable again.

Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws
that violate fundamental rights upon the premise that such laws are not null and
void ab initio but become unenforceable only to the extent of such inconsistency
with the fundamental rights. If any subsequent amendment to the Constitution
removes the inconsistency or the conflict of the existing law with the fundamental
rights, then the Eclipse vanishes and that particular law again becomes active
again. Such laws are not dead for all purposes. Such laws exist for all past
transactions and for enforcement of rights and liabilities accrued before the date of
the Constitution.

Bhikaji Narain Dhakras v. State of Madhya Pradesh

Section 43 of the Motor Vehicles Act, 1939 was amended by the Central Provinces
and Berar Motor Vehicles (Amendment) Act, 1947, both being pre-constitutional
legislations. The Amendment Act empowered the Provincial Government to take
up the entire Provincial Motor Transport Business. This was challenged as being
violative of the right provided under article 19(1) (g). By a constitutional
amendment of Article 19(1)(6), the State was empowered to carry on any business
and to monopolize it. The Supreme Court held that the true position is that the
impugned law became, for the time being, eclipsed by the fundamental right.
However, the effect of the constitution amendment in 1951 was to remove the
shadow and to make the impugned Act free from all blemish or infirmity. Thus, the
Act became operable again.

Doctrine of Pith and Substance:

Introduction
The basic purpose of this doctrine is to determine under which head of power or
field i.e. under which list (given in the Seventh Schedule) a given piece of
legislation falls.
Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the
most important or essential part of something’.
Doctrine of Pith and Substance says that where the question arises of
determining whether a particular law relates to a particular subject
(mentioned in one List or another), the court looks to the substance of the
matter. Thus, if the substance falls within Union List, then the incidental
encroachment by the law on the State List does not make it invalid.
This is essentially a Canadian Doctrine now firmly entrenched in the Indian
Constitutional Jurisprudence. 
This doctrine found its place first in the case of Cushing v. Dupey. In this case the
Privy Council evolved the doctrine, that for deciding whether an impugned
legislation was intra vires, regard must be had to its pith and substance.

Need for the Doctrine of Pith and Substance in the Indian Context
The doctrine has been applied in India also to provide a degree of flexibility in the
otherwise rigid scheme of distribution of powers. The reason for adoption of this
doctrine is that if every legislation were to be declared invalid on the grounds that
it encroached powers, the powers of the legislature would be drastically
circumscribed.
“It is settled law of interpretation that entries in the Seventh Schedule are not
powers but fields of legislation. The legislature derives its power from Article 246
and other related articles of the Constitution. Therefore, the power to make the
Amendment Act is derived not from the respective entries but under Article 246 of
the Constitution.
The language of the respective entries should be given the widest scope of their
meaning, fairly capable to meet the machinery of the Government settled by the
Constitution. Each general word should extend to all ancillary or subsidiary
matters which can fairly and reasonably be comprehended in it. When the vires of
an enactment is impugned, there is an initial presumption of its constitutionality
and if there is any difficulty in ascertaining the limits of the legislative power, the
difficulty must be resolved, as far as possible in favor of the legislature putting the
most liberal construction upon the legislative entry so that it may have the widest
amplitude.”

Incidental or Ancillary Encroachment:

The case of Prafulla Kumar Mukherjee v. The Bank of Commerce, succinctly
explained the situation in which a State Legislature dealing with any matter may
incidentally affect any Item in the Union List. The court held that whatever may be
the ancillary or incidental effects of a Statute enacted by a State Legislature, such a
matter must be attributed to the Appropriate List according to its true nature and
character.
Thus, we see that if the encroachment by the State Legislature is only incidental in
nature, it will not affect the Competence of the State Legislature to enact the law in
question. Also, if the substance of the enactment falls within the Union List then
the incidental encroachment by the enactment on the State List would not make it
invalid.
However, the situation relating to Pith and Substance is a bit different with respect
to the Concurrent List. If a Law covered by an entry in the State List made by
the State Legislature contains a provision which directly and substantially
relates to a matter enumerated in the Concurrent List and is repugnant to the
provisions of any existing law with respect to that matter in the Concurrent List,
then the repugnant provision in the State List may be void unless it can coexist
and operate without repugnancy to the provisions of the existing law.

Important Supreme Court Judgments on the Doctrine of Pith and Substance

1. The State of Bombay and Another v. F.N. Balsara- This is the first important
judgment of the Supreme Court that took recourse to the Doctrine of Pith and
Substance. The court upheld the Doctrine of Pith and Substance and said that it is
important to ascertain the true nature and character of a legislation for the purpose
of determining the List under which it falls.
2. Mt. Atiqa Begam and Another. v. Abdul Maghni Khan And Others.– The
court held that in order to decide whether the impugned Act falls under which
entry, one has to ascertain the true nature and character of the enactment i.e. its
‘pith and substance’. The court further said that “it is the result of this
investigation, not the form alone which the statute may have assumed under
the hand of the draughtsman, that will determine within which of the
Legislative Lists the legislation falls and for this purpose the legislation must
be scrutinized in its entirety”.
3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and
Others.– Pith and Substance has been beautifully explained in this case:
“This doctrine is applied when the legislative competence of the legislature with
regard to a particular enactment is challenged with reference to the entries in
various lists. If there is a challenge to the legislative competence, the courts will
try to ascertain the pith and substance of such enactment on a scrutiny of the
Act in question. In this process, it is necessary for the courts to go into and
examine the true character of the enactment, its object, its scope and effect to find
out whether the enactment in question is genuinely referable to a field of the
legislation allotted to the respective legislature under the constitutional scheme.
This doctrine is an established principle of law in India recognized not only by this
Court, but also by various High Courts. 
Where a challenge is made to the constitutional validity of a particular State
Act with reference to a subject mentioned in any entry in List I, the Court has
to look to the substance of the State Act and on such analysis and
examination, if it is found that in the pith and substance, it falls under an
entry in the State List but there is only an incidental encroachment on any of
the matters enumerated in the Union List, the State Act would not become
invalid merely because there is incidental encroachment on any of the matters
in the Union List.”

Doctrine of Colorable Legislation:

Doctrine of Colorable Legislation like any other constitutional law doctrine is a

tool devised and applied by the Supreme Court of India to interpret various
Constitutional Provisions. It is a guiding principle of immense utility while
construing provisions relating to legislative competence.
Black’s Law Dictionary defines ‘Colorable’ as:

1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.
3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’.

The literal meaning of Colorable Legislation is that under the ‘color’ or ‘guise’ of
power conferred for one particular purpose, the legislature cannot seek to achieve
some other purpose which it is otherwise not competent to legislate on.

This Doctrine also traces its origin to a Latin Maxim:

“quando aliquid prohibetur ex directo, prohibetur et per obliquum”

This maxim implies that “when anything is prohibited directly, it is also

prohibited indirectly”. In common parlance, it is meant to be understood as
“Whatever legislature can’t do directly, it can’t do indirectly”.
In our Constitution, this doctrine is usually applied to Article 246 which has
demarcated the Legislative Competence of the Parliament and the State
Legislative Assemblies by outlining the different subjects under List I for the
Union, List II for the States and List III for both, as mentioned in the Seventh
Schedule.
This doctrine comes into play when a Legislature does not possess the power to
make law upon a particular subject but nonetheless indirectly makes one. By
applying this principle the fate of the Impugned Legislation is decided.

Supreme Court on Colorable Legislation

One of the most cogent and lucid explanations relating to this doctrine was given
in the case of K.C. Gajapati Narayana Deo and Other v. The State Of Orissa [1]:

“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.

Such transgression may be patent, manifest or direct, but it may also be disguised,
covert and indirect and it is to this latter class of cases that the expression
‘Colorable Legislation’ has been applied in certain judicial pronouncements. The
idea conveyed by the expression is that although apparently a legislature in
passing a statute purported to act within the limits of its powers, yet in substance
and in reality it transgressed these powers, the transgression being veiled by
what appears, on proper examination, to be a mere presence or disguise.”

This Doctrine is also called as “Fraud on the Constitution”. The failure to

comply with a Constitutional condition for the exercise of legislative power may
be overt or it may be covert. When it is overt, we say the law is obviously bad for
non- compliance with the requirements of the Constitution, that is to say, the law is
ultra vires. When, however, the non-compliance is covert, we say that it is a
‘fraud on the Constitution’, the fraud complained of being that the
Legislature pretends to act within its power while in fact it is not so doing.
Therefore, the charge of ‘fraud on the Constitution’ is, on ultimate analysis,
nothing but a picturesque and epigrammatic way of expressing the idea of non-
compliance with the terms of the Constitution. [2]

The doctrine of colorable legislation does not involve any question of bona fides or
mala fides on the part of the legislature. The whole doctrine resolves itself into the,
question of competency of a particular legislature to enact a particular law.

If the legislature is competent to pass a particular law, the motives which

impelled it to act are really irrelevant. On the other hand, if the legislature lacks
competency, the question of motive does not arise at all. Whether a statute is
constitutional or not is thus always a question of power [3].

A logical corollary of the above-mentioned point is that the Legislature does not
act on Extraneous Considerations [4]. There is always a Presumption of
Constitutionality in favor of the Statute. The principle of Presumption of
Constitutionality was succinctly enunciated by a Constitutional Bench in Ram
Krishna Dalmia v. Shri Justice S.R. Tendolkar and Others.[5]:
“That there is always a presumption in favor of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been a
clear transgression of the constitutional principles.”

There is a very famous rule of interpretation as well that explains why the courts
strongly lean against a construction which reduces the statute to a futility. The
Latin Maxim “construction ut res magis valeat quam pereat” implies that a
statute or any enacting provision therein must be so construed as to make it
effective and operative. The courts prefer construction which keeps the statute
within the competence of the legislature [6].

When a Legislature has the Power to make Law with respect to a particular subject,
it also has all the ancillary and incidental power to make that law an effective one.
[7]

As already discussed above that the transgression of Constitutional Power by

Legislature may be patent, manifest or direct, but may also be disguised, covert
and indirect and it is only to this latter class of cases that the expression
“Colorable Legislation” is being applied.[8]

[1] AIR 1953 SC 375.

[2] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.
[3] K.C. Gajapati Narayana Deo and Other v. The State Of Orissa, AIR 1953 SC
375.
[4] Mohan Lal Tripathi v. District Magistrate, Rae Bareilly & Others, AIR 1993
SC 2042.
[5] AIR 1958 SC 538.
[6] CIT v. Teja Singh, AIR 1959 SC 352.
[7] I.N. Saksena v. The State of Madhya Pradesh, AIR 1976 SC 2650, [1976] 3
SCR 237.
[8] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.

Doctrine of territorial nexus:

Territorial nexus is a concept described in Article 245 of the Constitution of India

that determines how legislative powers are divided.

Article 245 provides, inter alia, that (subject to the provisions of the Constitution).
(i) Parliament may make laws for the whole or any part of the territory of India,
and
(ii) The legislature of a State may make laws for the whole or any part of the State.

Thus, article 245 sets out the limits of the legislative powers of the Union and the
States from the geographical (or territorial) angle.
From the point of view of the subject matter of legislation, it is article 246 which is
important. Article 246 reads as under:
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive
power to make laws with respect to any of the matters enumerated in List 1 of the
Seventh Schedule (in this Constitution, referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1),
the Legislature of any State also, shall have power to make laws with respect to
any of the matters enumerated in List III in the Seventh Schedule (in this
Constitution, referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power
to make laws for such State or any part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule (in this Constitution, referred to as
the "State List").

Article 245 (2) of the Constitution of India makes it amply clear that- No law made
by Parliament shall be deemed to be invalid on the ground that it would have extra-
territorial operation.

Thus a legislation cannot be questioned on the ground that it has extra-territorial

operation. It is well-established that the Courts of our country must enforce the law
with the machinery available to them; and they are not entitled to question the
authority of the Legislature in making a law which is extra-territorial. Extra-
territorial operation does not invalidate a law. But some nexus with India may still
be necessary in some of the cases such as those involving taxation statutes.

In Wallace v. Income tax Commissioner, Bombay a company which was registered

in England was a partner in a firm in India. The Indian Income tax Authorities
sought to tax the entire income made by the company. The Privy Council applied
the doctrine of territorial nexus and held the levy tax valid. It is said that the
derivation from British India of a major part of its income for a year gave to a
company for that year sufficient territorial connection to justify its being treated as
at home in India for all purposes of tax on its income for that year from whatever
source income may be derived. If there is sufficient nexus between the person
sought to be charged and the state seeking to tax him, the taxing statute would be
upheld. But illusory and the liability sought to be imposed must be pertinent to that
connection. Whether there is sufficient connection is a question of fact and will be
determined by courts in each accordingly.

Extra-Territorial Operation
It is well-established that the Parliament is empowered to make laws with respect
to aspects or causes that occur, arise or exist, or may be expected to do so, within
the territory of India and also with respect to extra-territorial aspects or causes that
have an impact or nexus with India.

Such laws would fall within the meaning, purport and ambit of grant of powers of
Parliament to make laws „for the whole or any part of the territory of India and
they may not be invalidated on the ground that they require extra territorial
operation. Any laws enacted by the Parliament with respect to extra territorial
aspects or causes that have no nexus with India would be ultra vires and would be
laws made for a foreign territory.

This clearly indicates that as long as the law enacted by the Parliament has a nexus
with India, even if such laws require extra territorial operation, the laws so enacted
cannot be said to constitutionally invalid. It is only when the laws enacted by the
Parliament with respect to extra territorial aspects or causes that have no nexus
with India that such laws would be ultra vires. What is an acceptable Nexus is
again a subjective question.

In granting the Parliament the powers to legislate ‘for’ India, and consequently also
with respect to extra-territorial aspects or causes, the framers of our Constitution
certainly intended that there be limits as to the manner in which, and the extent to
which, the organs of the State, including the Parliament, may take cognizance of
extra-territorial aspects or causes, and exert the State powers (which are the powers
of the collective) on such aspects or causes.

Doctrine of Public Trust requires that all legislation by the Parliament with respect
to extraterritorial aspects or causes be imbued with the purpose of protecting the
interests of, the welfare of and the security of India, along with Article 51, a
Directive Principle of State Policy, though not enforceable in a court of law,
nevertheless fundamental to governance, lends unambiguous support to the
conclusion that Parliament may not enact laws with respect to extra-territorial
aspects or causes, wherein such aspects or causes have no nexus whatsoever with
India.

Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of the State.
Now, this leaves it open to scrutiny whether a particular law is really within the
competence of the State Legislature enacting it. There are plethora of cases that
have stated that the laws which a State is empowered to make must be for the
purpose of that State. Thus, the Doctrine of Territorial Nexus has been applied to
the States as well. There are two conditions that have been laid down in this
respect- (1) The connection (nexus) must be real and not illusory, (2) The liability
sought to be imposed must be pertinent to that connection.

State of Bombay v. RMDC

The Respondent was not residing in Bombay but he conducted Competitions with
prize money through a newspaper printed and published from Bangalore having a
wide circulation in Bombay. All the essential activities like filling up of the forms,
entry fees, etc, for the competition took place in Bombay. The State govt. sought to
levy tax on the respondent for carrying on business in the State. The question for
decision before the Supreme Court was whether the respondent, the organizer of
the competition, who was outside the State of Bombay, could be validly taxed
under the Act.
Decision-It was held that there existed a sufficient territorial nexus to enable the
Bombay Legislature to tax the respondent as all the activities which the competitor
is ordinarily expected to undertake took place mostly within Bombay.

Thus, the object to which the law applies need not be physically located within the
territorial boundaries of the State, but must have a sufficient territorial connection
with the state.