Eclipse, Severability and Waiver

Facts. Deep Chand v. State of Uttar Pradesh, decided 15 January 1959. The Uttar Pradesh Transport Service (Development) Act 1955 authorised a State road transport scheme; Parliament then legislated on the same subject. The question was the effect on the State Act and on a scheme already framed under it.

Held. The State Act was not wholly void and continued to support the scheme already framed; even if the central Act had repealed it, section 6 of the General Clauses Act would have saved the scheme. On eclipse, Das C.J. and Sinha J. held that there is no reason why the doctrine as explained in Bhikaji Narain should not also apply to a post-Constitution law that infringes a fundamental right conferred on citizens alone: such a law is shadowed as against citizens but remains effective against non-citizens, and when the shadow is removed by amendment it applies to citizens without re-enactment.

Why it matters. It supplies the qualified answer that is now generally given: eclipse applies to a post-Constitution law where the right infringed is one conferred only on citizens, because as against non-citizens there was never any inconsistency and the law was always valid for them. Where the right is conferred on all persons, the law is void from inception and there is nothing to eclipse.

The citation recorded in the case bank for Deep Chand is marked unread: the report's own equivalent-citations line was not captured when the judgment was fetched. The holding above was read in full from the judgment, but the AIR and SCR references should be confirmed before they are written into an answer.

Severability

The problem it answers. A statute is usually a package of many provisions. If one of them offends Part III, is the whole Act void, or only that provision?

Article 13 answers in principle: void to the extent of the inconsistency or contravention. Severability is the working out of that phrase.

Facts. R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628, 1957 SCR 930, decided 9 April 1957. Promoters of prize competitions challenged sections 4 and 5 of the Prize Competitions Act 1955 and rules 11 and 12. They argued that "prize competition" as defined covered not only gambling but competitions where success depended substantially on skill, that restricting the latter breached article 19(1)(g), and that the enactment was a single inseverable whole which must therefore fail entirely.

Held. Restrictions on gambling competitions were unassailable, gambling not being within article 19(1)(g) at all. On construction the Act reached only competitions of a gambling nature. But even assuming it went wider, the provisions were severable in their application and remained valid as to gambling. The Court also laid down that in construing an enactment a court ascertains the legislature's intention not merely from the literal words but from the history of the legislation, its purpose and the mischief it seeks to suppress.

Why it matters. It is the leading Indian authority on severability, and it establishes both forms of the doctrine: severability of provisions, where the bad section is cut out, and severability of application, where the same provision is upheld as to part of its field and struck down as to the rest.

The working principles, drawn from the case law and worth reproducing as a list:

• The intention of the legislature is the determining factor: would it have enacted the valid part alone?
• If the valid and invalid parts are so inextricably mixed that they cannot be separated, the whole falls.
• If they are distinct and separate, only the invalid part falls, even if they are contained in the same section.
• If what remains after severance is so thin and truncated as to be substantially different from what the legislature intended, the whole falls.
• If the valid and invalid parts form part of a single scheme intended to operate as a whole, the whole falls.
• Severability is determined on the Act as a whole, not on the particular provision alone, and the preamble, history and object may be looked at.

Waiver

The question. A fundamental right is a right. May the person entitled to it agree not to insist on it, so that the State may then do what the right would otherwise forbid?

Facts. Basheshar Nath v. Commissioner of Income-tax, Delhi, AIR 1959 SC 149, 1959 Supp (1) SCR 528, decided 19 November 1958. The appellant's case had been referred to the Income-tax Investigation Commission under section 5(1) of the Taxation of Income (Investigation Commission) Act 1947, a provision already declared void as discriminatory under article 14. He nevertheless applied for and obtained a settlement under section 8A, agreeing to pay a large sum. The revenue argued that even if the section was void he had waived his right by settling.

Held. The settlement was covered by the earlier decision and violated article 14. On waiver, Bhagwati and Subba Rao JJ. held that there can be no waiver of the right in article 14 or of any other fundamental right in Part III. The Constitution draws no distinction between rights enacted for an individual's benefit and rights enacted in the public interest or on grounds of public policy, and there is no justification for importing American notions to whittle down the transcendental character of those rights. Article 13(2) is a constitutional mandate addressed to the State, and no citizen can by waiver relieve the State of the obligation it lays on it.

S.K. Das J. took a narrower view: whether waiver is possible must depend on the nature of the right and on whether it is primarily for the benefit of the individual or of the general public, and where the Constitution vested the right in the individual, primarily to benefit him, and it does not impinge on the rights of others, waiver could be possible if not forbidden by law or contrary to public policy.

Why it matters. It is the authority for the rule against waiver, and it must be cited accurately. The broad proposition is the view of two judges, with a reasoned narrower opinion alongside, and the modern statement of the rule is Bhagwati J's. The reasoning to remember is the structural one: article 13(2) is a prohibition on the State, and a prohibition on one party cannot be lifted by the consent of the other.

The related propositions. A fundamental right cannot be waived, but this does not mean that a person may never do anything that has the practical effect of losing the benefit of one: a person may decline to exercise a freedom, may enter a contract that restricts what he does, and may fail to raise a point in time. What he cannot do is confer on the State a power the Constitution denies it. Nor can there be estoppel against the Constitution, so a person who has taken a benefit under a void law is not thereby precluded from challenging it.

A worked example

A statute has twelve sections. Section 5 imposes a restriction that violates article 19(1)(g) as against citizens. Sections 1 to 4 and 6 to 12 create an entire licensing scheme which can operate without section 5, though less effectively. A licensee who accepted a licence under the Act, and took its benefits for three years, now challenges section 5. The State argues that he has waived the right, and alternatively that if section 5 goes the whole Act must go.

Severability. Article 13 makes a law void only "to the extent of" the inconsistency. On Chamarbaugwalla the question is the legislature's intention: would it have enacted the valid part alone? Here the remaining eleven sections form a workable scheme, they are not inextricably mixed with section 5, and what survives is not so truncated as to be substantially different from what was intended. Section 5 alone falls. Note also the second form of the doctrine: severability of application, by which the same provision may be upheld as to part of its field and struck down as to the rest.

Waiver. On Basheshar Nath there can be no waiver of a fundamental right. Bhagwati and Subba Rao JJ. held that the Constitution draws no distinction between rights enacted for an individual's benefit and rights enacted in the public interest, and that article 13(2) is a mandate to the State which no citizen can relieve it of. Taking the benefit of the Act does not preclude the challenge, because there is no estoppel against the Constitution. Cite the case accurately: S.K. Das J. took the narrower view that waiver might be possible for a right primarily for the individual's benefit.

And if the Constitution is later amended so that the restriction becomes permissible? Section 5 is a post-Constitution provision, so ask the Deep Chand question. Since article 19 is a citizens' right, the provision was always valid against non-citizens, and on that reasoning it can be eclipsed rather than still-born, and would revive.

Quick revision

• All three doctrines come out of the words "to the extent of".
• Eclipse: Bhikaji Narain. A pre-Constitution inconsistent law is shadowed, not obliterated, and revives without re-enactment when the inconsistency is removed.
• Eclipse and post-Constitution laws: Deep Chand supports its application where the right infringed is conferred on citizens only, because the law was always valid against non-citizens.
• Severability: Chamarbaugwalla. Both severability of provisions and severability of application. The test is the legislature's intention, and whether what survives is substantially what was intended.
• Waiver: Basheshar Nath. No waiver of a fundamental right, because article 13(2) is a mandate to the State which no citizen can relieve it of. Cite it as the view of Bhagwati and Subba Rao JJ., with S.K. Das J. taking a narrower view.
• No estoppel against the Constitution.

Test yourself

1. Which words in article 13 do all three doctrines come out of?

2. State the doctrine of eclipse and the facts of Bhikaji Narain that illustrate it.

3. Does eclipse apply to a post-Constitution law? Give the reasoning both ways and the qualified answer from Deep Chand.

4. Set out six working principles of severability, and distinguish severability of provisions from severability of application.

5. State the rule against waiver, name the judges who stated it and the judge who differed, and give the structural reason for the rule.

6. What is meant by saying there is no estoppel against the Constitution?