“The point in a case that determines the judgement” or “the principle that the case proves” is known as the ratio decidendi. Ratio Decindi is a legal principle that is drawn from and consistent with the legal arguments made in a decision that determine the case’s conclusion. In an ordinary sense, we refer to as ratio the reason behind the decision but actually, it is much more than that.
The reason in this regard is not merely applying the law to the facts and coming up with an order.
Ratio instead refers to the steps that are involved to resolve a dispute, this resolution must be directly related to the issue or issues that are at the core of the dispute at hand.
It must come from disputes of law, not disputes of fact.
Ratio Decidendi must be argued in court and the facts of the precedent case shape the level of generality to which the later courts decide the level of generality.
Ironically when a precedent has multiple reasons, all reasons are binding.
Ratio becomes a very powerful tool in the hands of a lawyer and that is why it becomes essential for him to comprehend it well.
To find the ratio in a judgement one looks at the abstract principles of law that have been applied to the facts of that particular case
Descriptive Ratio
The reasoning or logic that helped the court get to a decision is known as the descriptive ratio. It will be helpful in upcoming instances and is the original ratio.
In order to be used as a prescriptive ratio, the descriptive ratio is therefore somewhat altered by using the level of generality.
Prescriptive Ratio
The descriptive ratio is applied as a model in a subsequent situation using the prescriptive ratio. In terms of the law or the facts, no two instances are ever same.
As a result, there is a problem when the theory is used as it is explained in a later example.
Rules of Ratio Decidendi
Ratio decidendi can be determined in two ways. The traditional method is the first, while the inversion test is the second.
The conventional method specifies particular guidelines that must be adhered to in order to understand what makes up the ratio in any given judgement.
The following are the guidelines:
The ratio decidendi must be the result of a legal dispute.
The component must be required for determining list.
It must have been debated and decided after careful deliberation.
What is the importance of Ratio Decidendi?
Ratio decidendi is significant in legal precedents since it is the legal standard that supports the decision in a particular case.
As a result, it is regarded as the most important part of a judge’s address and sets the legal precedent for subsequent cases.
Case law, usually referred to as judicial precedent, has been and is now a key source of law.
Judges will be able to follow precedents established in earlier instances. Original, binding, and widespread precedents are the three different categories.
Order VI of the Code deals with the Pleadings. According to Rule 1, Pleading means plaint or written statement. According to P. C. Mogha, pleading are statements in writing draw up and filed by each party to a case stating what his contention will be at trial and giving all such details as his opponents needs to know for his defense.
Pleading are Plaint and Written Statement This rule declares that the pleading are the plaint filed by the plaintiff and the written statement filed by the defendant and thus the stage of pleading would mean the institution of plaint till the submission of a written statement. Therefore, pleading are statement of parties to communicate their contention to be adjudicated in trial. This process is the primary process in the Civil Procedure
Object of Pleading:
The object of pleading was explained by the Supreme Court in Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484. Pleading has following objects: a) To give each side, intimation of the case of the other so that they are not taken by surprise. b) To enable the court to determine the issues between the parties. c) To diminish expenses and delay in conduct of suits. In Thorp v. Holdsworth(1876) LR 3 Ch D 637 , the court held that the whole object of pleading is to narrow down parties to definite issues.
In line with Section 148 of the Civil Process Law, the caveat petition has been submitted. A caveat typically means “a warning or caution, cautious.” It is a phrase that is frequently used in law to alert someone to the possibility of a hidden issue. Under the Law of Civil Procedure, a warning
According to the law, it is a formal notice or warning that is issued to a judge, ministerial officer, or court by a party with a stake in the outcome to express disagreement to a specific action that is within that person’s scope of authority. The Court understands a caveat as a caution or warning given to the court by a person that the court should not make any judgement or an ex-parte order/order without first notifying or hearing the person who is known as the caveator. also learn more about the caveat legal notice
Need for Caveat Under the Code of Civil Procedure
It is described by law as a formal notice or warning delivered to a judge, minister, or court by an interested party in opposition to a specific action within his or her authority. The Court understands a caveat to be a caution or warning given to the court by a person that the court should not render any judgement or ex parte order/order without prior notice or without hearing the person who is known as the caveator. also learn more about the legal notice for caveat
The filing of such a caveat gives Raj the right to receive notice from the court and Mr. Aniket of any application that has been or will be filed, and any order made by the court without such notice is void. You can be aware Online Caveat Petition for Businesses: What it Is.
Content to Be included in a Caveat
The format for submitting a Caveat varies depending on the norms and practices of the various courts of law. However, the following details are typically included in the fundamental framework of a Caveat Application:
The caveatâs effective date.
The caveatorâs name and address.
Particulars about the complaint filed or likely to be filed, such as the names of the Plaintiff and Defendant, as well as the number of cases filed before the court of law Action.
Vakalatnama.
A copy of the contested order (if applicable).
An affidavit in support of the lodged Caveat.
A copy, postal evidence, and an application stating that the notice was duly served on all persons involved must be attached to the application. Both the petition and the Affidavit must be signed.
Court fees, normally not exceeding a hundred rupees, have to be paid simultaneously with the application, subject to the rules imposed by the each court.
Caveat application under Section 148A of CPC
A legal strategy for defending a party’s interest in an appeal proceeding is to file a caveat application under Section 148A of the CPC.
A party can make sure they are informed prior to the entry of any order or judgement in an appeal case by submitting a caveat in accordance with Section 148A.
How to break the caveat petition ?
A Warning An application to vacate or withdraw the caveat may be filed to violate the Code of Civil Procedure.
2. The application must be submitted to the proper court and include precise justifications for removing or vacating the caveat.
3. The court will take into account the arguments made in the application and, if necessary, it may vacate or withdraw the caveat.
4. Before making any moves to void or withdraw a caveat, it is important to consult a legal expert because breaking a caveat petition can be a difficult process.
Public discomforts are common in the current era, including loudspeaker noise, construction noise, excessively honking horns, blocking sunlight in public parks, etc. Public nuisance and private nuisance are the two subcategories of nuisance.
We will solely talk about the lawsuit involving the public nuisance here. Section 91 of the CPC, which outlined the process for instituting a civil lawsuit for the offence of public nuisance, is where the term “public nuisance” originates. This provision allows for the filing of a lawsuit in the event of a public nuisance or any other wrongdoing that negatively affects the general public. It continues to be possible to file a lawsuit for a declaration, an injunction, or other relief that may be appropriate given the facts of the case.
Meaning of Public Nuisance
The Code of Civil Procedure does not define “public nuisance.” However, in accordance with section 268 of the IPC, it can be said to be an act or omission that generally causes harm, danger, or annoyance to the public or to those who live in the area or own property there, or that must inevitably harm, obstruct, pose a danger to, or annoy those who may have the need to use public rights. Examples of public nuisances include the clogging of public rivers, the sound of loudspeakers, blocking of a public motorway, daytime and nighttime horn honking, etc.
Who may sue?
A suit may be instituted by the following persons, relating to a public nuisance or other wrongful act;
1. By Advocate General;
2. By two or more persons with the leave of the court; or
3.     By any private person if he has sustained special damage.
What are the remedies?
There are some remedies which are available against public nuisance as follows:-
1. A person committing a public nuisance may be punished under section 290 of the Indian Penal Code;
2. Magistrates may remove public nuisance in certain case circumstances by exercising summary power under section 133 and 143 CRPC;
3. A suit can be instituted for the declaration, injunction or other appropriate relief without proof of separation damage under section 91(1) CPC.
4.    A suit may also be filed by a private individual, where he has sustained special damages under section 91 (1) CPC.
Appeal:- An appeal lies against an order refusing to grant leave to file a suit for public nuisance or other wrongful act affecting the public, section 104 CPC.
Geographical indications (GIs) are intellectual property (IP) rights that serve to identify a product that originates from a specific geographical area and that has a quality, reputation, or other characteristics that are essentially attributable to its geographical origin. A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place. For example, Blue pottery of Jaipur
Why do we need GIs?
ďˇprovide information to consumer about quality: ordinary shoppers may choose certain products based to origin (may taste better than other products)
ďˇprovide added value to producers: customers may be willing to pay more for GI protected stuff and gain competitive advantage
ďˇprotect producers from unfair competition: GI holder has the right to stop those from using the name if they do not follow the applicable standards (e.g. Ducheling tea)
ďˇagricultural support and policy is changing shape
ďˇbenefits rural community and developing countries: provide market value and therefore more countries have started to use GIs to increase competitiveness and stimulate rural communities, thus increasing livelihood of producers and farmers. Also case in developed countries as they offer primary source of income
ďˇincreasing competition in the EU market (e.g. wines)
Protection of GIs in the global IP system:
ďˇParis Convention for the Protection of Industrial Property, 1883
ďˇMadrid Agreement for the Repression of False or Deceptive Indications of Source of Goods, 1891
ďˇLisbon Agreement for the Protection of Appellations of origin and their International Registration, 1958
ďˇTRIPS Agreement 199
How are GIs protected?
ďˇUnfair competition and passing off (preventing one trader from misrepresenting goods or services being the goods and services of another) how some countries regulate
ďˇCollective and certification marks (or guarantee marks Australia, Canada, USA). May be used by more than 1 person, but producers must abide by standards and regulations set out by the owner
ďˇLaws focusing on business practices: e.g. consumer protection laws, indirectly protect GIs as they prevent certain acts that prevent use of GI
ďˇSui generis system: system which is exclusive to them
ďˇInternational laws do not specify how GIs should be protected
ďˇCountries can provide more than one approach to protect GIs
Buys any product, Uses a product with the approval of its buyer, Hires any service. Such a person as above is called a consumer. It must be noted that the size of the product or the amount of money paid for the purchase is irrelevant. So, a consumer case can be filed in connection with purchase of a pen as well as for purchase of a penthouse and also includes offline or online transaction through electronic means or by Tele shopping/Direct-selling/multi-level
Who is NOT a Consumer?
The person who Obtain Goods or Services for Free. Obtain Goods or Services for the purpose of Resale (Means of Commercial purpose). But person of Goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment is a CONSUMER Under the new Act, “consumer” is defined as a person who “buys any goods” and “hires or avails of any service” for consideration but does not include a person who obtains goods for resale or any commercial purpose.
Salient features of Consumer Protection Act
â Coverage of items : This act is applicable on all products and services .
â Coverage of sector : This act is applicable to all areas whether private ,public or cooperative
â Compensatory nature of provisions as it compensates the consumer for the losses .
â Group of consumer’s rights
â Effective safeguards
â It is applicable to all types of goods and services unless specifically exempted by the Central Government . .
â The ambit of the Act covers all the sectors like public , private or co operative societies etc. .
â It is compensatory in nature . .
â A three tier system of redressal forums have been created like District forum , State Commission and the National Commission
â E-Filing of Complaints.
Need for the Consumer Protection Act, 2019
The Indian government passed the Consumer Protection Act, 2019 to address issues connected to consumer rights violations, unfair business practices, deceptive advertising, and other situations that are detrimental to consumers’ rights. Due to the advancement of technology and the significant rise in the purchasing and selling of products and services online over the past several years, the Parliament intended the Act to include provisions for e-consumers..
By establishing Consumer Protection Councils to resolve disputes should they occur and to give adequate compensation to consumers in the event that their rights have been violated, the Act aims to better protect the rights and interests of consumers. Additionally, it offers quick and efficient handling of customer concerns through alternative dispute resolution procedures. The Act also encourages consumer education to inform consumers of their rights, obligations, and options for resolving complaints.
Objective of the Consumer Protection Act, 2019
The Act’s primary goals are to safeguard consumer interests and create a reliable, effective procedure for resolving consumer complaints. the following:
Defend against the promotion of goods that pose a risk to property and human life.
2. To protect consumers from unfair business practises, provide information about the potency, amount, standard, purity, and pricing of the items.
3. Create Consumer Protection Councils to safeguard customers’ rights and interests.
4. Whenever feasible, guarantee that customers may access a trusted source for affordable goods.
5. Investigate and seek remedies for any unethical business activities or consumer exploitation.
6. By selecting authorities for the prompt and adequate administration and resolution of consumer issues, you may protect consumers.
7. Specify the punishments for violations of the Act.
8. In the event that an issue or dispute emerges, listen to the consumer’s welfare concerns and make sure they are taken into consideration in the proper forums.
9. Provide consumers consumer education so they can understand their rights.
10. Provide quick and efficient handling of customer concerns through alternative dispute resolution procedures.
A trade mark is a mark applied to any product or service that sets one producer’s products or services apart from similar products made by another company. Any product or service with a trade mark on it gives the buyer the idea that it has that quality.
Definition:
Trade Mark Sec 2(1)(zb) Mark capable of represented graphically and capable of distinguishing goods/services of one person from those of others. It shows a connection between goods and person.
Procedure for Registration of Trade Mark
label notice
Under Section 3 (the “Controller General of Patent, Design and Trade Marks”), the government established the Trade Marks Registry, where applications for trademarks may be filed. Several classes of goods or services are eligible for trademark grants. The registration of a trademark serves as prima facie proof that all legal requirements have been duly met. At the Trade Mark Registry’s head office, a register of trademarks is kept. Any trade mark may be submitted for registration under Section 18 by the individual claiming ownership. These applications may be turned down for one of two reasons: Absolute Justifications for Rejection According to Section 9, the Registrar may reject a trademark application on the following grounds in its exclusive discretion:
If mark is devoid of any distinctive character, e.g. where any character of any language or any shape has not been especially designed or visible. ď Any mark which shows just kind, quality, quantity or intended purpose of any goods, e.g. trademark of any goods canât be â500 gramâ ď Mark consisting of marks or indications which are customary in current language, e.g. OMG (abbreviation of Oh My God) cannot be trade mark ď However where trademark which bears distinctive character because of its use, or is well-known to public is allowed, e.g. âSugar-freeâ mark shows just quality but still allowed because this product is well-known to public ď If a mark is capable to deceive or cause confusion to public, or hurt religious susceptibility, or is obscene, it will not be registered ď Mark consisting of shape of natural goods (e.g. Neem leaf) or such shape which is necessary to obtain a given technical result shall not be registered.
Grounds for Rejection
Sec 11 (as amended by Trade Mark (Amendment) Act, 2010) provides that Registrar will reject the trademark application on relative grounds which are: ď Where mark is identical and affixed to similar goods or service, e.g. Lux washing powder ď Where mark is similar and affixed to identical or similar goods or service, e.g. Nirama washing powder (Original is Nirma) ď Where mark is identical or similar and affixed to goods which are not similar, if such mark is well-known to public e.g. Lux shoes ď Where markâs use is prevented by law of passing-off or copyright However, Registrar shall not reject any application for trade mark on the grounds specified in point c and d supra, unless an objection is raised by proprietor of earlier trade mark. Sec 14 provides that if any mark falsely suggests a connection with a living person or a person who died within 20 years prior to application of trade mark, then Registrar can demand consent of such person or his legal representative.
Registered Trade Mark
According to Section 20, the Registrar must publish a trade mark application whenever it is submitted to him in the manner specified. Within three months of the date the application was published, anyone may object. Trademark is granted if application has not faced objection or if opposition has been rejected in the applicant’s favour. Trademarks have a 10-year term with the option to periodically renew them for additional 10-year terms.
The Registrar may delete a trade mark if it is not renewed after 10 years, however it may be reinstated within a year of the removal date. The Registrar may permit a mark to be registered as an associated trade mark when the owner of a trade mark applies for another mark that is the same as or similar to an earlier registered trade mark. Initial registration is prima facie evidence of its legality; nevertheless, the owner of a registered mark cannot intervene if someone is using a mark that is confusingly similar to one that was registered earlier. Owners of unregistered marks may only bring passing-off claims and not infringement claims. In general, the order of use determines who owns a mark. Priority can be established simply by a prior sale of the item.
Infringement of Registered Trade Mark
Sec 29 provides that if a person who is not registered proprietor of mark uses a mark which is identical or deceptively similar to registered trade mark, it is called infringement. Further, registered trade mark is infringed if:
Mark is identical and is used in respect of similar goods/services, or
Mark is similar and is used in identical or similar goods/services, or
Mark is identical and is used in respect of identical goods, and It is likely to cause confusion on the part of public. Further, following action is also called infringement;
Mark is identical or similar to registered trade mark and used in respect of goods which are not similar,
Using someone elseâs trade mark as his trade name as dealing with similar goods.
Affixing someone elseâs trade mark to goods or packing or using such mark in business papers or advertisements.
What is Not Infringement of Trade Mark:
Where mark is used with honest business practice without taking unfair advantage, it is not deemed to be infringement. Following acts are not infringement:
If trade mark is used to indicate kind, quality or quantity etc of any goods/service.
If trade mark was registered subject to certain conditions.
Where mark is used in such types of goods/services for which owner of that mark had impliedly consented to its use.
Registered trade mark can be used in relation to parts and accessories to other goods/services.
Offence and Penalties:
Following penalty provisions are prescribed under this Act:
Penalty of imprisonment of 6 months to 3 years and fine upto Rs 2 lakh for applying false trade mark or false trade description.
Any removal or sale of cotton yarn or cotton thread which are not marked in accordance with provisions of this Act is liable to forfeited.
Any person who falsely represents a trade mark to be registered trade mark is punished under this Act.
In case of offence is committed by Company, every person in charge of the Company, as well as the Company shall be deemed to be liable. Where such contravention is committed with consent or with negligence on the part or director, manager or secretary, they shall also be deemed to be guilty.
According to the Doctrine of Eclipse, a law that violates fundamental rights is not always unconstitutional. Article 13 of the Indian Constitution, which addresses legislation that are incompatible with or violate fundamental rights, has a connection to this idea. It’s not fully gone, but the fundamental right has eclipsed it. When the Constitution went into effect, the case was still unresolved, raising difficulties about the prospective and retrospective nature of Article 13(1) and the term “invalid.”
Elements:
It must be pre-constitutional law and must contradict with fundamental rights.
The law does not become a dead letter, but simply inoperative;
If the Fundamental Right is amended in the future, the assailed law will immediately become operational.
Doctrine of Eclipse and Article 368
The Punjab Security and Land Tenures Act of 1953 was challenged in I. C. Golaknath v. State of Punjab1967 AIR 1643 on the grounds of violating the fundamental right to hold and acquire property and practice any profession. The Golaknath case debated the validity and absoluteness of Article 368. The Parliament Legislature was given restrictive amending powers under Article 368 with no authority to amend the fundamental rights. Thus, Article 368 was eclipsed. The judgment was overruled in the legendary case of Kesavananda Bharati v. Union of India, AIR 1973 SC 1461It provided the Parliament powers to amend the fundamental rights of the Indian Constitution, which removed the Eclipse from Article 368.
Another such case was the Sri Sankari Prasad Singh Deo Vs. Union of India1951 AIR 458 This case pertained to the discussion of the viability of the first amendment of 1951 which retrenched the right to property of the citizens. The Supreme Court stated that Article 368 which gives the power to amend the Constitution also includes the right to amend fundamental rights.Â
The judgement in the Golaknath case was overturned in the historic Kesavananda Bharati Vs. State of Kerala AIR 1973 SC 1461 judgement where the Supreme Court declared that the Parliament has the authority to amend the Constitution as per Article 368 but it has to ensure that there is no change in the basic structure of the Constitution. As a result, the eclipse on Article 368 was removed.
Doctrine of Eclipse and Section 309
The Doctrine extended its provisions under the Indian Penal Code in the cases of Rathinam and Gian Kaur. Section 309 of the IPC, which criminalizes attempts to suicide, was challenged in the case of Rathinam v. Union of India. Section 309 was deemed unconstitutional as the Court observed that Article 21 holds the right to live, which also induces the right not to live. A constitutional bench reversed the judgment of the Rathinam case and upheld the validity of Section 309 in the case of Gian Kaur v. the State of Punjab. Thus, removing the Eclipse on Section 309 to make it operational again.
Fundamental rights and amendments
The Court had to decide whether the challenged Act violated Article 19(1)(a) and, if so, whether it should be declared unlawful. A prevalent misconception is that if a legislation or legal provision violates one or more fundamental rights, it should be judged to be repealed. In actuality, however, such an inoperable component remains dormant and assumes the form of a sleeping arrangement. It is not void or a nullity from the beginning.
If in the near future there is any amendment to the relevant fundamental right, the doctrine of eclipse will automatically re-operate the impugned law.
Article 13 [10] of the Constitution, which outlines four principles for the use of the right, is the environment in which the doctrine’s theory is stated. Additionally, it addresses laws that are contradictory or violate fundamental rights. The article makes it very plain that the State lacks the authority to enact or change any laws in a way that, if put into practice, would abrogate the constitutionally given fundamental rights. If such a law were to pass, it would also be immediately declared void. In this context, “law” refers to any order, bye-law, regulation, notification, custom, or usage that is in effect in Indian territory.
Difference between doctrine of eclipse and severability?
Doctrine of eclipse and severability are fundamentally different from one another because the latter can be used to analyse post-constitutional laws. A completely different idea, severability renders the conflicting sections invalid from the start while maintaining the applicability and functionality of the rest of the act..
Conclusion:
The Doctrine of Eclipse is a slightly sophisticated rule of law principle that has prevented complete repeal of pre-constitutional law. It’s crucial to remember that there is still some uncertainty about the doctrine’s applicability to post-constitutional laws. Contrarily, this ideology has been successful in bringing together pre- and post-constitutional views on many laws, ensuring the success of constitutionalism in every sense.
According to the doctrine of severability, only that particular provision of the lawâand not the entire lawâmust be declared unconstitutional if it infringes on a basic right while remaining compatible with other parts of the law. If the non-infringement clause may be taken independently of the primary law, it is recognised as valid and enforceable.
Article 13(1) states that âAll laws in force in India, before the commencement of the Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.â Comprehensively, the original context elucidates that the court shall nullify pre-constitutional laws to the extent to which it infringes the present-day fundamental rights. But what it connotes, does Article 13 have a retrospective effect? No, it is prospective in nature, because it does not declare any law void ab initio out rightly. Per contra, the repugnant law will become void only after the commencement of the Constitution.
Origin:
The Doctrine had its origin in England and was later adopted by the Indian Judiciary. The Doctrine was applied for the first time in the case of Nordenfelt Vs. Maxim nordenfelt Guns and Ammunition Company Ltd.,(1894) AC 535, it dealt with facts related to the contract in restraint of trade. The court noticed the severability of a clause in the disputed contract and held it void. However, it is pertinent to note that the court had not explicitly applied the Doctrine of Severability to invalidate the impugned clause; instead, the employed principle was the Doctrine of Blue Pencil.
According to the doctrine, which is an extension of Article 13, only the specific provision of a statute that violates or infringes upon a person’s fundamental rights and is severable from the rest of the statute will be declared invalid by the courts, not the entire statute. The concept effectively states that the non-violative provision will be upheld as legitimate and enforceable if the violative and non-violative provisions are separated in a way that allows the non-violative provision to exist without the violative provision.
Scope of Article 13
Article 13 (1) confirms all pre-Constitutional laws and all pre-Constitutional laws that were in force before the enactment of the Indian Constitution as invalid if they contradict basic rights.
Article 13 (2) requires the State not to enact a law that abolishes or limits the fundamental rights granted in Part III of the Constitution of India, and the case of any breach of this provision by law will be termed invalid.
Characteristics of the Doctrine of Severability
1.When only a portion of a statute attacks or violates fundamental rights, the doctrine of severability is applicable.
2. The Constitution’s Article 13 asserts the Doctrine of Severability’s legality.
3. To the extent that it conflicts with the provisions of basic rights, the part in question is void.
4. The law that is being violated should be distinct from other laws so that the court can only declare that particular portion unlawful.
5. The concept is that a non-infringement clause is recognized as legal and enforceable if the infringement can survive without the main clause.
The Doctrine of Severability paves the way for judicial review. If a person claims that the law infringes their fundamental rights and requires a judicial review of the decision, they are responsible for proving how the law in question infringed their rights.
Case Laws:
The doctrine of severability was discussed in detailed in the case of R.M.D.C v. the State of BombayAIR 1957 SC 699, and the court laid down the following principles.
In order to find out whether the valid part of the statute can be separated from the invalid part, the intention of the legislature is the determining factor.
In case the valid and non-valid parts of a particular statute are inseparable then it will invariably result in the invalidity of the entire statute.
When the statute stands independently after the invalid portion is struck out then it will be upheld, notwithstanding that the rest of the Statute has become unenforceable.
In cases where the valid and invalid parts are separable but both of them were intended to be part of the same scheme, then the whole scheme will be invalid.
There may be instances where the valid and invalid parts are separable and not part of the same scheme, however, invalidating the valid part leaves the rest too thin and truncated, then also it will be invalidated as a whole.
Severability is to be determined by reading the statute as a whole and not specific provisions or parts.
In order to find the legislative intent behind a statute, it will be legitimate to take into account the history, object, title and preamble.
 Renu Vs. District and Sessions Judge Tis Harzari, AIR 2014 SC 2175 the supreme court of India held that âThe object of Article 13(2) is to ensure that instruments emanating from any Source of law, permanent or temporary, legislative or judicial or any other source, pay homage to the constitutional provisions relating to fundamental rights.â Thus, Clause (2) of the Article secures the paramountcy of the constitutionally bestowed fundamental rights by proscribing the legislature from enacting any laws over its scheme. If so, it will be declared void.
K.Gopalan Vs. Madras AIR 1950 SC 27 The disputed statute was The Preventive Detention Act, The petitioner invoked Article 13(1) and challenged the Act claiming that it has infringed his fundamental rights provided under Articles 19 and 21 of the Indian Constitution. Anyways the court had not invalidated the entire statute but quashed Section 14 of the challenged Act and upheld the constitutionality of the rest provisions of the Act. While adjudicating the matter in issue the court observed that âthe impugned Act minus this Section can remain unaffected. The omission of the Section will not change the nature or structure of the subject of the legislation.â Therefore, the other provisions of the Act will remain intact according to the Doctrine of Severability.
State of Bombay Vs. F.N. Balsara AIR 1951 SC 318 Here, the disputed statute was theBombay Prohibition Act, 1949. The Supreme Court reaffirmed that declaring any provision of the Act as void will not affect the operation of other provisions within the statute. And, the very nature of this Doctrine is invalidating the unconstitutional provisions separably with keeping the remaining provision intact.
Conclusion:
In the Indian constitutional structure, the severability theory holds a prominent place. It serves as a standard by which the legitimacy of legislation is measured. It serves as a restraint on the legislature’s unregulated authority, which, left unchecked, is capable of going wrong and violating the most fundamental rights that are granted to people.
According to John Locke’s Second Treatises on Government, the sovereign’s obligation to safeguard all men and their property in exchange for rights is the only way for the government and “men” to fulfill their end of the bargain. In addition, he writes in Chapter XVIII under Sections 201 and 202 of the book that the government or sovereign will be treated like “any other man who by force invades the right of another” if they utilize this power to give arbitrary and irregular directives. Therefore, “men” have every right to criticise the government’s authority if it infringes on someone’s freedom and liberty. This implies that citizens have the right to their legal rights simply by virtue of being human, first and foremost.
Similar contractual arrangements between the State and the citizen are outlined in the Indian Constitution. As a result, if any law violates one’s constitutional rights as stated in Part III of the Constitution, they may file a lawsuit under Articles 226 and 32.
The Supreme Court acknowledged the authority of the High Courts under Articles 226 and 227 of the Constitution in L. Chandra Kumar v. Union of India (1997). Furthermore, the Court ruled in the 1975 case of Indira Nehru Gandhi v. Shri Raj Narain & Anr that judicial review is a fundamental component of the Constitution.
The Indian judiciary is empowered by the Constitution to review such laws and to declare them invalid or unconstitutional. In a same vein, discussing Article 13 of the Indian Constitution is essential to fully grasping Locke’s ideas. Article 13 helps the judiciary and the populace keep the legislative authorities in check.The procedure for judicial review is described in Article 13 of the Indian Constitution. It requires the Indian State to uphold and carry out the fundamental right. Additionally, it gives judges the authority to declare a statute or other action invalid if it violates fundamental rights.
This article examines Article 13 and its Clauses while also examining how judicial interpretations have influenced how Article 13 is currently perceived. The relevance of Article 13 as interpreted by the Indian judiciary will be discussed in detail in this article, clause by clause. Additionally, it will stress the significance of judicial review in relation to Article 13.
Article 13 is the guardian of Rights mentioned in Part III of our Constitution. Clause (1) of the said Article emphasizes that all inconsistent existing laws become void from the commencement of the Constitution. The Supreme Court first interpreted Article 13 (1) when deciding whether Article 13 had any retroactive application to laws that violated basic rights.
A seven-judge bench considered the appeal of a petitioner who had been charged under the Indian Press (Emergency Powers) Act in Keshavan Madhava Menon v. The State of Bombay1951 SCR 228. Whether Article 13 (1) of the Indian Constitution might “declare all laws inconsistent with the fundamental rights to be void as if they had never been passed and existed” or be declared unconstitutional from the start was one of the questions raised in the appeal.
As a result, even if a legislation is declared unconstitutional because it violates section III’s rights, it will still be applicable to both citizens and non-citizens who violated the statute in question.
One of the many cases that further complicate the task of interpreting Article 13 is The State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 SCR (3) 760. To provide some perspective, after the State of Bombay was split in two in May 1960, the State of Gujarat passed the Bombay Welfare Fund (Gujarat Extension and Amendment Act) in 1961.
The 1953 Bombay Welfare Fund Act saw a number of revisions thanks to the Amendment Act. A business formed under the Companies Act of 1956, the respondent, made “several contentions.” One of them claimed that some Amendment Act provisions “violated the fundamental right of citizen employers and employees under Article 19 (1)(f).” As a result, the Act was illegal and in violation of Article 13.(2).
Justice Mathew made the observation on behalf of the Supreme Court’s Constitutional Bench that the Indian Constitution merely granted citizens unique rights, protecting them from later unconstitutional laws.
However, although these rules were unlawful for a citizen, they were not unconstitutional for a non-citizen, such as the employer in this instance.The Court further noted that under the Keshavan Madhava case’s interpretation of Article 13(1), the term “void” would not apply to pre-constitutional laws that applied to non-citizens.
Do personal laws fall under Article 13(3)’s scope?
Any legislation having legal effect on Indian territory is included in Article 13(3)(a), including any ordinance, order, bye-law, rule, regulation, notification, custom, or usage. In essence, the Clause does not list every statute that infringes on fundamental rights, but it does include all of them.
Before the start of this Constitution, laws passed or made by the legislature or another competent body in the Indian subcontinent that have not yet been repealed are covered by Article 13(3)(b). It is equivalent to the definition of “existing law” in Article 372 of the Indian Constitution.
Clause (2) of Article 13 declares that the State shall not make any law that contradicts an individual’s fundamental rights. This is a comprehensive reading of both Clauses (2) and (3) (a). Law is defined in clause (3)(a) as include usage and custom. The problem is that a territory’s legislature cannot determine custom or use in that territory. So how does it fit into the broad meaning of law? But this is where diverse interpretations of the legislation’ text are made. Even the interpretation is inconsistent in some aspects.
The Bombay High Court had to determine the constitutionality of the Bombay Prevention of Hindu Bigamous Marriages Act 1946 in the case of State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84. The Court provided an answer to the question of whether personal laws might be considered “laws in force” as described in Article 13(3).(a).
Hon. Justice M.C. Chagla believed that the word “law” and not “personal law” is used in Article 13 (3) (a). The question was whether or not personal law should be included by Article 13 (3) (a). (b). The former comprises statutory law, whilst the latter include all laws that have been in effect since 1950. The Court declared:
The Supreme Court, however, ruled in Ahmadabad Women’s Action Group v. Union of India AIR 1997, 3 SCC 573 that if religious personal laws are included in the laws that the legislature has codified, then the codification must be for the fundamental rights. The problem that first surfaced in the Narasu decision persists in the Triple Talaq decision and even after that, further muddying the scope and definition of law and “law in force” in Article 13(3)(a) and (b). (b).
The Sabarimala Case, also known as Indian Young Lawyers Association v. The State of Kerala ((2017) 10 SCC 689), addressed this issue in 2018. The Indian Constitution is centred on the “individual,” according to the Court in this decision, and any law that had an impact on that individual might be covered by Article 13.(3). The Judge noted: The Court had said that prohibiting women of 10-50 years of age in the Sabarimala Temple under a custom is not reasonable or âuniversalâ. And all valid customs must be âreasonable, certain and continousâ.
Article 13 Vis-Ă-Vis The Basic Structure Doctrine
According to Article 13(2) of the Indian Constitution, the Parliament cannot enact legislation that restricts or abridges basic rights. However, Article 368 grants the Parliament the authority to change the fundamental rights with a special majority in the Parliament.
In I. C. Golaknath & Ors v. the State of Punjab1967 AIR 1643, 1967 SCR (2) 762, the court considered two issues: whether Parliament had the authority to change Part III of the Constitution, and whether exercising authority under Article 368 may invalidate the implications of Article 13 of the Indian Constitution. According to the majority Bench, which was made up of six to seven judges, every constitutional amendment possesses the same qualities as a standard statute. It is therefore protected by Article 13 (3). (a). Once it is addressed, Article 13 (2)’s restrictionâwhich stipulates that “the State shall not make any law which takes away or abridges the rights”âcomes into play. No such amendment that reduces any aspect of the Constitution could then be made. Although the Court in the Golaknath case held that the Parliament had no power to amend Part III of the Indian Constitution, the Parliament responded by enacting the Twenty-fourth Constitutional Amendment. Using which the Parliament inserted a new Clause to Article 13; Article 13(4).
In Kesavananda Bharati v. State Of Kerala And Anr. AIR 1973 SC 1461, the validity of the Twenty-Fourth Amendment was further contested.(1973). which saw the Golak Nath case overturned by a majority Bench of 7 to 6. The Supreme Court ruled that the ability to change laws existed before the Twenty-fourth Amendment. (Article 368). In addition, it noted that J. Sikhri’s list of fundamental characteristics was by no means exhaustive. If any of these Fundamental Elements are violated, the law or the Act will be declared null and void and thus unconstitutional.
Conclusion:
Article 13’s intent and definition initially seem straightforward, they have been subject to numerous interpretations over time. With each case addressing its effects on both pre- and post-colonial legislation, Article 13 and its scope have grown. It was crucial for our Constitution since it was able to render some oppressive laws null and void and, in some cases, rendered them ineffective. It is also crucial to keep in mind that Article 368 prohibits the legislature from interfering with judicial review. It is an inherent and unstated restriction on the legislative branch’s ability to modify the constitution. It implicitly emphasized the value of judicial review, which is in charge of interpreting Article 13 to protect fundamental rights. Although there has been significant inconsistency in the case laws interpreting Article 13, it does provide answers to several crucial problems.
