Judicial doctrines: testing a law
Courts have named rules for testing a law against Fundamental Rights and against the powers split between Union and States.
What the paper can ask
- Article 13(1) says laws in force before the Constitution began (26 January 1950) are void to the extent they are inconsistent with Part III (Fundamental Rights).
- Bhikaji Narain Dhakras v. State of Madhya Pradesh (AIR 1955 SC 781, decided 29 September 1955) was about a 1947 motor transport law and Article 19(1)(g), and gave us the doctrine of eclipse.
- The Seventh Schedule has three Lists: Union, State and Concurrent.
- Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna (Privy Council, 11 February 1947, AIR 1947 PC 60) was about the Bengal Money-lenders Act 1940 and gave us the doctrine of pith and substance.
Why exams ask
Setters ask which doctrine fits a one-line description, the case behind it, and which kind of law (before or after 1950) it deals with.
The full story
Courts do not only read laws, they test them. Two big questions come up again and again. Does an old law clash with the Fundamental Rights in Part III? Article 13 deals with this. Has a legislature stepped into a subject that belongs to another, under the three Lists of the Seventh Schedule? Judges answer such questions with named doctrines, each tied to a landmark case. Learn the cases and the question each one answers.
Test yourself
1.Which of the following is a correct description of the 'doctrine of eclipse'?
Correct. Bhikaji Narain Dhakras v. State of M.P. (1955) held that a pre-constitutional law violating Fundamental Rights is not dead but eclipsed and revives when the shadow is removed by amendment.
Not quite. Bhikaji Narain Dhakras v. State of M.P. (1955) held that a pre-constitutional law violating Fundamental Rights is not dead but eclipsed and revives when the shadow is removed by amendment. It goes into your error book.
2.The doctrine of 'pith and substance' is used by courts to
Correct. When a law on a subject in one List incidentally encroaches on another, courts look at its pith and substance (true character) to uphold it; Prafulla Kumar Mukherjee (1947) is the classic case.
Not quite. When a law on a subject in one List incidentally encroaches on another, courts look at its pith and substance (true character) to uphold it; Prafulla Kumar Mukherjee (1947) is the classic case. It goes into your error book.