Limitations on Fundamental Rights

This is the 10th post in Constitutional Law-I, Unit 4 — unlike the previous nine posts, which each covered one specific Article, this post steps back to examine a cross-cutting theme running through everything studied so far in this subject: the general doctrines that determine how far, and in what manner, Fundamental Rights can be limited by legislation.

The Problem This Topic Solves

Fundamental Rights do not exist in a vacuum — laws are constantly being made, some pre-dating the Constitution and some enacted after it, and inevitably some of these laws will conflict, wholly or partly, with a Fundamental Right. Several practical questions then arise, each requiring its own settled rule: What happens to a law that is only partly inconsistent with a Fundamental Right — is the whole law void, or just the offending part? What happens to a law that was validly made before the Constitution came into force but became inconsistent with a Fundamental Right once the Constitution took effect — is it permanently dead, or could it revive if the right is later curtailed by amendment? Can a person simply agree to give up their own Fundamental Right in a contract or transaction? And how far can a right that is expressly "subject to reasonable restrictions" actually be restricted before the restriction itself becomes unconstitutional? This post consolidates the doctrines the courts have developed to answer each of these questions.

Article 13 — The Foundation for All These Doctrines

Article 13(1) provides that all laws in force in India immediately before the commencement of the Constitution, insofar as they are inconsistent with Part III, shall, to the extent of such inconsistency, be void. Article 13(2) separately provides that the State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall, to the extent of the contravention, be void. Every doctrine discussed below is essentially judicial interpretation of what "void to the extent of the inconsistency" actually means in different real-world situations.

The Doctrine of Severability

When only part of a statute is inconsistent with a Fundamental Right, the doctrine of severability asks whether the valid and invalid parts of the law can be separated. If the valid portion is genuinely separable and can stand independently, meaningfully, and workably on its own without the invalid part, only the invalid portion is struck down, and the rest of the law survives. If the valid and invalid parts are so intertwined that they cannot be separated without destroying the essential scheme of the whole law, the entire law is void.

State of Bombay v. F.N. Balsara (1951)

AIR 1951 SC 318, decided by a Bench including Chief Justice M. Patanjali Sastri and Justices Saiyid Fazal Ali, M.C. Mahajan, B.K. Mukherjea, S.R. Das, N. Chandrasekhara Aiyar, and Vivian Bose.

Facts: The respondent, F.N. Balsara, challenged several provisions of the Bombay Prohibition Act, 1949, which imposed sweeping restrictions on the possession, sale, and consumption of a wide range of liquids described broadly as containing alcohol — a definition wide enough to sweep in items like medicinal preparations, toilet items, and other substances with only incidental alcohol content, alongside genuine intoxicating liquors.

Holding: The Supreme Court held that the Act's core prohibition on trade in genuinely intoxicating liquors was a reasonable restriction in the public interest and did not violate Article 19(1)(g). However, it found certain specific provisions of the Act — particularly those sweeping in items like medicinal and toilet preparations with only incidental alcohol content, which had nothing to do with the mischief of intoxication the Act was meant to address — to be invalid. Applying the doctrine of severability, the Court held that these invalid provisions could be cleanly severed from the rest of the Act without disturbing its essential prohibition scheme, since the categories of substances involved were themselves distinctly separable. The Act as a whole was therefore upheld, minus the invalid, severable portions.

The Doctrine of Eclipse

The doctrine of eclipse applies specifically to pre-Constitution laws under Article 13(1). Such a law, if inconsistent with a Fundamental Right, does not become permanently dead or void ab initio — it becomes unenforceable, or "eclipsed", only against citizens whose Fundamental Rights it infringes, for as long as the inconsistency exists. If the relevant Fundamental Right is subsequently amended in a way that removes the inconsistency, the shadow lifts, and the law becomes fully enforceable again without needing to be re-enacted — because the law was validly made at the time and never actually ceased to exist, it was merely rendered dormant. This principle was established in Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955), covered earlier in this subject's Unit 2 — a pre-Constitution law nationalising motor transport, initially inconsistent with Article 19(1)(g), was held to have revived automatically once Article 19(6) was amended to permit State monopolies in trade.

Deep Chand v. State of Uttar Pradesh (1959)

AIR 1959 SC 648, decided by a Bench of Chief Justice B.P. Sinha and Justices K. Subba Rao, N.H. Bhagwati, K.N. Wanchoo, and S.K. Das.

Facts: The appellants, operators of stage-carriage bus services under permits granted under the Motor Vehicles Act, 1939, challenged the U.P. Transport Service (Development) Act, 1955 — a post-Constitution State law that authorised State-run transport schemes in a manner they argued was inconsistent with their Fundamental Rights under Article 19(1)(g). The State argued that even if the Act was initially inconsistent with the Fundamental Right, it should be treated only as "eclipsed" rather than wholly void, capable of validation later.

Holding: The Supreme Court clarified an important limit on the doctrine of eclipse: it applies only to pre-Constitution laws falling under Article 13(1), which were validly enacted when made and only later became inconsistent with a newly introduced Fundamental Right. A post-Constitution law that violates a Fundamental Right at the very moment of its enactment is void under Article 13(2) from its inception — it is, in the Court's words, a "stillborn" law, never having had any legal existence to be merely eclipsed. Since such a law was never valid in the first place, it cannot later be "revived" by a subsequent constitutional amendment removing the inconsistency; if the State wishes such a law to take effect, it must be re-enacted afresh after the amendment. This decisively distinguished the doctrine of eclipse (available only for pre-Constitution laws) from the different, harsher consequence facing post-Constitution laws that violate Part III.

The Doctrine of Waiver of Fundamental Rights

A recurring question is whether an individual can voluntarily give up ("waive") their own Fundamental Right — for instance, by agreeing in a contract not to invoke a particular right. As already covered in this subject's Unit 2, Basheshar Nath v. Commissioner of Income Tax (1959) settled that Fundamental Rights generally cannot be waived by an individual, because they are not conferred purely for individual benefit; many of them (equality, protection against exploitation, and similar guarantees) also embody a public policy that the State itself is bound to uphold, regardless of any individual's private agreement to forgo them. Allowing waiver would let economically or socially powerful parties pressure weaker individuals into "voluntarily" surrendering constitutional protections meant precisely to guard against such pressure.

The Doctrine of Reasonable Restrictions

Most Fundamental Rights studied in this subject are not absolute — they are expressly made "subject to" some qualification: Article 19's freedoms are subject to "reasonable restrictions" on specified grounds; Articles 25 and 26 are subject to "public order, morality and health"; Article 29 and 30 rights, while framed more broadly, are still not free from all regulation, as seen with the essential-practices and "administer ≠ maladminister" doctrines in earlier posts. Courts test whether a restriction is genuinely "reasonable" by examining both its substantive reasonableness (is the restriction excessive or arbitrary in nature, extent, and duration relative to the harm it seeks to prevent?) and its procedural reasonableness (was it imposed following a fair procedure?), and by checking that the restriction has a real, direct nexus with one of the specific grounds the Constitution actually permits — a restriction that has no rational connection to public order, morality, health, or the other permitted grounds cannot be saved merely by being labelled "reasonable".

The Four Doctrines at a Glance

Doctrine	What It Addresses	Key Case
Severability	Only part of a law conflicts with a Fundamental Right — is the whole law void, or just that part?	State of Bombay v. F.N. Balsara (1951)
Eclipse	A pre-Constitution law becomes inconsistent with a Fundamental Right — is it dead forever, or dormant?	Bhikaji Narain Dhakras (1955); limited by Deep Chand v. State of U.P. (1959)
Waiver	Can a person voluntarily give up their own Fundamental Right?	Basheshar Nath v. Commissioner of Income Tax (1959)
Reasonable Restrictions	How far can a right expressly made "subject to" some ground actually be restricted?	Applied throughout Articles 19, 25, 26, etc.

Must Know

Article 13(1) voids pre-Constitution laws to the extent of inconsistency with Part III; Article 13(2) voids post-Constitution laws that take away or abridge Part III rights
Severability: only the inconsistent part of a law is struck down if it can be genuinely separated from the valid part without destroying the law's essential scheme (State of Bombay v. F.N. Balsara, 1951)
Eclipse: applies only to pre-Constitution laws under Article 13(1) — such a law becomes unenforceable, not dead, and can revive automatically if the inconsistency is later removed by amendment
Eclipse does NOT apply to post-Constitution laws void under Article 13(2) — such a law is void from inception ("stillborn") and needs fresh re-enactment even after the inconsistency is removed (Deep Chand v. State of Uttar Pradesh, 1959)
Fundamental Rights generally cannot be waived by an individual, since many embody public policy beyond individual benefit (Basheshar Nath v. Commissioner of Income Tax, 1959)
A restriction on a right must have a genuine, direct nexus with one of the specific permitted grounds, and must be reasonable both in substance and procedure

Should Know

These four doctrines are not article-specific — they apply across the whole of Part III, and examiners often test them using a fact pattern from any Article (Article 14, 19, 21, or the Articles studied in this unit) rather than asking about the doctrine in the abstract
The eclipse/severability distinction is a frequently confused pair: severability is about a law that is partly bad from a single point in time; eclipse is about a law that was once entirely good but became partly or wholly bad due to a later event (the Constitution's commencement), with the possibility of becoming good again

Looking Ahead — Articles 31A, 31B, and 31C

Having covered the general doctrines limiting Fundamental Rights, the next post examines a specific, express set of limitations found in the Constitution's text itself — Articles 31A, 31B, and 31C, which save certain categories of laws (agrarian reform laws, Ninth Schedule laws, and laws giving effect to certain Directive Principles) from being challenged on the ground that they violate specified Fundamental Rights.

A Practical Example

Suppose a pre-Constitution State law banned women from a certain trade entirely, without any exception, and this was challenged as inconsistent with Article 19(1)(g) once the Constitution commenced. If a later constitutional amendment broadened the permissible grounds for restricting Article 19(1)(g) in a way that would now justify such a ban, the doctrine of eclipse would revive the old law automatically, without needing fresh legislation (as in Bhikaji Narain Dhakras). But if instead a brand-new, post-Constitution law were enacted today imposing the identical ban, and it was void under Article 13(2) from the moment of enactment, no future amendment could "revive" it — following Deep Chand, the State would have to enact the law afresh after the amendment for it to have any legal effect at all.

Quick Revision Points

Article 13(1): pre-Constitution laws void to the extent of inconsistency with Part III. Article 13(2): post-Constitution laws taking away/abridging Part III rights are void
Severability: strike down only the inconsistent, genuinely separable part of a law (State of Bombay v. F.N. Balsara, 1951)
Eclipse: pre-Constitution inconsistent law is dormant, not dead; can revive if the inconsistency is later removed (Bhikaji Narain Dhakras, 1955) — but does not apply to post-Constitution laws, which are void from inception and need re-enactment (Deep Chand v. State of Uttar Pradesh, 1959)
Waiver: Fundamental Rights generally cannot be voluntarily given up by an individual (Basheshar Nath v. Commissioner of Income Tax, 1959)
Reasonable restrictions: must have a real nexus to a specific permitted ground, and be reasonable in both substance and procedure

10. Limitations on Fundamental Rights