The article is written by Ansruta Debnath, and further updated by, Ziya ur Rahman Karimi. This article talks about the doctrine of eclipse which is a legal doctrine that has been used to validate pre-constitutional laws that violated fundamental rights.
It has been published by Rachit Garg.
Table of Contents
Introduction
The doctrine of eclipse under Indian laws is a legal doctrine that states that any existing law which is inconsistent with fundamental rights does not completely become invalid. It can be made valid if appropriate amendments are made to the Constitution of India, 1950, making that impugned law in sync with the fundamental rights. This doctrine rests on the premise that fundamental rights are prospective. Thus, any pre-Constitutional law which violated fundamental rights would not become void because at the time of the creation of that law, the fundamental rights of the Constitution of India, 1950 was not in existence. However, questions have arisen as to whether this doctrine becomes applicable to post-Constitutional laws as well, all of which has been addressed in this article.
The doctrine of eclipse and the Indian Constitution
This doctrine is related to Article 13 of the Indian Constitution which talks about laws inconsistent with or in derogation of fundamental rights. Article 13(1) states that any existing law in force before the start of the Constitution within the territory of India which goes against or is inconsistent with fundamental rights, present in Part III of the Indian Constitution, becomes void to the extent of such inconsistency. Further, Article 13(2) states that any new law becomes void the moment it comes into violation of fundamental rights, to the extent of such violation. These provisions are directly in consonance with the doctrine of severability. This doctrine states any provision of a statute which is against the Constitution will be severed from that act and will be considered void to that extent only. Thus, the courts can declare that provision, instead of the entire act, void. However, Article 13(4) states that Article 13 does not apply to constitutional amendments. This implies that if any constitutional amendment law gets passed that takes away certain fundamental rights or is in violation of them, those laws, although inconsistent with the rights, is not void.
Origin and evolution of the doctrine of eclipse
After the passing of the Indian Constitution, numerous existing laws could be challenged for being in contravention with fundamental rights and could be challenged in courts. Likewise, judicial review has played a huge part in establishing the doctrine of eclipse. While Bhikaji Narain Dhakras and Ors v. State of Madhya Pradesh (1955) was the case where this legal doctrine was formally pronounced by the Supreme Court judges, the doctrine was used in principle in certain other previous cases.
The first case where traces of the origin of this doctrine can be found is Keshava Madavan Menon v State of Bombay (1951). In this case, the appellant had a case against himself under Indian Press (Emergency Powers) Act, 1931 with regards to a pamphlet published in 1949. The appellant contended that such a case could not be constituted against him because that pamphlet aligned with the right to freedom of speech and expression are given in Article 19(1)(a). The Court opined that because at the time when the pamphlet was published, fundamental rights of the Indian Constitution did not exist. Thus, the appellant could not claim to have them. This case thus established that fundamental rights did not have retrospective but only prospective application. In the case of Article 13(1), the Court held that it was prospective and not retrospective, especially since any statute is prospective, unless specifically stated otherwise. Because the language of this article does not imply any kind of retrospective application, the same could not be assumed. This opinion was reiterated in the case of Pannala Binaraj v. Union of India (1957).
The next important case, which spoke about the nexus between Article 13(1) and the validation of pre-Constitutional laws infringing on fundamental rights was Behram Khurshid Pesikaka v. State of Bombay (1955). Here, the appellant was accused under Section 66(b) of the Bombay Prohibition Act, 1949. This section spoke about driving under the influence of alcohol. The appellant used the case of State of Bombay and Anr v. F.N. Balsara (1951) where Section 13(b) of the Act was declared to be void to the extent of its application to the use of alcoholic medicinal and toilet preparations because the same was violative of fundamental rights in Article 19. By extrapolation, the appellant contended that Section 66(b) should also be considered void insofar as alcoholic medicinal and toilet preparations were concerned.
The Supreme Court judges initially held that the Balsara case did not repeal or amend the section. But in reference to a larger constitutional bench, the majority opinion held that the section was “notionally obliterated” from the statute for the determination of rights and obligations of the citizens. It was further held that the ruling in Balsara was a good defence to a charge under Section 66(b) in relation to alcoholic medicinal and toilet preparations. It was for the prosecution to prove that the accused was driving under the influence of any prohibited alcohol other than alcoholic medicinal preparations and for the accused to prove otherwise.
Salient features of the doctrine of eclipse
Pre-constitutional law
The Doctrine of Eclipse applies to laws that were enacted before the commencement of the Indian Constitution. These laws are commonly referred to as “pre-constitutional laws.” They may have been in existence and enforced during the colonial period or under previous constitutional arrangements. When the Constitution came into effect in 1950, it brought forth a new legal framework that established the supreme law of the land. However, there were existing laws that might have been inconsistent with the newly guaranteed fundamental rights under the Constitution.
Conflict with fundamental rights
It is necessary that a pre-constitutional law directly conflict with the fundamental rights enshrined in the Constitution. If a pre-constitutional law violates or curtails any of these fundamental rights, it creates a conflict with the constitutional provisions.
Inoperativeness of law
When a pre-constitutional law is found to be in conflict with fundamental rights, it doesn’t automatically become null and void. Instead, it becomes inoperative or unenforceable against citizens whose fundamental rights are affected by the law. In other words, the law loses its legal efficacy to the extent that it infringes upon constitutional rights. This principle distinguishes the Doctrine of Eclipse from the Doctrine of Repugnancy, which renders a law wholly void if it is inconsistent with the Constitution of India.
Potential for future operationality
One of the distinctive features of the Doctrine of Eclipse is that the law, which was earlier eclipsed due to its conflict with fundamental rights, retains the potential for future operativeness. If there is an amendment to the relevant fundamental right in the Constitution that removes the conflict with the pre-constitutional law, the law automatically regains its power and comes into operation. This means that once the Constitutional impediment is resolved through a Constitutional amendment, the law becomes fully enforceable again.
It is important to note that the Doctrine of Eclipse aims to maintain a balance between safeguarding the sanctity of fundamental rights and recognising the continued existence of pre-constitutional laws. It allows these laws to remain dormant until they can be brought into harmony with the constitutional framework through appropriate amendments. The Indian judiciary has employed this doctrine to uphold the supremacy of the Constitution while recognising the historical context of pre-existing laws.
Bhikaji Narain Dhakras v. State of Madhya Pradesh
The most important case which was responsible for articulating and propounding the doctrine of eclipse was Bhikaji Narain Dhakras and Ors v. State of Madhya Pradesh (1955). In this case, the petitioners challenged the constitutional validity of the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 which amended the Motor Vehicles Act, 1939. The petitioners contended that the passing of the Indian Constitution rendered the Amendment Act void as it violated Article 19(1)(g) or the freedom to practise any profession or to carry on any occupation, trade or business. The Amendment had allowed the Provincial Government to establish a monopoly over the motor transport business in the state, which the petitioners stated was violative of the fundamental rights enshrined in the newly minted Indian Constitution of 1950.
The respondents contended that although the Act was initially violative of the Indian Constitution, after the passing of the Constitution (First Amendment) Act, 1951 and Constitution (Fourth Amendment) Act, 1955, the inconsistencies were removed through the addition of Article 19(6) and the C.P. & Berar Motor Vehicles (Amendment) Act was functional again. The petitioners in response categorically stated that the Act had become void pursuant to Article 13(1) and was considered dead unless re-enacted again.
The petitioners’ claims were however rejected and the arguments of the respondents were accepted. The following are certain key points from the judgement of the Bhikaji case-
- For starters, the judgement relied on the Keshava case. Further, it stated that the term “void” in Article 13 meant void to the extent of inconsistency with fundamental rights.
- This implied that the entire operation of the Act did not get stopped. The true effect of Art. 13(1) was to render an Act, inconsistent with a fundamental right, inoperative to the extent of the inconsistency. It is overshadowed by the fundamental right and remains dormant but is not dead.
- This is the doctrine of eclipse. The inconsistency with the fundamental right eclipses the Act until the inconsistency, hence the eclipse, is removed.
- With the Constitution (First Amendment) Act, 1951 and changes in Clause 6 of Article 19, the provisions of the impugned Act were no longer inconsistent therewith and the result was that the impugned Act began to operate once again from the date of such an amendment.
Application of the doctrine of eclipse to the Indian Penal Code
In the case of P. Rathiram v. Union of India (1994), the constitutional validity of Section 309 of the Indian Penal Code, which punishes attempts to commit suicide, was questioned. It was ruled that Section 309 was violative of Article 19 which along with the right to freedom of speech also gives the right to not speak. Further, it was said that the section was violative of Article 21 which by extrapolation also gave the right to not live.
This was held to be an invalid finding in Gian Kaur v. State of Punjab (1996). Thus, in essence, the Rathiram case had eclipsed Section 309 with fundamental rights which got removed by the Gian judgement.
Application of the doctrine of eclipse to post-Constitutional laws
While Article 13(1) applies to pre-Constitutional laws, Article 13(2) applies to post-constitutional laws. An important distinction between these two clauses was drawn up in Deep Chand v. State of Uttar Pradesh (1959). Here, it was said that while a pre-constitutional continues to exist except to the extent of inconsistencies with rights given by Part III of the Indian Constitution, no post-constitutional laws in contravention of Part III can be made and the same if made is void ab initio. Thus, from the plain reading of Article 13, the doctrine of eclipse cannot apply to post-Constitutional laws. In Sagir Ahmed v. State of Uttar Pradesh (1954), it was held by the Supreme Court that any law enacted after the commencement of the Indian Constitution and not protected by Clause 6 while being in violation of Article 19(1)(g) could not be made valid.
Another important case in this regard is Mahendra Lai Jaini v State of Uttar Pradesh (1963). In this case, it was authoritatively established that the doctrine of eclipse did not apply to post-Constitutional laws and the latter could not be automatically revived by Constitutional amendments. Thus, the impugned act would become void ab initio if its contravention of any fundamental right as is given in Article 13(2). To give effect to that statute, the Constitution will have to be amended and the former would have to be re-enacted. This principle was reiterated in K.K. Poonacha v. State of Karnataka (2010). The main question, in this case, was whether any act is liable to be declared void on the ground that the same was not reserved for the consideration of the President and did not receive his assent as per the requirement of Article 31(3) of the Constitution. It was held that an act did not become nullified just because it did not receive assent. It remained eclipsed until the irregularity had been removed. In the present scenario, Article 31 was repealed and thus, the act became revived again.
This doctrine has also been used in other circumstances. For example, in the case of K.P. Manu, Malabar Cements Ltd v. Chairman, Scrutiny Commt (2015), the Court held that when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. Further, in the case of UOI & Ors. v. Duli Chand (2010), the court held that a penalty order upon being stayed would remain eclipsed and not dead. When the same stay is vacated, from that moment, the penalty would revive on its account.
Difference between doctrine of eclipse and doctrine of severability
| Serial No. | Basis of differentiation | Doctrine of eclipse | Doctrine of severability |
| 1 | Definition | Renders inconsistent laws or provisions inoperative if they are in conflict with fundamental rights guaranteed by the Constitution until such conflict is resolved. | It allows for uphold valid portions of the law while striking down the unconstitutional parts; the rest of the law remains in effect after it is severable from invalid provisions |
| 2 | Nature of nullification | Under this doctrine, laws are not nullified but temporarily suspended until brought in line with the Constitution. | As per the doctrine of severability, only the unconstitutional portions of the law are nullified, and valid provisions remain enforceable. |
| 3 | Applicability | Applies to pre-constitutional laws that are contrary to fundamental rights. | Applies primarily to post-constitutional laws. |
| 4 | Purpose | To protect the rights of citizens by ensuring the supremacy of fundamental rights over conflicting laws | To maintain the functionality of laws by removing unconstitutional parts while preserving valid provisions. |
| 5 | Consequence | Once the inconsistency is resolved, the suspended law regains power and again comes into force. | After the removal of unconstitutional parts, the remaining provisions continue to be validly enforced. |
Landmark judgements
Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955)
Facts
In this case, a provision of the C. P. and Berar Motor Vehicle (Amendment) Act, 1947, authorised the monopoly of the State Government to take over the motor transport business in the Province. As this was pre-constitutional legislation, this provision was valid, but when the Constitution of India came into force in 1950, it became void as it was contrary to Article 19 (1) (g) of the Constitution. Even though the Constitution (First Amendment) Act, 1951, added clause 6 to Article 19, so as to authorise the government to monopolise any business, the constitutional validity of the Act was challenged, and the following issues were raised before the Apex Court.
Issues
- Whether the C.P. and Berar Amendment Act, 1947, which amended the Motor Vehicles Act of 1939, is constitutionally valid.
- Whether the effects of the Constitutional Amendments are retrospective or prospective in nature,
Judgement
The Supreme Court held that this law was merely eclipsed on the ground of violation of fundamental rights provided under Article 19. As soon as the eclipse is removed by the Constitution First Amendment) Act, 1951, the law begins to operate from the date of such removal. The Court further held that Article 19(6) was not retrospective in nature.
Keshav Madhav Menon v. the State of Bombay (1951)
Facts
In this case, Keshavan Madhava Menon (the petitioner) published a pamphlet without permission from the relevant authority in September 1949. As a result, he was charged with publishing unauthorised news sheets and newspapers under Section 15(1) of the Indian Press (Emergency Powers) Act, 1931. The Constitution of India came into force while the case was pending. He approached the High Court under Article 226 to question the constitutionality of Sections 15(1) and 18(1) of the Act because they breached his fundamental rights under Article 19(1)(a), which deals with freedom of speech and expression.
Issue
Whether a prosecution initiated before the enforcement of the Constitution of India should be continued despite the fact that the Act in question is unconstitutional due to a violation of fundamental rights under Article 19(1)(a) and 19(2).
Judgement
The Apex Court held that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation, and this rule of interpretation applies equally to the Constitution. The language of Article 13(1) is far from showing any intent to make it retrospective. Since the article is prospective, the conflict with fundamental rights would occur as of the date those rights were formed. In this case, the petitioner had no fundamental right under Article 19(1)(a) when he committed the offence in 1949; therefore, no relief was granted.
The Court further held these disputed Sections to be void on the ground of violation of fundamental rights only after the enforcement of the Constitution.
State of Gujarat v. Ambica Mills (1974)
Facts
After the bifurcation of the State of Bombay, the legislature of the State of Gujarat adopted the Bombay Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961, which amended the Bombay Labour Welfare Fund Act, 1953. The 1953 Act was enacted to provide for the establishment of a fund to finance initiatives promoting the welfare of workers in the state of Bombay. The respondents were a corporation incorporated under the Companies Act, 1956, and they challenged several aspects of that Act and the rules made under it. The High Court of Gujarat held that the Act violates Article 19 of the Constitution.
Issue
Whether a law infringes the fundamental rights of citizen-employees under Article 19(1)(f) can be challenged by the respondent, a non-citizen employer, on the grounds that the law is void also against non-citizen employers under Article 13(2).
Judgement:
The Court held that Ambica Mills, as a non-citizen, could not invoke Article 13(2) to declare the law void against them. The Court reasoned that if a law violates the fundamental rights of citizens under article 19(1)(f), it is void against citizens who have been conferred such rights, but it is operative in regard to non-citizens because the law is void only to the extent that the rights conferred on citizens are violated and non-citizens have no right under Article 19.
Conclusion
Thus, the application of the doctrine of eclipse is quite clear. While it can validate pre-constitutional laws that violate fundamental rights by allowing for Constitutional amendments, the same does not apply to post-constitutional laws. This is because pre and post-Constitutional laws have different standings under Article 13. With regards to pre-Constitutional laws, this doctrine allows for saving unconstitutional laws from being wiped out in exceptional circumstances by making those laws dormant until they can be revived in the future.
However, the question of whether the Doctrine can be extended to revive post-Constitutional laws is a matter of debate among jurists and judges as well. It has also raised fascinating constitutional questions that require unambiguous judicial decision, such as the exact meaning of the word “void” in Article 13(1) and (2) and whether the American concept of “relatively void” is applicable to the Indian scenario. The truth is that the Supreme Court has yet to make an unambiguous pronouncement on this topic. As of now, Ambica Mills decision is followed, and the Doctrine of Eclipse has not been applied to post-Constitutional statutes.
Frequently asked questions
What is the doctrine of eclipse?
The doctrine of eclipse is a principle that states that if there is anything that is inconsistent with the fundamental rights guaranteed by the Indian constitution, such a law or provision will be ineffective until the fundamental right is amended so that it no longer overshadows such law. When such inconsistency is removed, the law or the previously inoperable Section becomes valid and operative again. This doctrine aims to ensure that constitutional rights hold precedence over inconsistent laws, and in the event of any contradiction between a law or legal provision and the fundamental rights enshrined in the Indian Constitution, the said law or part thereof that contradicts these rights will be rendered non-functional until the fundamental right in question undergoes an amendment to no longer cast a shadow over said law. This doctrine was incorporated into the Indian Constitution through Article 13.
How does the doctrine of eclipse apply to pre-constitutional laws?
The Doctrine applies to laws that were enacted before the commencement of the Indian Constitution. If these laws conflict with fundamental rights, they are not nullified but rendered inoperative, creating a temporary eclipse over them.
Does the doctrine of eclipse apply to everyone, citizen and non-citizen?
In the case of citizens of India, yes, this doctrine is applicable to every citizen of India, as they have all the fundamental rights mentioned under Part III of the Constitution of India. But in the case of non-citizens, this doctrine is available only against those fundamental rights that are available to them, not against every fundamental right under Part III of the Constitution of India, as the case is with citizens.
When was the doctrine of eclipse formulated?
The Doctrine of Eclipse is not expressly mentioned anywhere in the Constitution of India, however, it derives its authority directly from Article 13 of the Constitution. Furthermore, this doctrine was upheld by the Madhya Pradesh High Court in the landmark case of Bhikaji Narain Dhakras v. the State of Madhya Pradesh (1955).
Which Article of the Constitution of India provides for the doctrine of eclipse?
Article 13(1) of the Indian Constitution affirms the Doctrine of Eclipse. It provides that any law enacted prior to the enforcement of the Constitution of India must be in compliance with Part III of the Indian Constitution.
Does the Doctrine of Eclipse render pre-constitutional laws permanently invalid?
No, any law or provision that is overshadowed under the Doctrine of Eclipse is not rendered obsolete permanently. It can be reinforced or revalidated through subsequent constitutional amendments or judicial decisions that eliminate the conflict with the Constitution, reinstating its function.
What is the significance of the Doctrine of Eclipse?
The Doctrine of Eclipse makes sure that laws that are in conflict with the Constitution of India do not lose their validity forever. Instead, it provides them with an opportunity to regain validity in the future. This doctrine provides a mechanism to resolve conflicts between laws passed prior to the enforcement of the constitution of India and the constitution itself.
Would Doctrine of Eclipse be applicable to post-constitutional Law?
The Doctrine of Eclipse is not applicable to post-constitutional legislation, as the Court stated in the case of Deep Chand v. State of Uttar Pradesh (1959). In this case, the Supreme Court ruled that post-constitutional legislation that violates a fundamental right is void ab initio therefore, the doctrine of eclipse would be irrelevant when it comes to post-constitutional law, and any Constitutional Amendment would not revive it. Hence, it is can be said that the Doctrine of Eclipse would not apply to post-constitutional law but would only apply to pre-constitutional law.
How does the Doctrine of Eclipse differ from the Doctrine of Repugnancy?
The Doctrine of Eclipse renders a law inoperative due to its conflict with fundamental rights, whereas the Doctrine of Repugnancy nullifies a law when it conflicts with a superior law in cases of legislative conflict between the Centre and States.
Can the Doctrine of Eclipse be invoked in cases of legislative conflict between states?
No, the Doctrine primarily deals with conflicts between pre-constitutional laws and fundamental rights. In cases of legislative conflict between states and the centre, the Doctrine of Repugnancy is invoked.
References
- The doctrine of eclipse in Constitutional Law: A Critical Reappraisal of its Contemporary Scope and Relevance
- Judgement: Bhikaji Narain Dhakras and Ors v. State of Madhya Pradesh (1955)
- The doctrine of eclipse – CuriousForLaw
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