Ananya Mishra
Edited by: Swaraj Kariya
Doctrine of Eclipse( Abstract):
Doctrine of Eclipse is embodied in Article 13 of our constitution. It says;
13. Laws inconsistent with or in derogation of the fundamental rights
(1).All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initio but become unenforceable or are eclipsed only till the extent to which they are inconsistent with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.
[1] What is the distinction between article 13 (1) and 13 (2)?
This reasoning was also adopted and argued upon in the landmark case of Bhikaji Narain Dhakras And Others v. The State Of Madhya Pradesh And Another[1]. It was held that “on and after the commencement of the Constitution, the existing law, as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right.”[2] Article 13(1) by reason of its language should not be read as having obliterated the entire operation of the inconsistent law. Such law is valid for all past transactions and also for enforcing any rights created pre-constitution. As some fundamental rights are only available to the citizens of nation the laws will nevertheless be enforceable with respect to non-citizens..
In the above mentioned case , the petitioners were engaged in business as stage carriage operator for a long period of time under permits granted under section 58 of the Motor Vehicles Act.
At the date when the said law came into force, there was no concept of fundamental rights and hence legislature was competent to frame such laws. This is the gist behind doctrine of eclipse.
The court also was of the opinion that article 13(1) had the effect of nullifying existing law which had become inconsistent with fundamental right as it then stood, ineffectual only to the extent till which it stands in contradiction with the constitution.
In Saghir Ahmed v. State of U.P. and others[3], it was held by this Court that if the word “restriction” was taken and read in the sense of limitation and not extinction then the law stating restriction on motor operator could not be justified under Article 19 (6).[4]
In Deep Chand v. State of U.P.[5] it was held that there is a clear distinction between the two clauses of Article 13. Under clause (1) a pre-Constitutional law subsists except to the extent of its inconsistency with the provisions of Part III, whereas as per clause (2), no post-Constitutional law can be made contravening the provisions of Part III and therefore the law to that extent, though made, is a nullity from its inception.
Is there any distinction between voidness in the case of Pre-Constitutional Law and Post-Constitutional Law?
Prior to the enactment of Constitution, when there were no fundamental rights, Article 299 of the Government of India Act, 1935 was a counterpart of Article 31 of present constitution. It had been construed by the Federal Court in Rao Bahadur Kunwar Lal Singh v. The Central Provinces and Berar[6] and in several other judgments referred to in Rajah of Bobbli v. State of Madras and it was held by the Federal Court that the word “acquisition” mentioned in Article 299 had limited meaning and not the sense of complete deprivation or any kind that has been given by this Court in Subodh Gopal Bose’s case(3) to that word acquisition appearing in Article 31 (2).[7]
Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Menon’s case. They still continue to be in force when they do not stand in conflict with fundamental rights . Precisely Article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with newly amended Article 19 (1) (g) read with clause (6) as it stands nugatorytot he extent they violate fundamental rights.
In the leading case of Keshavan Madhava Menon v. State of Bombay[8], a prosecution proceeding was initiated against the appellant under the Indian Press (Emergency Powers) Act, 1931, in respect of a pamphlet published in 1949. When the proceedings were pending, Constitution of India came into force. It was argued that the said provision is in contravention of Article 19 (1) and hence according to Article 13 (1) it stands void. Hence, it was argued that the proceedings against him could not be continued. On this point, in Keshavan[9], it was stated that fundamental rights came into picture after cause of action arose and suit was pending. Also that in September 1949, when proceedings were initiated, the appellant did not have these rights. Hence, it was established that, as fundamental rights became operative only on, and from the date of the Constitution coming into force, the question of inconsistency thus should be raised only on such date.
Hence, in essence, the Doctrine of Eclipse seeks to address the following quandary: If a post constitutional law is declared null and void as it stood in the violation of a fundamental right and then that fundamental right is itself amended such that the law is no more inconsistent with that particular right, does it need a re-enactment or does it stand automatically revived. In other words, what is the precise nature of the operation of the Doctrine in light of the general rule that a statute which is void is non-est.
Whether Doctrine of Eclipse is applicable with regard to Post-Constitution Laws?
Mahendra Lal Jaini v. State of U.P.[10] is the most authoritative decision for the impossibility of reviving post-Constitutional laws by a Constitutional amendment. The legislative power of Parliament and State Legislatures under Article 245 is subject to Article 13(2)
The Doctrine of Eclipse is based on the principle that a law which violates Fundamental Rights is not nullity or void ab initio but becomes unenforceable. If the relevant fundamental right is amended then the effect would be “to remove the defect that was overshadowing the act.
Can a Post-Constitutional Law, void against citizens be applicable to non-citizens?
In case the law contravenes a fundamental right limited to the citizens only, it will operate with respect to non-citizens, however it will not be revived qua-citizens merely by the amendment of the fundamental right involved. As Article 13(2) puts a restriction of conformity with fundamental rights on legislature with respect to the laws focusing on citizens , the laws have to be re-enacted showing their conformity with the constitution. A number of judgments have affirmed the position.[11]
Doctrine of eclipse with respect to non – citizens – We can of course conclude that pre-constitution laws are not dead for all purposes. With respect to non-citizens , they still remain applicable if they are void only with respect to the fundamental rights made available to the citizens of India. In such case, even the part of laws that stand nugatory with respect to citizens find application and power with respect to non-citizens.
Conclusion:
Hence, the Doctrine of Eclipse seeks to
address the following four major questions; If a post constitutional law is
declared null and void because it stands violative of a particular fundamental
right and the right itself gets amended and now the law no more stands in
violation of it, then should the law be declared valid again or it gets revived
automatically? In other words, we think upon the precise nature of the
operation of the Doctrine in light of the general rule that a Statute void for
unconstitutionality is non-est. and “notionally obliterated”
REFERENCES:
[1]1955 AIR 781, 1955 SCR (2) 589
[2] Ibid
[3]1954 AIR 728, 1955 SCR 707
[4] Article 19(6) Constitution of India, 1950.
[5]1959 AIR 648, 1959 SCR Supl. (2) 8
[6](1944)6FCR284
[7] Article 31(2), Constitution of India, 1950.
[8]A.I.R. 1951 S.C. 128.
[9] Ibid
[10]1963 AIR 1019, 1963 SCR Supl. (1) 912
[11]Tata Engineering and Locomotive Co.:Ltd. V. State of Bihar [1964] 6 S.C.R 885 ; R. C. Cooper v. Union of India, [1970] 2 S.C.R. 530
