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AMITY LAW SCHOOL, NOIDA, AUUP

Constitutional Law II
Doctrine of Eclipse & its applicability to post
constitutional laws

Karanjot Singh Mainee (A3256113119) LL.B. 3 year III sem. Sec
B
9/19/2014
Constitution is the will of the people whereas statutory laws are the creation of legislators
who are the elected representatives of the people. Where the will of the legislature declared in
statutes stand in opposition to that of the people declared in the Constitution the will of the
people must prevail.
- Supreme Court on Record Association v. Union of India, AIR 1994 SC 268: (1993) 4 SCC 441

Definition of Doctrine of Eclipse : It provides that a law made before the commencement of the
constitution remains eclipsed or dormant to be extent in comes under the shadow of fundamental rights
i.e., is inconsistency brought about by the fundamental rights is removed by the amendment to the
Constitution of India.
INTRODUCTION
In giving to ourselves the Constitution, We the People have reserved the fundamental freedoms to
ourselves. This reservation was incorporated by framers of our Constitution in Article 13. This article is
not only the source of the protection of fundamental rights, but also the expression of reservation. This
article ensures that the validity of all laws would be tested on the touch stone of the Constitution.
Nevertheless, it provides that all laws made before the coming into force of this Constitution and any
future law enacted by any authority in India have to stand thetest for their validity on the provision of Part
III of this Constitution. The scope and extent of article 13 of the Constitution has been a matter of debate
in various cases and has resulted into conflicting decisions of the Supreme Court. In the quest of
effectuating this Article, Courts have evolved various doctrines like the doctrines of severability,
prospective overruling, and acquiescence The Doctrine of Eclipse is one such principle, based on the
premise that fundamental rights are prospective in nature. As a result of its operation, "an existing law
inconsistent with a fundamental right, though it becomes inoperative from the date of commencement of
the Constitution, is not dead altogether." Hence, in essence, the Doctrine seeks to address the following
quandary: If a law is declared null and void for infringing on a fundamental right, and then that
fundamental right is itself amended such that the law is purged of any inconsistency with it, does the law
necessarily have to be re-enacted afresh, or can it revive automatically from the date of the amendment?
In other words, what is the precise nature of the operation of the Doctrine in the face of the general rule
that a Statute void for unconstitutionality is non-est and "notionally obliterated" from the Statute Book?
Inherent in the application of the Doctrine to such questions is the predicament of conflicting priorities.
What is to be determined here is whether, for the purpose of avoiding the administrative difficulties and
expenditure involved in re-enacting a law, a law which was held void on the very sensitive and potent
ground of violation of fundamental rights should, under special circumstances be permitted to revive
automatically. This also raises some profound questions about legislative competence and the interference
of courts in law making. These are the issues that this paper seeks to address.


DOCTRINE OF ECLIPSE
This doctrine is applicable to pre-existing laws only. It implies that an existing law which violates
fundamental right is not dead or void per-se but only becomes unenforceable. "It is over shadowed or
eclipsed by the fundamental rights and remains dormant but it is not dead." If by subsequent amendment
fundamental rights are amended in such a way as to give way to these laws, then these laws will again
become active.
WHETHER THE DOCTRINE IS APPLICABLE TO POST CONSTITUTIONAL
LEGISLATIONS?
Some laws are held unconstitutional by the courts, now in this scenario, the legal position that remains is
that though the law exists in statute books, because of a court decision they are inoperable, therefore in
law there is an eclipse cast upon their implementation. Doctrine of eclipse deals with pre constitutional
law Art 13(1).
Art 13 provides that any law which made before the commencement of constitution must be consistent
with the part III of the constitution. if any statue is inconsistence with the provisions of part III of the
constitution such statue shall become void. At the same time such statue shall not be treated as Dead
unless it is abolish by Indian Parliament. It will be treated as dormant or remains eclipsed to the extent it
comes under the shadow of the fundamental rights. Regarding the doctrine of eclipse few points need to
be considered. It is held to be applied only the Pre Constitutional Laws, and not to be post constitutional
laws.
Bhikaji v/s State of MP AIR 1955
The MP Government passed an Act in the year 1950 for nationalizing the motor transport before
commencement of the constitution. The statue was challenge by the petitioner under Art 19(1)(g). The
Center Govt. Amended Act 1955 on 27-4-1955 enabling the state to nationalize the motor transport. That
SC held that the statue of MP sate State nationalizing the motor transport 1950 was cured by the 4th
Amendment Act 1955 and therefore the Doctrine of Eclipse has been applied and the such Act is valid.
The above doctrine is important as regards the validation of void laws. Certain existing laws sometimes
may get eclipsed by reason of their clash with the exercise of fundamental rights contained under Part III
of the Constitution. There are certain pertinent questions in this context like whether the doctrine of
eclipse applies only to the preconstitutional laws or to the postconstitutional laws also, whether the laws
in force before the commencement of the constitution become void ab initio or void in to if they are
inconsistent with a fundamental right. And also what about the persons whose rights it does not affect:
does the voidness of the law depend upon the person whose fundamental rights it contravenes? The
guiding light can be traced to Article 13 which provides inter alia that 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. The voidness of such law is
limited to the extent of inconsistency with the provisions of Part III of the Constitution. The voidness of
law under Clause (1) does not imply voidness ab initio. In Keshavan Madhav Menon v State of Bombay
the effect of Article 13(1) was in question before the Court. The Court had to decide the import of Article
13 in this case. The broad issue in this case was whether a prosecution commenced before the
commencement of the Constitution, could be continued after the Constitution came into force if the
concerned Act became void given that it violated Article 19(1) (a) and (2) of the Constitution. Das J
observed that the prosecution could be continued because the provisions of the constitution were not
retrospective provided they were explicitly so declared.
It is axiomatic from the provisions of the constitution that it has no retrospective effect. Part III of the
constitution is prospective. And that being so, the existing laws can become, and can be rendered, void
from the date of the commencement of the constitution. An existing law becomes inoperative only from
the date of the commencement of the constitution. The very fact that it is inconsistent with the
fundamental rights does not make it a dead law. As far as the determination of rights and obligation
incurred before commencement of the constitution is concerned, such a law is a good law. In Bhikaji
Narayan v State of Madhya Pradesh, the Supreme Court formulated the doctrine of eclipse thus: The true
position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental
right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make
the impugned Act free from all blemish or infirmity. Therefore, the doctrine implies that the shadow cast
by the fundamental right can be removed by a subsequent amendment to the constitution, and once it is so
done, the law in its suspended or eclipsed state is thereby revived. It gets revived, freed from all
blemishes and infirmity. That is, the preconstitutional laws continue to be law though in an eclipsed
state. They are inoperative laws whose revival in post constitutional period is contingent upon a
subsequent amendment that would remove the shadow. In Keshavan Madhava Menon, Mahajan, C J
observed that: the part of the section of an existing law which is unconstitutional is not law, and is null
and void. For determining the rights and obligations of citizens the part declared void should be
notionally taken to be obliterated from the section for all intents and purposes, though for the
determination of the rights and obligations incurred prior to 26 January 1950, and also for the
determination of rights of persons who have not been given fundamental rights by the constitution. H M
Seervai comments: It is difficult to understand what is meant by notionally obliterated from the
section. it is submitted that there is no scope for an unconstitutional provision being notionally
obliterated. The theory of eclipseis quite inconsistent with any obliteration, actual or notional.
MEANING OF LAW: PRE AND POSTCONSTITUTIONAL LAW TANGLE
Rival opinions abound as to the application of doctrine of eclipse to pre and post constitutional law.
The implications of different opinions are profound and have a far reaching impact on the nature of law
as provided under Article 13 of the Constitution. It is the general view that doctrine of eclipse applies
only to the preconstitutional laws, and not to the postconstitutional laws. In Deep Chand v State of UP,
the Court held: ...[T]he doctrine of eclipse can be invoked only in the case of law valid when made, but a
shadow is cast on it by supervening constitutional inconsistency. In Mahendralal Jaini v State, the Court
observed:
The doctrine of eclipse will apply to preConstitutional laws which are governed by Article 13(1) and
would not apply to postConstitutional laws which are governed by Article 13(2). Unlike a law governed
by Article13 (1) which was valid when made, the law made in contravention of the prohibition contained
in Article 13(2) is a stillborn law either wholly or partially depending upon the extent of the
contravention. Such law is dead from the beginning and there can be no question of its revival under the
doctrine of eclipse [which]cannot confer power on the state to enact a law in breach of Article 13(2)
which would be the effect of the application of the doctrine of eclipse to postconstitutional laws.
However, interestingly in Bhikaji in which the Supreme Court enunciated the doctrine of eclipse, Das
ACJ made the following observation that tells a different story: All laws, existing or future, which are
inconsistent with the provisions of Part III or our Constitution, are, by the express provision of article 13,
rendered void to the extent of such inconsistency. Such laws were not dead for all purposes.They existed
for the purpose of preConstitution rights and liabilities and they remained operative, even after the
Constitution, as against noncitizens. It is only as against the citizens that they remained in a dormant or a
moribund condition.
It is clearly inferable that the above dictum did not make any distinction between pre and
postConstitutional laws. H M Seervai has commented that It is clear that these observations are not
restricted to Art 13 (1), which deals with the preConstitutional laws, but also to Art 13(2), which deals
with postConstitutional laws, because the Court did not rest its decision on the distinction made in
American decisions between preConstitution and postConstitution laws. The following submission of
Seervai sounds convincing:
[T]he theory of eclipse is based on the premise that a law which violates fundamental rights is not a
nullity or void ab initio, but remains unenforceable(that is, in a moribund condition); and secondly, it
implicitly recognizes the distinction between a law void for legislative competence and a law void for
violating fundamental rights.
DD Basu is of the view that as far as postconstitutional laws are concerned, the doctrine of eclipse is not
applicable. The same view is also shared by MP Jain. Be that as it may, in the State of Gujarat v Shri
Ambica Mills, though the doctrine of eclipse was not an issue, the Court through its decision made it clear
that the doctrine applies to both the preconstitutional as well as postconstitutional laws. Mathew J
observed that any statement that a law which takes away or abridges fundamental rights conferred
under Part III is still born or null or void requires qualification in certain situations. Although the general
rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognised
and acknowledged for all purposes and is no law and nullity, this neither universal nor absolutely true,
and there are many exceptions to it. It is submitted that the view which holds that void under Article
13(2) can only be void against persons whose fundamental rights are taken away or abridged by law,
seems reasonable and convincing. The law might be still born so far as the persons, entities or
denominations whose fundamental rights are taken away or abridged but there is no reason why the law
should be void or still born as against those who have no such rights. Mathew J in Ambica Mills makes a
valid point when he reasons:
[T]he real reason why it (preconstitutional law) remains operative as against noncitizens is that it is
void only to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness
is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their fundamental
rights alone. If that be so, we see no reason why a postconstitutional law which takes away or abridges
the rights conferred by Article 19 should not be operative in regard to the noncitizens as it void only to
the extent of the contravention of the rights conferredon citizens, namely, those under Article 19.
The voidness of preConstitution and postConstitution laws to the extent of contravention of
fundamental rights, proclaimed by Article 13(1) and 13(2) of the constitution has generated much judicial
controversy and confusion. One question pertains to the scope of voidness of such laws. Despite the rather
lavish use of expressions such as stillborn, law void ab initio, nonest, obliteration from the statute
book and repeal, it has been acknowledged by the Court, in a along line decisions, that the voidness
arising out of violation of rights conferred upon citizens does not entail voidness for all purposes. Such
law may apply in full force to non citizens. As to the question of deciding the voidness of law, ie when
does a law become void, we need to make a distinction between voidness and unenforceability. Does a
law which is unconstitutional on the ground of lack of legislative competence, stand on the same footing
as the law which is violative of constitutional prohibitions? Justice Venkatarama Iyer made a distinction
between a law made without legislative competence and a law which violated constitutional limitations on
legislative power. The former would be absolutely null and void and non est; the latter was simply
unenforceable. The unenforceability arises out of the fact that it is eclipsed by the provisions of
fundamental rights. When the long shadow of eclipse is removed, this type of law will be automatically
revived from the date of removal, and even retrospectively, if it were to be so provided. On the other
hand, a law void for lack of legislative competence does not so revive upon provision of such
competence; it has to be reenacted. Seervai observes:
[T]here is a clear distinction between lack of power and disregarding a restriction on power as regards a
part of the subject matter of that powerand the most important result of this distinction is that a
legislature having a legislative power can legislate conditionally on the limitation on its power being
removed, whereas a legislature not possessing legislative power cannot legislate at all.

DOCTRINE OF ECLIPSE TRACING ITS GENESIS AND EVOLUTION
Before analyzing the judgment of the Court in Ambica Mills Case and to know the correct legal position
on the Doctrine of Eclipse, it is quite pertinent to enquire into the evolution of this doctrine by evaluating
the Supreme Courts interpretation of article 13 (1). The Doctrine was inherited implicitly in the ruling of
the Supreme Court in Keshavan Case; it was further qualified by the dissenting opinion of Das J. in
Behram Case and was subsequently propounded as law in Bhikhaji Case.
The Decision in Keshavan Case
The origin of this doctrine can be traced back to the pronouncement of the Supreme Court in Keshavan
Madhava Menon v. State of Bombay, where the Court dealt with the questions regarding the
retrospectivity of fundamental rights and the interpretation of the word "void" in Article 13(1) of the
Constitution. However, there was no express wording by the Court on Doctrine of Eclipse but the opinion
of the Court laid down the founding stone for the doctrine. Article 13(1) provides that all pre-
Constitutional laws, in so far as they are inconsistent with fundamental rights, are void. If fundamental
rights are retrospective, then all pre-Constitutional laws inconsistent with fundamental rights must be void
ab initio. On this point, both Das and Mahajan, JJ., maintained that fundamental rights, including the
freedom of speech and expression, were granted for the first time by the Constitution and that in
September 1949, when proceedings were initiated, the appellant did not enjoy these rights. Hence, it was
establishedthat, as fundamental rights became operative only on, and from the date of the Constitution
coming into force, the question of inconsistency of the existing laws with those rights must necessarily
arise only on and from such date. On the construction of article 13 (1), Court said that the language of
article is clear and thus it is prospective in operation. This interpretation has been upheld in subsequent
cases. The majority rejected the view that the meaning of void in article 13 (1) amounts to repeal of
the statute. According to Das J.:

Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them
out altogether from the statute book, for to do so will be to give them retrospective effect which, we have
said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and
liabilities accrued before the date of the Constitution.
Dissenting Opinion of Das J. in Beharam Case Correct Ruling on Article 13 (1)
Before moving ahead, it is quite important to consider the opinion clash between Mahajan C.J. and Das J.
in Behram Khurshid Pesikaka v. State of Bombay. Mahajan C.J. after referring to the ruling of Keshavan
Case in relation to word void in article 13 (1), held that a pre- Constitutional law which is declared void
should be notionally obliterated from the Statute book for the purposes of determining the rights and
obligations of citizens. However, the same remains good law when a question arises for determination of
rights and obligations incurred before 26 January, 1950.24 Das J. dissented and said that to hold that the
invalid part was obliterated would be tantamount to saying covertly that the judicial declaration had to the
extend amended the section.
Authors like H.M. SEERVAI, have severely criticized the reasoning followed by Mahajan, C.J., because
of his use of the term notionally obliterated. According to SEERVAI, if the view of the Court in
Keshavan that the term void does not mean repealed, and that Article 13 cannot be read as obliterating the
entire operation of inconsistent laws, is taken to be correct, then there is no scope for an unconstitutional
provision to be notionally obliterated. Thus, the learned scholar supports the dissenting judgment of Das,
J. as the correct statement of the law which is backed by the earlier decision of the Court in Keshavan
Case.
THE IMPLICIT PROPOSITION EXPRESSED BHIKAJI CASE
The prospective nature of Article 13(1), and the limited connotation accorded to the word "void" in
Keshavan Case, which was further expounded by Das, J. in his dissenting opinion in Behram Case,
necessitated the enunciation of the Doctrine of Eclipse in the leading case of Bhikaji Narain Dhakras v.
State of Madhya Pradesh. In this case the provisions of pre- Constitutional law became void after the
commencement of the Constitution as they violated article 19 (1) (g). However, Article 19(6) was
amended in 1951, so as to permit such reasonable State actions.
It was argued on behalf of the petitioners that the impugned Act, being void under Article 13(1), was dead
and could not be revived by any subsequent amendment of the Constitution, but had to be re-enacted.
This contention was rejected by a unanimous decision of the Supreme Court, which laid down that after
the amendment of Article 19(6) in 1951, the constitutional impediment was removed. The Act, therefore,
ceased to be unconstitutional, and became revivified and enforceable. The crux of the decision was the
observation that an existing law inconsistent with a fundamental right, though inoperative from the date of
commencement of the Constitution, is not dead altogether. It continued to exist in respect of rights and
liabilities which had accrued before the date of the Constitution and remain operative as against non-
citizens.30 This ratio, in substance overruled the judgment of Mahajan J. in Behram Case. This
proposition has been affirmed by the learned scholar, Sheervai also. The Court, speaking through Das
A.C.J., formulated the Doctrine of Eclipse, in the following words
The true proposition is that the impugned law became, as it were, eclipsed, for the time being, by the
fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow
and to make the impugned Act free from all blemish or infirmity. He reiterated that such laws remained in
force qua non-citizens, and it was only against the citizens that they remained in a dormant or moribund
condition. This case was thus the foundation of the Doctrine, which has since been the subject of judicial
contemplation in numerous decisions.
THE AMBICA MILLS CASE
After the State of Bombay was bifurcated the legislature of the State of Gujarat enacted the Bombay
Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961, making various amendments in the
Bombay Labour Welfare Fund Act, 1953.12 The 1953Act was passed with a view to provide for the
constitution of a fund for financing activities for promoting the welfare of labour in the State of
Bombay.13 The respondents were a company registered under the Companies Act, 1956 impugned
certain provisions of the said Act, and the rules made thereunder.14 The High Court held that the
impugned provisions violated Art. 19 and were void.15 Consequently, as the Act was still-born and non
est, the respondents could challenge the demand made under the Act as not authorized by law.16 The
Supreme Court allowed the appeal and thus, the case came before a constitutional bench comprising of
A.N. Ray, C.J., H.R. Khanna, K.K. Methew, Y.V. Chandrachud and A. Alagiriswami, JJ.

THE MAIN ISSUE AND THE REASONING EMPLOYED BY THE SUPREME COURT
The principle issue considered by the Court was whether a law violating the fundamental rights under Art.
19 (1) (f) of citizen-employees can be challenged by the respondent, i.e. a non-citizen employer, on the
ground of law being void also against non-citizen employers under Art 13 (2). Based on the aforesaid
contentions, the Court came to the conclusion that the impugned provisions were not non est but were
valid laws as respect to non- citizens and thus the respondents cannot take the plea that its right to
property are being taken away or abridged without the lawful authority.
APPLICATION OF DOCTRINE OF ECLIPSE TO POSTCONSTITUTIONAL LAWS
In the author's opinion, three questions must be answered, in order to gauge the applicability of the
Doctrine to post-Constitutional laws. First, can a post-Constitutional law be revived by a subsequent
Constitutional amendment removing the Constitutional bar to its enforceability or the post-Constitutional
laws which are inconsistent shall be void ab initio and thus cannot be revived? Second, if a post-
Constitutional law violates rights conferred on citizens alone, (and thus becomes void qua them), does it
remain valid and operative qua non-citizens like foreigners and companies, or the law will be completely
null and void by the strict application of Article 13 (2)? Finally, can amending the Act in question so as to
remove the blemish revive the law in question, or will it have to be re-enacted as a whole? This Part will
examine each of these questions in detail.
In relation to the first question posed by the author, it is submitted that a post-Constitutional law which
abrogates or takes away fundamental rights will be void ab initio as against the persons on whom such
rights have been conferred. The author also contends that a post-Constitutional law cannot be revived by a
subsequent Constitutional amendment. The author rests his contention in the light of the judgment of the
Supreme Court in Sagir Ahmed v. State of U.P. in which a Constitution Bench of the Apex Court
unanimously stated that the Doctrine could not be applied to the impugned post-Constitutional law. A
legislation that contravened Article 19(1) (g) and was not protected by clause (6) of the Article, when it
was enacted after the commencement of the Constitution, could not be validated even by subsequent
Constitutional amendment. As regard to the operation of such law which takes away rights of citizens, as
against non-citizens, the author partially agrees with the following proposition by Das, C.J. in Behram
Case
But apart from this distinction between pre-Constitution and post-Constitution laws on which, however,
we need not rest our decision, it must be held that these American authorities can have no application to
our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of our
Constitution, are, by the express provision of Article 13, rendered void 'to the extent of such
inconsistency.' Such laws were not dead for all purposes. They existed for the purpose of pre-Constitution
rights and liabilities and they remained operative, even after the Constitution, as against non citizens.

The "American authorities" referred to in this case by the Supreme Court involved only post-
constitutional laws which were inconsistent with the provisions with the American Constitution which
were held to be still born, as it were. Thus, these American rulings clearly could not apply to the case of
pre-Constitutional laws that were perfectly valid before the Constitution's provisions took effect.
Nevertheless, this observation has been used to contend that the Court has not drawn any distinction
between pre-Constitutional and post-Constitutional laws. The author submits, however, that in the latter
part of the observation, the Court had in mind only the pre-Constitutional laws; otherwise it could not
have stated that the laws existed for the purpose of pre-Constitutional rights and liabilities and that they
remained operative even after the Constitution as against noncitizens.

In Deep Chand v. State of U.P. 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.
Mahendra Lal Jaini v. State of U.P.38 is the most authoritative decision for the impossibility of reviving
post-Constitutional laws by a Constitutional amendment. The Court based its finding on the two grounds.
First, the language and scope of Article 13(1) and 13(2) are different. Clause (1) clearly recognizes the
existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by
the Doctrine. Clause (2) on the other hand begins with an injunction to the State not to make a law which
takes away or abridges the rights conferred by Part IIVO The legislative power of Parliament and State
Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore, subject
to Article 13(2). Second, "contravention" takes place only once the law is made. This is because the
contravention is of the prohibition to make any law, which takes away or abridges the fundamental rights.
It is no argument to say that simply because the Amendment removes any subsequent scope for
contravention, the law is no longer in conflict with the Constitution.
However, the scope of the principles established above stands drastically curtailed in view of the Supreme
Court decision in State of Gujarat v. Shree Ambica Mills, wherein Matthew, J. held that like a pre-
Constitutional law, a post Constitutional law contravening a fundamental right could also be valid in
relation to those, whose rights were not infringed upon. For instance, when a postConstitutional law
violates a fundamental right like Article 19 which is granted to citizens alone, it would remain valid in
relation to non-citizens.40 Thus the term "void" in both the clauses of Article 13 makes a law only
relatively void, and not absolutely void.

This judgment has been used to contend that the Doctrine has finally been extended to all post -
Constitutional laws as well, since it recognizes that the law is not an absolute nullity and can operate
against non-citizens. The author submits that this is not the correct proposition of law. It is evident that a
law which abridges the rights of only citizens will remain enforceable against non-citizens and thus, there
is no question of the Doctrine of Eclipse even entering the picture. However, as regards citizens whose
rights were infringed, the law must be regarded as stillborn and void ab initio, and therefore, in order to
make it apply to citizens, the law would have to be re-enacted afresh. From this arises the final question:
When a post-Constitutional law is held inconsistent with a fundamental right, can it be revived by
amending the Act in question so as to remove the blemish, or will it have to be re-enacted as a whole?
The Delhi High Court in P.L. Mehra v. D.R. Khanna, has held that the legislation will have to be re-
enacted and that it cannot be revived by mere amendment. This view appears to the author to emanate
logically from the position adopted by the Supreme Court in treating such a law as void ab initio. There
is, therefore, no need to apply the Doctrine of Eclipse to post-Constitutional laws, as discussed above.
There is no direct Supreme Court ruling on this point. The closest authority on this issue is Shama Rao v.
State of Maharashtra, wherein an Act was challenged on the ground of excessive delegation, and pending
the decision, the Legislature passed an Amendment Act seeking to remove the defect.
The Supreme Court ruled by a majority that when an Act suffers from excessive delegation, it is stillborn
and void ab initio. It cannot be revived by an amending Act seeking to remove the vice, and must be re-
enacted as a whole. It is submitted that this ruling supports the proposition that an Act held invalid under
Article 13(2) would not be revived merely by amending it, but would have to be re-enacted. Hence, we
may safely infer that Ambica Mills does not destroy the force of the judicial pronouncements in Deep
Chand and Mahendra Jaini, but merely limits the scope of their operation, and that the Doctrine, as of
now, cannot be extended to post-Constitutional laws.
CONCLUSION
The Doctrine of Eclipse exemplifies a subtle, nuanced aspect of the theory of Constitutionalism and the
rule of law. It is used, in exceptional circumstances, to save unconstitutional statutes from being totally
wiped off the statute book, and to merely render them dormant or inoperative for the time being. While
ordinarily, a statute held unconstitutional cannot be revived except by re-enactment, a statute under
eclipse is revived by obliteration of the limitations generating the taint of unconstitutionality. The
question of whether the Doctrine can be extended to revive post Constitutional laws as well, has
engendered acrimonious debate among jurists and judges alike, and has also thrown up intriguing
constitutional questions that beg for decisive judicial determination, such as the exact connotation of the
word "void" in Article 13(1) and (2), and whether the American notion of "relatively void" is applicable
to the Indian scenario. The fact of the matter is that there have been no unambiguous pronouncements by
the Supreme Court on this issue following the Ambika Mills case, and thus far the DOCTRINE OF
ECLIPSE has not been applied to post-Constitutional laws, a position with which the author is, as afore
mentioned in this paper, inclined to agree. Ambica Mills has, thus helped in removing the contradictions
involved in the Supreme Court judgments we have been considering. The author concludes that the
proposition laid down by Ambica Mills Case is a sound logical foundation which is based on the correct
interpretation of Article 13 clause 1 and 2.