DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

2015-16
FINAL DRAFT
Constitutional Law-I
Critical Analysis of the Doctrine of Eclipse

SUBMITTED TO: SUBMITTED BY:

MR. MAHENDRA PASWAN ARNAB ROY
ASSISTANT PROFESSOR (LAW) 3rd SEMESTER(ROLL. NO. 42)
SECTION: A

1
Acknowledgements
First of all I would like to thank our Honble Vice-Chancellor Dr. Gurdip Singh, our Dean
(Academics) Prof Dr. C.M. Jariwala, and our very own Asst. Prof. Mr. Mahendra Paswan for
letting me research on such an interesting topic and providing all the necessary resources
required to fulfill it successfully.

I would also like to thank my seniors and my dear batch-mates for providing the necessary
mental support to complete this project.

2
Contents

Table of Contents

Index of Authorities ...................................................................................................................... 4

Introduction................................................................................................................................... 5

Grounds for Invalidating a Law.................................................................................................. 6

The Advent of the Doctrine.......................................................................................................... 7

Rationale behind the Application of this Doctrine..................................................................... 9

Applicability of this doctrine to post-constitutional laws.......................................................... 9

Timeline of Cases with elaboration ........................................................................................... 10

The correctness of the Judgments ............................................................................................. 13

Answers to the questions listed/Authors Opinion................................................................... 15

Conclusion ................................................................................................................................... 15

References.................................................................................................................................... 16

3
Index of Authorities

Cases

Ashok Kumar Gupta v. State of UP, (1997) 5 SCC 201 ............................................................... 13

Behram, A.I.R. 1955 S.C. 123. ....................................................................................................... 7

Bhikaji Narain Dhakras v. The State of Madhya Pradesh and anr.,AIR 1955 SC 781 ........... 8, 13

Deep Chand v. The State of Uttar Pradesh , AIR 1959 SC 648................................................... 10

Govindji Halai v. B.M. Desai, A.I.R. 1956 S.C. 20.................................................................. 7, 12

K.K.Poonacha v. State of Kerala, (2010) 9 SCC 671................................................................... 12

K.O. Varkey v. State of Kerala ,1968 KLJ 799............................................................................. 13

Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128............................................... 7

Mahendra Lal Jaini v. State of U.P , AIR 1963 SC 1019............................................................. 11

N. Sohanlal Jain v State of Karnataka, ILR 1979 KAR 826........................................................ 12

Shreya Singhal v. Union of India, (2015) 5 SCC 1....................................................................... 15

State of Gujarat v. Ambica Mills, AIR 1974 SC 1300.................................................................. 11

State of Orissa v. Satyabati Panda and ors.,AIR 1961 Ori 196 ................................................... 13

4
Introduction
The Courts through judicial review exercise restraint on the legislative and executive organs of
the Government. It is the overseeing by the judiciary of the exercise of powers by other co-
ordinate organs of government with a view to ensuring that they remain confined to the limits
drawn upon their powers by the Constitution. This concept has its origins in the theory of limited
Government and the theory of two laws - the ordinary and the Supreme (i.e., the Constitution) -
which entails that any act of the ordinary law-making bodies that contravenes the provisions of
the Supreme Law must be void, and there must be some organ possessing the power or authority
to pronounce such legislative acts void.
With the adoption of a written Constitution and the incorporation of Part III conferring
Fundamental Rights therein, it was inevitable that the validity of all laws in India would be tested
on the touchstone of the Constitution in the form of Article 13, which has been invoked on
numerous occasions for declaring laws contravening them void. Courts have evolved various
doctrines like the doctrines of severability, prospective overruling, and acquiescence, for the
purposes of effectuating this Article. 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.
An extremely vital aspect of the Doctrine - which, in India, has thus far been largely overlooked
by legal theorists and practitioners alike - is its crucial role in the federal framework. Drawing
upon the analysis of the working of the Doctrine in the area of fundamental rights violations, this
absorbing facet will also be examined in detail by the author in the final part of this paper. Over
the course of this project the advent of this doctrine shall be discussed along with the shape
further decisions have given to this. Finally and most importantly the question of application of
this doctrine of eclipse to post-constitutional laws which are covered under Article 13(2) shall be
discussed. Finally, the author shall be disclosing his take on this subject and conclude this
endeavor.

5
Grounds for Invalidating a Law
Before going into the application of doctrine of eclipse, one has to note the grounds under which
a law enacted by the legislature can be declared void. There are two ways by which it can be
done:

1) By pronouncing that the legislature lacked competence in enacting such a law. The burden
of proving this is on the petitioner who challenges the validity of such a law. The competence of
the legislature in enacting the law has to be gauged from its jurisdiction and the list in which the
matter of enactment lies (Any law enacted by the State Legislature, if the matter comes under the
purviews of the Union List becomes void due to lack of legislative competence).

2) By showing that the law enacted violates constitutional limitations. Now, this is a broader
class and more commonly used. Constitutional limitations signify the restrictions placed by the
Constitution in express and implied terms. (Any law in contravention of Fundamental Rights
under Part III and 300-A of the constitution can be declared void and comes under this category).

Now, this distinction is very critical in a proper understanding of doctrine of eclipse. In the first
case the doctrine of eclipse cannot apply as the legislature operated beyond its competence while
enacting such a law. Whatever amendment is made, competence at the point when the law was
enacted cannot be granted. Therefore a law void due to lack of legislative competence is not
revived if legislative power is subsequently given to the legislature which enacted it.1 So, the
question of application of doctrine of eclipse to such laws evaporates.

Next, let us consider the second case. When a law enacted violates constitutional prohibitions, if
the law is adjusted to as to remove the blemish and make it synchronous with the constitution,
there is absolutely no problem for application of the doctrine. The Judicial attitude towards the
application of this doctrine to these laws has not been consistent. There are various aberrations to
propounded theories and thereby no consistency in law. With regards to pre-constitutional laws
the application of this doctrine is fairly constant. All judicial decisions have appreciated the
application of this doctrine to pre-constitutional laws. The rational involved is also fairly simple.
When these laws were passed, the constitutional prohibitions were not present as the Constitution
itself had no existence during that time. Thereby, the enacting body did not have an opportunity
to make these laws synchronous with the constitutional prohibitions. The doctrine of eclipse
1
H.M. Seervai, Constitutional Law of India(4th Edition) 415.

6
thereby gives a chance to such laws to accommodate into the already present scope of things
after they have been declared unconstitutional.

In this context, it must also be noted that in this connection, that Indian courts have in the past
tried to draw a distinction between laws void due to lack of necessary competence on the part of
the Legislature, and those void due to constitutional prohibitions. According to Venkatarama
Ayyar, J. in Behram, the legal effect of the declaration of unconstitutionality (and by implication,
the applicability of the Doctrine), differs depending upon whether the Constitutional prohibition
that has been infringed affects the competence of the Legislature to enact the law, or whether it
merely operates as a check on the exercise of a power which is within its competence.2 It is only
if the unconstitutionality is due to legislative incompetence, that such a law will be an absolute
nullity.

The Advent of the Doctrine

Questions regarding the retrospectivity of these rights and the import of the word "void" in
Article 13(1) of the Constitution, came up for deliberation in the leading case of Keshavan
Madhava Menon v. State of Bombay3, wherein a prosecution proceeding was initiated against the
appellant under the Indian Press (Emergency Powers) Act, 1931, in respect of a pamphlet
published in 1949. The present Constitution came into force during the pendency of the
proceedings. The appellant pleaded that the impugned section of the 1931 Act was in
contravention of Article 19(1)(a) of the Constitution, and by virtue of Article 13(1), was void.
Hence, it was argued that the proceedings against him could not be continued. This case raised
several challenging issues with respect to the Doctrine.

The first issue raised was whether the fundamental rights could operate retrospectively. The
Court answered that the 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. It was therefore held that Article 13(1)
can have no retrospective effect, but is wholly prospective in operation. This interpretation has
been upheld in subsequent cases.4 While discussing the implication of the word void, the Court

2
Behram, A.I.R. 1955 S.C. 123.
3
Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128
4
Govindji Halai v. B.M. Desai, A.I.R. 1956 S.C. 20

7
rejected the High Court's view that the meaning of the word "void" in Article 13(1) amounts to
"repeal" of the statute. It said that Article 13(1) only has the effect of nullifying or rendering all
inconsistent existing laws ineffectual or nugatory and devoid of any legal binding force or effect,
with respect to the exercise of fundamental rights, on and after the date of the Constitution's
commencement. 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. Thereby it gave birth to
the Doctrine of Eclipse in the Indian constitutional framework.

Thereafer in Bhikaji Narain Dhakras v. The State of Madhya Pradesh and anr.5, this
doctrine was applied for the first time. The petitioners here, engaged in motor business, suffered
when the Government amended section 58 of the Motor Vehicles Act, 1939. The amended
section permitted the Government to cancel all permits with adequate compensation and carry on
its monopoly. Subsequently, when the constitution came into force on 26/1/1950, the amendment
was challenged on the ground of violating Article 19(6) of the Constitution and the court
declared it unconstitutional as provided for under Art. 13(1). Subsequently, the Government
passed the 4th amendment on 27/4/1955 and changed 19(6) in such a way so as to adjust
monopoly of the Government and gave effect to the previously amended section. The
petitioners in this case challenged that the law which was already declared violating Art 19(6),
could not come into force because of the amendment. The Court however held the amended
section was not dead in any way. It was just eclipsed by the passing of the constitution and the
latter amended 19(6) removed the shadow and it came into force again. It was already operative
for non-citizens prior to the amended 19(6), and later it applied to citizens also.

Thereby, what the Court effectually said was that the law although it became unconstitutional
when the Constitution came into force, it was not repealed from the statute book. Subsequent
amendment to the Constitution made room for the validity of such law. So, the Government
could take recourse to this doctrine and it was not required to enact a new law for the same. The
doctrine of eclipse in spirit says that any law which has been declared void on the grounds of
violating constitutional prohibitions are not removed from the statute book. They continue to
remain in it but in a moribund condition. However, the legislature can give effect to such a law

5
Bhikaji Narain Dhakras v. The State of Madhya Pradesh and anr.,AIR 1955 SC 781

8
only after removing such constitutional prohibitions. There is no need to create a new law on the
subject if there had already been a law before.

Rationale behind the Application of this Doctrine.

The rationale behind the advent of this doctrine is fairly simple. It is not easy to pass a law in
India even when any political party is in majority. A lot of time goes into creating a draft which
encompasses all the aspects of the concerned subject. Apart from that it is really difficult to get it
passed by both the houses of the Parliament as inter alia political motivations play a huge part
into passing the law. Therefore the courts have come up with this doctrine which enables the
Parliament to give effect to a previously-declared void law after changing the prohibitions.

Applicability of this doctrine to post-constitutional laws

If we are to notice the trend of application of this doctrine to post-constitutional law, we will find
certain aberrations in the Courts attitude towards this issue. There are conflicting decisions of
the Apex Court and the High Court for that matter relating to the question. Some say that the
doctrine of eclipse should apply to post-constitutional laws and some say that they should not.
Leading commentators on the Constitution on India like H.M.Seervai and V.N.Shukla endorse
the former view however M.P.Jain and D.D.Basu support the latter.6 The reasoning given by the
former is that because there is not a major difference in the nature of laws (post-constitutional or
pre-constitutional), there should be application of doctrine of eclipse to these laws. The latter
however says that the language embodied in article 13(2) of the Constitution of India is different
from the language in article 13(1) and thereby there is a duty on the Parliament not to enact any
law which contravenes constitutional prohibitions. So, when the Parliament flouts its duty, it
cannot take recourse to such a doctrine to revive any such law. Over the course of the next few
pages, a comprehensive discussion of these judgments will be provided and finally an answer to
these questions shall be attempted:

1. Can a post-Constitutional law be revived by a subsequent Constitutional amendment

removing the Constitutional bar to its enforceability?

6
H.M.Seervai, V.N.. Shukla and T..K. Tope appear to, be in favour of the revival of post-Constitutional laws by
virtue of the Doctrine, whereas D.J. De, M.P. Jain, H.K Saharay and D.D. Basu have persuasively argued against it,
citing the impossibility of reviving an Act which never had any valid existence.

9
 2. 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?
3. 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?

Timeline of Cases with elaboration

The next case that tried to answer this was Deep Chand v. The State of Uttar Pradesh7. In this
case, although doctrine of eclipse was not needed to be discussed to arrive at a decision, the a
constitutional bench of the Supreme Court discussed one aspect of the same. The Court went on
to discuss Bhikaji case and its bearing on the doctrine of eclipse. The question that they
proceeded to answer was that when a post-constitutional law violated fundamental rights with
respect to citizens only and has been declared void, whether such a law could come back into
existence merely by removing the fault in that law( i.e., whether the doctrine would apply to this
case). The Court answered in the affirmative. It said that when the law will not stand in the
way of the exercise by the citizens of that fundamental right and, therefore, will not have any
operation on the rights of the citizens, but it will be quite effective as regards non-citizens. In
such a case the fundamental right will, qua the citizens, throw a shadow on the law which will
nevertheless be on the Statute Book as a valid law binding on non-citizens and if the shadow is
removed by a constitutional amendment, the law will immediately be applicable even to the
citizens without being re-enacted. It however did not talk about what would be the consequence
when such a law became void both with respect to citizens and non-citizens.

If we look into this judgment, this is a first one which answers the question of application of
doctrine of eclipse to post-constitutional laws. Effectually what it said was that when a law has
been declared void for violating fundamental rights given to citizens, the same would remain in
force qua non-citizens. This signifies that they shall not be repealed but shall still remain in the
statute book. Thereby an analysis of the judgment shall tell us that the Court has held that this
Doctrine does apply to post-constitutional laws.

7
Deep Chand v. The State of Uttar Pradesh , AIR 1959 SC 648

10
The next case in point is that of Mahendra Lal Jaini v. State of U.P8. After the Deep Chand case
where the Court held that the doctrine does apply to post-constitutional laws, a constitutional
bench of the Court in this case was of the opinion that all post constitutional laws which
contravene the mandatory injunction contained in the first part if Art. 13(2) are void and void as
laws passed without legislative competence, and the doctrine of eclipse does not apply to them.

This changed the whole perspective of the Doctrine of Eclipses application to post-
constitutional laws. So, this effectively overruled the Deep Chand case with respect to the law in
point. Now, the legislature could no longer take recourse to this doctrine when a law has already
been declared unconstitutional. This case is the most important case among all those discussed
here because it has been followed by a lot a judgments.

The next case that attempted to answer this question was State of Gujarat v. Ambica Mills9. The
respondents were a company registered under the Companies Act, 1956 and they challenged
certain provisions of a labour law and the rules made there under. The High Court held that the
impugned provisions violated Art. 19 and were void. The respondents challenged this in the
Supreme Court. A constitutional bench of the Supreme Court held however, that the Art. 19
provided protection to citizens and citizen-employees and it has been well established that
Corporation was not a citizen under Art. 19. The question which he proceeded to answer was
Even if a law takes away or abridges the fundamental rights of the citizens under Article
19(1)(f), whether it would be void and therefore non est?Mathew J. held that although the law
would become void as against the citizens, however, it would remain against non-citizens. It said
that if the meaning of the word 'void' in article 13(1) is the same as its meaning in article 13(2), it
is difficult to understand why a pre-Constitution law which takes away or abridges the rights
under article 19 should remain operative even after the Constitution came into force as regards
non-citizens and a post-Constitution law which takes away or abridges them should not be
operative as respects noncitizens. The fact that pre-Constitution law was valid when enacted can
afford no reason why it should remain operative as respects noncitizens after the Constitution
came into force as it became void on account of its inconsistency with the provisions of Part 111.
Therefore, the real reason why it remains operative as against non- citizens is that it is void only
to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness
8
Mahendra Lal Jaini v. State of U.P , AIR 1963 SC 1019.
9
State of Gujarat v. Ambica Mills, AIR 1974 SC 1300

11
is, therefore, confined to citizens, as, ex hypothesis the law became inconsistent with their
fundamental rights alone. Citing these reasons, the Court said that there could be no reason why
a post-Constitution law which takes away or abridges the rights conferred by article 19 should
not be operative in regard to non-citizens as it is void only to the extent of the contravention of
the rights conferred on citizens, namely, those under article 19.

So, after consideration of all the cases in point, this constitutional bench of the Supreme Court
was of the opinion that a post-constitutional law violating provisions of the Constitution could be
revived by the application of this doctrine. Hereafter the law became: Doctrine of eclipse
applies to post-constitutional laws.

The next case is N. Sohanlal Jain v State of Karnataka.10 A division bench of the Court opined
that the doctrine of eclipse was not applicable to post-constitutional laws. It said that an
amendment of the Constitution which came later cannot be invoked to validate an earlier
legislation which was unconstitutional when it was passed. It went on to say Under Article
13(2), there is a prohibition against the State to make law taking away the rights conferred by
Part-III of the Constitution and any law made in contravention, of Article 13(2) shall, to the
extent of contravention, be void. The said prohibition goes to the root of the matter and limits the
States power to make law; and the law made in spite of the prohibitions is stillborn law. The
doctrine of eclipse has no application to post Constitutional Law. It is applicable only to pre-
constitutional law.

This case had two laws to choose from: Mahendra case and Ambica Mills case. Although,
Ambica Mills was a more recent judgment, it chose not to follow it and did not apply the doctrine
to post-constitutional laws. This would go on create a problem which will be discussed later.

In K.K.Poonacha v. State of Kerala11, the Court held that doctrine of eclipse will apply to pre-
constitutional laws and not to post-constitutional laws. The Court went on to say that the
Constitution of India under Article 13(2) has put up a constitutional prohibition against any law
which violated Part III of the constitution. Thereby, it created a duty upon the State not to enact a
law which would go against these constitutional limitations. So, once the State indeed does so,
there is no easy way out for it later after the law has been declared unconstitutional (in case it

10
N. Sohanlal Jain v State of Karnataka, ILR 1979 KAR 826
11
K.K.Poonacha v. State of Kerala, (2010) 9 SCC 671

12
wants to take recourse to the doctrine of eclipse). Citing theses reasons the Court declared that a
post-constitutional law which has been declared void cannot be revived by only removing the
obstacle blocking it.

Also in Ashok Kumar Gupta v. State of UP12, the Court followed Mahendra Lal Case13 and said
that although pre-constitutional laws became void after passing of the constitution (26/1/1950),
all pre-constitutional laws were void ab initio.

In State of Orissa v. Satyabati Panda and ors.,14 the Orissa High Court following the Supreme
Court in Mahendra Lal said that he doctrine of eclipse clearly had no application to post-
constitutional laws as such laws were void ab initio in whole or part. By saying this, the Court
moved on to declare that any amendment to the Constitution would have no curative action on
the law and that it could not be saved as it was still born.

Thereafter in K.O. Varkey v. State of Kerala15 the Court following Mahendra Lal Case held that
the doctrine of eclipse must be confined to pre-Constitution laws, and a post-Constitution law
void for violating the provisions in the Chapter on Fundamental rights is void from its inception
and is not revived by an amendment of the constitution removing the ground which brought
about the voidness.

The correctness of the Judgments

In Bhikaji case16 the Apex Court applied this doctrine and held that the Legislature can take the
benefit of this doctrine and it could remove the blemish in the existing law to accommodate the
pre-constitutional laws which had been declared void under the grounds of violating
constitutional provisions. This was a rather unqualified statement made by the Court and
therefore the doctrine required further modifications by the subsequent benches to apply it to
cases. The next case which discussed this issue was the Deep Chand case17. The Court qualified
the doctrine and said that all post-constitutional laws which had been declared void on the
grounds of violating fundamental rights qua citizens continued to exist qua the non-citizens. In

12
Ashok Kumar Gupta v. State of UP, (1997) 5 SCC 201
13
AIR 1963 SC 1019
14
State of Orissa v. Satyabati Panda and ors.,AIR 1961 Ori 196
15
K.O. Varkey v. State of Kerala ,1968 KLJ 799
16
Bhikaji Narain Dhakras v. The State of Madhya Pradesh and anr.,AIR 1955 SC 781
17
Deep Chand v. The State of Uttar Pradesh , AIR 1959 SC 648

13
Mahendra Lal Jaini case18, the Court issued a broad statement saying that all post-
constitutional laws violating Article 13(2) of the Constitution were void under the grounds of
Legislative incompetence as the language of 13(2) bars the Parliament from enacting any law to
the contrary. In effect, the Court in this case differed from the Deep Chand case. Deep Chand
case answered one aspect of the question when it answered that post-constitutional laws declared
void would be operative against the non-citizens if the law had been declared void with respect
to citizens only. This effectively qualifies the doctrine of eclipse. Thereby, it can be concluded
that the Mahendra Lal Jainin case laid down a new rule when it said that post-constitutional laws
wont be amenable to doctrine of eclipse without any exception and overruled Deep Chand case.
The bench strengths of both the Courts were same (constitutional bench) and thereby it was
within the competence of Mahendra Lal Jaini to overrule Deep Chand.

Subsequently the Ambica Mills19 case came. In this case, a constitutional bench of the Court
refused to ally with the Mahendra Lal Jaini decision and again qualified void post-constitutional
laws with respect to doctrine of eclipse. It concurred with Deep Chand and said that post-
constitutional laws declared void on the grounds of violating fundamental rights of citizens only,
continue to operate with respect to non-citizens and thereby the doctrine of eclipse applies to
them. If subsequently the fundamental rights of the citizens are adjusted in such a way as to
make way for the already declared void law or if the flaw in the law is rectified, it continues to
be operative with respect to citizens. So, in effect, Ambica Mills again overruled the Mahendra
Lal Jaini case (which was again within its competence as the bench strength was same). So, at
this point if someone was to enquire about the status of doctrine of eclipse, the answer would be
provided by Ambica Mills case. However, the problem arose when subsequent decisions of the
Court did not follow Ambica Mills but rather followed Mahendra Lal Jaini.

All the judgments which followed Mahendra Lal Jaini and refused to follow Ambica Mills have
been delivered by lesser benches of the Supreme Court and sometimes even High Courts. All the
cases doing the same: N. Sohanlal Jain v State of Karnataka, K.K.Poonacha v. State of Kerala,
Ashok Kumar Gupta v. State of UP, State of Orissa v. Satyabati Panda and ors, State of Orissa v.
Satyabati Panda and ors and K.O. Varkey v. State of Kerala are per incuriam. This is because it

18
Mahendra Lal Jaini v. State of U.P , AIR 1963 SC 1019.
19
State of Gujarat v. Ambica Mills, AIR 1974 SC 1300

14
is beyond their competence to overrule decisions of larger benches. Every decision therefore is a
wrong application of law and not befitting the standards set by the Supreme Court of India. So,
actually, if one were to ascertain the correct position of Doctrine of Eclipse, it would be that the
Doctrine of Eclipse applies to post-constitutional laws.

Answers to the questions listed/Authors Opinion

1. As the Doctrine of Eclipse applies to post-constitutional laws, any constitutional
amendment can revive a post-constitutional law declared void by the Court. As has been
done in Bhikaji Narain case, the same can be thereafter done to any post-constitutional
law declared void for violating constitutional prohibitions.
2. Yes, even if a post-Constitutional law violates rights conferred on citizens alone, it does
remain valid and operative qua non-citizens like foreigners and companies. Lets take the
example of Shreya Singhal v. Union of India20 where section 66A of the Information
Technology Act was declared unconstitutional violating Article 19(1)(a) of the
Constitution. Such a provision is still valid qua non-citizens. So, if a foreigner posts
something grossly offensive, any action taken in pursuance of section 66A would be
legally justified.
3. Yes, an amend to the Act in question so as to remove the blemish will revive the law in
question and it will not have to be re-enacted as a whole. When fundamental rights are
not being violated and doctrine of eclipse applies to post-constitutional laws as well, there
is no way in which anyone can say that this is not the case.
Thereby, these are the answers to the questions which could arise when post-constitutional laws
with respect to doctrine of eclipse as a topic is up for discussion.

Conclusion
The Doctrine of Eclipse exemplifies a subtle, nuanced aspect of the theory of Constitutionalism
and the rule of law; and the fundamental distinction that it postulates between lawfulness and
unlawfulness. 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-

20
Shreya Singhal v. Union of India, (2015) 5 SCC 1.

15
enactment, a statute under eclipse is revived by obliteration of the limitations generating the
taint of unconstitutionality.
The main question dealt with by this project 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 has been no unambiguous pronouncement by the Supreme Court on
this issue following Ambica Mills, and thus far, the Doctrine of Eclipse has not been applied to
post-Constitutional laws, a position with which the author is unable to agree. As it has been
shown that Ambica Mills has effectively overruled Mahendra Lal Jiani and has not yet been
overruled by any case, the Courts in India are bound to accept the law laid down by Ambica
Mills.
Another reason which could be attributed to application of this doctrine to post-constitutional
laws could be that there is no pragmatic difference between a post-constitutional and a pre-
constitutional law. Although, the author understands that there is a difference in the language
used in Article 13(1) and (2), and that there is an inherent bar on the State to make laws which
contravene Part III of the Constitution, it must be noted that the reason for declaring them void
is the same which is that they contravene constitutional prohibitions. So, without delving into
technicalities, logical reasoning dictates that there is no reason why this Doctrine should not be
applied to post-constitutional laws as well.

References
This project would not have been complete, had we not consulted renounced sources and
compared their opinion. By mentioning the references, I would like to extend our heartfelt
gratitude to them.

Books:

i. M.P.Jain, Indian Constitutional Law, 7th Edition.

ii. H.M.Seervai, Constitutional Law of India, 4th Edition.
iii. D.D.Basu, Commentary on the Constitution of India.

16
Web Sources and Journals:

i. Manupatra, the Pioneers in online legal research in India available at

http://www.manupatrafast.in/
ii. SCC Online - Indias premier legal database available at http://www.scconline.com/
iii. Westlaw India available at http://www.westlawindia.com
iv. India Case Laws available at https://indiancaselaws.wordpress.com/

Law Reporter:

i. All India Reporter (A.I.R.)

ii. Supreme Court Cases(S.C.C.)

17