DOCTRINE OF ECLIPSE

INTRODUCTION
Doctrine of eclipse means that " A law which is in
violation of fundamental rights of human will be dormant until
necessary amendment is made to the law in such a way that it should not
violate fundamental rights of human." On general it means that the
fundamental rights of human are more important than any laws.
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 only unenforceable, that is remains in a moribund
condition. “it is over shadowed by the fundamental rights and remains
dormant, but it is not dead.” Such laws are not wiped out entirely from
the statute book. They exist for all past transactions, and for the
enforcement of rights acquired and liabilities incurred before the present
Constitution came into force and for determination of right of persons
who have not been given fundamental rights by the constitution, e.g.,
non-citizens. It is only as against the citizens that they remain in a
dormant or moribund condition but they remain in operation as against
non-citizens who are not entitled to fundamental rights.
When a portion of the statute is declared
unconstitutional it is not rendered void ab initio but it only becomes un
enforceable that is remains in a moribund condition. In other words law
is over shadowed by the fundamental rights but remains dormant and not
dead.
The eclipse law are not wiped out entirely from the
statute. They exists for all passed transactions and for the enforcement of
rights acquire and liability incurred before that constitution came into
force.
Explanation
 When a Court strikes a part of law, it becomes unenforceable.
Hence, an 'eclipse' is said to be cast on it. The law just becomes
invalid but continues to exist. The eclipse is removed when another
(probably a higher level court) makes the law valid again or an
amendment is brought to it by way of legislation.
 The Supreme Court of India, in P Ratinam case, has held Section
309 of the Indian Penal Code, 1860 unconstitutional. Hence, the
section was under eclipse. However, a constitutional bench in Gian
Kaur case reversed this decision and held the section as
constitutional whereby the eclipse was removed and it because
operable again.

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 laws in Art 13(1).
Article 13 provides that any law which was made before the
commencement of constitution must be consistent with the part III of the
constitution (Fundamental Rights). If any statue is inconsistent 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
abolished by the Parliament. It will be treated as dormant or remains
eclipsed to the extent it comes under the shadow of the fundamental
rights.
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. A survey of the principal
federations in the Anglo-American world shows that the Doctrine has
been used primarily in cases where the enacting legislature undoubtedly
had the power to enact a law, but the law was rendered inoperative
because of supervening impossibilities, arising in the form of other
incompatible laws enacted by legislatures having superior powers to
enact such laws. A complete demarcation of powers between the federal
and state spheres is neither feasible nor desirable in a federal polity.
Necessarily, therefore, there must be provision for a sphere wherein
concurrent powers are exercised by the federal and the state legislatures.
It is in this area, that occasions for the use of the Doctrine have arisen.
Since both legislatures undoubtedly have the competence to enact laws,
in case both of them choose to exercise their powers, intriguing
constitutional questions arise as to the status of the lesser" State law. Is it
rendered null and void, or does the possibility of its prospective revival
subsist? Here, the Doctrine serves as a convenient mechanism for
resolving potential Centre-State disputes, in the event of repugnancy
between Central and State Acts.
(i) The Retrospectivity of Fundamental Rights
It is now well settled that the Constitution has no retrospective effect.9
However, one of the basic questions related to the origin of the Doctrine
of Eclipse that was raised in Keshavan, was whether fundamental rights
are retrospective in operation. 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, in Keshauan, both Das and Mahajan, II., 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 established that, 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.
(ii) The Prospective Nature of Article 13(1)
Turning specifically to Article 13(0, the Court further held that every
statute is prima facie prospective unless it is expressly or by necessary
implication made retrospective. According to him, there was nothing in
the language of Article 13(1), to suggest that there was an intention to
give it retrospective operation. In fact, the Court was of the opinion that
the language clearly points the other way. 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."
A. Can the Doctrine be Applied to Post-Constitutional 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?
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? 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 Saghir Ahmed v. State of U.P., a Constitution Bench of the Apex
Court unanimously stated that the Doctrine could not 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 amendments. 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 post-Constitutional law violates a fundamental right
like Article 19 which is granted to citizens alone, it would remain valid
in relation to non-citizens. P 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.33 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 still-born and void ab initio, and therefore, in order to make
it apply to citizens, the law would have to 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,34 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,

Case references:
 The Supreme Court of India, in P Ratinam case, has held Section
309 of the Indian Penal Code, 1860 unconstitutional. Hence, the
section was under eclipse. However, a constitutional bench in Gian
Kaur case reversed this decision and held the section as
constitutional whereby the eclipse was removed and it because
operable again.
Keshavan Madhava Menon v. The State of Bombay :

 The law in question was an existing law at the time when the
Constitution came into force. That existing law imposed on the
exercise of the right guaranteed to the citizens of India by article
19(1)(g) restrictions which could not be justified as reasonable under
clause (6) as it then stood and consequently under article 13(1)
that existing law became void “to the extent of such inconsistency”.

 The court said that the law became void not in toto or for all
purposes or for all times or for all persons but only “to the extent of
such inconsistency”, that is to say, to the extent it became
inconsistent with the provisions of Part III which conferred the
fundamental rights on the citizens.

Bhikaji Narain Dhakras vs The State Of Madhya Pradesh:

 The same principle is applied in this case in SC. They exist for the
purposes of pre-Constitution rights and liabilities and they remain
operative, even after the commencement of the Constitution, as
against non-citizens.

 It is only as against the citizens that they remain in a dormant

or moribund condition.

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
only to the extent of such inconsistency 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.

Doctrine of eclipse is dealt in article 13(1) of constiturion. supreme court

in bikaji case said that according to this article any law which was
passed prior to 1950 that is before adopting our constitution is void if it
infringes upon any of the provisions of part 3 i.e fundamental rights of
constitution.

Thus, any law prior to independence if infringes upon or is in conflict

with FR then it to be void up to that inconsistency. it doesnt make the
whole law void but that part of law is void that causes conflict with
fundamental rights.

that law is not dead but is at disposal of parliament and put into schedule
9 of constitution. if in future the fundamental rights are amended and
such amendment makes the impugned law valid then it will again be
operative.
elements-

1. preconstitutional law

2. in conflict with fundamental right

3. the law doesnt become a dead letter but only inoperative

4. if there is an amendment to the FR in future it will automatically

make the impugned law operative.

for instance in rati ram case SC decided that s.309 was unconstitutional
as per A.21 of constitutuinal but later in gian kaur case it was heldd that
s.309 of IPC is constitutional. in the meanwhile s.309 was not amended
but it was only inoperative.

thus according to this doctrine fundamental rights eclipse the validity of

a pre constitutionl law upto its conflict with the fundamental rights of
constitution.

In the case of Keshavan Madhava Menon v. The State of Bombay[1],

the law in question was an existing law at the time when the
Constitution came into force. That existing law imposed on the exercise
of the right guaranteed to the citizens of India by article 19(1)(g)
restrictions which could not be justified as reasonable under clause
(6) as it then stood and consequently under article 13(1)[2] that existing
law became void “to the extent of such inconsistency”.

The court said that the law became void not in toto or for all purposes or
for all times or for all persons but only “to the extent of such
inconsistency”, that is to say, to the extent it became inconsistent with
the provisions of Part III which conferred the fundamental rights on
the citizens.
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
only to the extent of such inconsistency 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.