Doctrine of Eclipse

Meaning and Concept:

Before going into the deep root of the meaning and concept of the doctrine of eclipse, it will
be first relevant to look into the provision of Article 13 of the Constitution of India which is
closely connected with this doctrine. Article 13 states about the law inconsistent with or in
derogation of the fundamental rights. Article 13(1) states 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, i.e. Part III, shall, to the extent of such
inconsistency, be void. Article 13(2) states that 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. Article 13(3)(a) clarifies that in this
Article unless the context otherwise requires, law includes any Ordinance, order, bye-law,
rule, regulation, notification, custom or usage having in the territory the force of law. Article
13(3)(b) explains that “law in force” includes law passed or made by a 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and not previously repealed, notwithstanding that any such law or any part thereof may not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. Article 13(4) states that nothing in
Article 13 shall apply to any amendment of this Constitution made under Article 368.
The doctrine of eclipse can be invoked only in the case of pre-constitutional law made
validly. But, it has no application to post-constitutional laws infringing the fundamental
rights as they would be void ab initio in toto or to the extent of the contravention of the
fundamental rights. Eclipse may be total or partial cutting off [1] It means that the pre-
constitutional laws which are inconsistent with the Part-III of the Constitution must be cut
off. The scope of the doctrine of eclipse has been explained by the Apex Court in Bhikaji
Narain v. State of MP.[2] and in Deep Chand v. State of U.P[3] In Mahendralal Jaini v. State
of U.P.[4] it has been held that so far as pre-constitutional laws are concerned, the
amendment of the Constitution which removes inconsistency would result in the revival of
such laws by virtue of doctrine of eclipse. There is an inherent difference between Article
13(1) and 13(2) and such difference arises from the fact that one is law with the result that in
one case the law being not still bom and the doctrine of eclipse will apply and in the other
case the law being bom. In Kailash Sarkar v. Smt. Maya Devi[5] the Apex Court has
observed that when a person is converted to Christianity or some other religion, the original
caste remains under eclipse and so soon as during his/her life time the person is reconverted
to the original religion, the eclipse disappears and the caste automatically revives. In Dularey
Lodh v. 3rd Addl. District Judge, Kanpur,[6] it was held that where a decree would be lying

1.A.S. Hornby’s Oxford Advanced Learner Dictionary of Current English, Oxford University Press at p. 235.
2.AIR 1958 SC 781 2.AIR 1958 SC 781
3.AIR 2.AIR 1958 SC 781
3.AIR 1959 SC 648
4.AIR 1963 SC 101
5.AIR 1984 SC 600
6.AIR 1984 SC 1260
7.AIR 1962 SC 1517 1959 SC 648
dormant and could not be executed, once the bar placed by an Act is removed, by virtue of
the doctrine of eclipse the decree will revive and becomes at once operative and executable.
In Muhammadbhai v. State of Gujarat [7]the Apex Court has said that the doctrine of eclipse
applies to cases of rules, i.e. subordinate legislation.

Application of doctrine in the interpretation of Constitution of India :

The discussion is now confined to the application of foreign decisions and/or precepts in the
interpretation of the Constitution pertaining to the doctrine of eclipse where the Supreme
Court has followed or approved them.
In Deepchand v. State of U.P. [8] it was held by the Constitutional Bench comprising five
judges that the Constitution affirmatively confers power on the legislature to make laws
subject- wise and negatively prohibits it from infringing any fundamental rights. The
Constitution in express term makes the power of a legislature to make laws in regard to the
entries in the respective Lists of the Seventh Schedule subject to other provisions of the
Constitution and thereby circumscribes or reduces the said power by the limitations laid
down in Part III of the Constitution and it follows that law made in derogation or in excess of
that power would be void abinitio wholly or to the extent of the contravention as the case
may be and the doctrine of eclipse can be invoked only in the case of law valid when made
but a shadow is cast on it by supervening existing statutory inconsistency and when the
shadow is removed, the impugned Act is freed from all infirmities. The Supreme Court while
determining the question whether the Uttar Pradesh Transport Service (Development) Act,
1955 (hereinafter referred to as the U.P. Act) did not on the passing of the Motor Vehicles
(Amendment) Act, 1956, (hereinafter referred to as Central Act), become wholly void. It was
held that the scheme already framed under the U.P. Act did not destroy or efface the scheme
since this Act did not offend the provisions of Article 31 of the Constitution. The Supreme
Court borrowed the principle as aforesaid from the foreign authority.[9] It states : “From what
examination has been given to this subject, it appears that whether a statute is constitutional
or not is always question of power, that is, a question whether the legislature in the particular
case in respect to the subject-matter of the act, the manner in which its object is to be
accomplished and the mode of enacting it, has kept within the constitutional limits and
observed ihe constitutional conditions.”[10]
Relevant Case Law -

1) Bhikaji Narain Vs State of Madhya Pradesh (AIR 1955 SC 781 )

In this case provision of C.P. and Berar Motor vehicles Amendment Act, 1947 authorized the State
Government to make up the entire motor transport business in the province to the exclusion of motor
transport operators. This provision, though valid when enacted, became void on the be coming into
force of the Constitution in 1950 as they violated Article 19 (1) (G) of the Constitution. However,
1951, clause (6) of Article 19 was amended by the constitution first Amendment Act, as so
to authorize the Government to monopolies any business. The Supreme Court held that "the effect of
the amendment was to remove the shadow and to make the impugned Act free from all blemish or
infirmity".

It became enforceable against citizens as well as non-citizens after the constitutional impediment was
removed. This law was merely Eclipsed for the time being by the fundamental rights. As soon as the
eclipse is removed the law begins to operate from the date of such removal.

2) Deep Chand Vs State of Uttar Pradesh

In this case, the supreme court held that a post-constitutional law made under article 13 (2) which
contravenes a fundamental right is nullity from its Inception and a stillborn law. It is void ab initio.
The doctrine of eclipse does not apply to post-constitutional laws and therefore, a subsequent
Constitutional Amendment cannot revive it. The Doctrine of eclipse applies only to pre-
constitutional law and not post-constitutional law.
DOCTRINE OF SEVERABILITY

According to article 13, a law is void only “to the extent of the inconsistency or
contravention” with the relevant Fundamental Right. The above provision means that an Act
may not be void as a whole; only a part of it may be void and if that part is severable from
the rest which is valid, then the rest may continue to stand and remain operative. The Act will
then be read as if the invalid portion was not there. If, however, it is not possible to separate
the valid from the invalid portion, then the whole of the statute will have to go.
It is not the whole Act which would be held invalid by being inconsistent with Part III of the
Constitution but only such provisions of it which are violative of the Fundamental Rights,
provided that the part which violates the Fundamental Rights is separable from that which
does not isolate them. But if the valid portion is so closely mixed up with invalid portion that
it cannot be separated without leaving an incomplete or more or less mingled remainder the
court will declare the entire Act void. This process is known as Doctrine of Severability or
reparability.
The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras21, and held
that the preventive detention minus section 14 was valid as the omission of the Section 14
from the Act will not change the nature and object of the Act and therefore the rest of the Act will
remain valid and effective.
The doctrine was applied in D.S. Nakara v. Union of India, where the Act remained valid while

the invalid portion of it was declared invalid because it was severable from the rest of the Act. In

State of Bombay v. F.N. Balsara, it was held that the provisions of the Bombay Prohibition Act,

1949 which were declared as void did not affect the validity of the entire Act and therefore there

was no necessity for declaring the entire statute as invalid

The doctrine of severability has been elaborately considered by the Supreme Court in

R.M.D.C. v. Union of India, and the following rules regarding the question of severability has

been laid down:

(1) The intention of the legislature is the determining factor in determining whether the valid

parts of a statute are severable from the invalid parts.

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be

separated from the another, then the invalidity of a portion must result in the invalidity of

the Act in its entirety. On the other hand, if they are so distinct and separate that after
 striking out what is invalid what remains is itself a complete code independent of the rest,

then it will be upheld notwithstanding that the rest had become unenforceable.

(3) Even when the provisions which are valid, are distinct and separate from those which are

invalid if they form part of a single scheme which is intended to be operative as a whole,

then also the invalidity of a part will result in the failure of the whole.

(4) Likewise when the valid and invalid parts of a Statute are independent and do not form

part of a Scheme but what is left after omitting the invalid portion is so thin and

truncated as to be in substance different from what it was when it emerged out of

legislature, then also it will be rejected in its entirety.

(5) The severability of the valid and invalid provisions of a Statute does not depend on

whether provisions are enacted in same section or different section, it is not the form but

the substance of the matter that is material and that has to be ascertained on an

examination of the Act as a whole and of the setting of the relevant provisions therein.

(6) If after the invalid id portion is expunged from the Statute what remains cannot be

enforced without making alterations and modifications therein, then the whole of it must

be struck down as void as otherwise it will amount to judicial legislation.

(7) In determining the legislative intent on the question of severability, it will be legitimate to

take into account the history of legislation, its object, the title and preamble of it.

To some extent there exists inconsistency between the Thappar 25 and the R.M.D.C case. When an

offending provision is couched in a language wide enough to cover the restrictions within and

without the constitutionally permissible limits, according to Thappar case it cannot be split up if

there is a possibility of its being applied for purposes not sanctioned by the constitution, but

according to the R.M.D.C case such a provision is valid if it is severable in its application to an

object which is clearly demarcated from other objects falling outside the constitutionally
permissible legislation. The Supreme Court has itself pointed out this

aspect of the matter in Supdt. Central Prison v/sDdr. Lohia, left open the question. The Court,

however, stated that in the R.M.D.C. case, the difference between the two classes of

competitions, namely, those that are gambling in nature and those in which success depends on

shill, was clear cut and had long been recognized in legislative practice. But when the difference

between what is permissible and what is not permissible is not very precise, the whole provision

is to be held void, whether the view taken in the Romesh Thappar or the R.M.D.C. case is

followed.
 BIBLOGRAPHY

www.sodhganga,com
www.srdlawnotes.com
www.legalservicesindia.com
http://www.grkarelawlibrary.yolasite.com