2.

Doctrine of Eclipse

The doctrine of eclipse says that any law which is inconsistent with fundamental rights is not valid.
Such a law is not totally dead but is overshadowed by the fundamental right. The inconsistency
(conflict) between the impugned law and
fundamental right can be removed by introducing constitutional amendment to the relevant
fundamental right so that eclipse vanishes and the entire law becomes valid.

In other words, till the time a provision of law violates a fundamental right guaranteed by the Indian
Constitution, it is dormant and inoperative. But if such fundamental right is amended by the
Parliament and thereby, the law no more violates such fundamental right, then in such a situation
the law becomes alive and operative. These eclipsed laws exist for all post transactions and for the
enforcement of the rights acquired and liabilities incurred before the commencement of the
Constitution. It is only against the citizens of the country that they remain dormant and inoperative,
but they remain in operation against the non-citizens who are not
entitled to fundamental rights guaranteed by the Constitution.

In Bhikhaji v. State of Madhya Pradesh, the provisions of C.P. and Berar Motor Vehicles (Amendment)
Act 1948 authorized the State Government of M.P to take up the entire motor transport business in
the Province to the exclusion of motor transport operators. This provision was valid when enacted,
but became void when the Constitution in 1950 commenced as it violated Article 19(1)(g) of the
Constitution. However, in 1951 Clause (6) of Article 19 of the Constitution was amended by the
Constitution (1st Amendment) Act, which authorized the Government to monopolize any business.
The Supreme Court observed that the objective of the amendment was to remove the eclipse and to
make the impugned Act free from any infirmity. It became enforceable against citizens as well as
non- citizens after the constitutional impediment was removed.

In Keshava Madhava Menon v. State of Bombay, Article 13 not retrospective in effect.-Article 13 (1) is
prospective in nature. All pre-Constitution laws inconsistent with a Fundamental Right. will become void only after
the commencement of the Constitution. They are not void ab initio. Such inconsistent law is not wiped out so far
as the past Acts are concerned.
A declaration of invalidity by the Courts will, however, be
necessary to make the laws invalid. The Supreme Court in Keshaya Madava Menon v. State of Bombay,?
observed :
"There is no Fundamental Right that a person shall not be prosecuted and punished for an offence committed
before the Constitution came into force
So far as the past Acts are concerned the law exists notwithstanding that it does not exist with respect to the
future exercise of the Fundamental Right."
In that case, a prosecution proceeding was started against the petitioner under the Press (Emergency Powers)
Act, 1931 in respect of a pamphlet pub-lisbed in 1949.
The present Constitution came into force during the pendency
of the proceeding in the court. The appellant contended that the Act was inconsistent with the Fundamental Right
conferred by Art. 19 (1) (a) of the Constitution hence void, and the proceeding against him could not be conti-
nued.
The Supreme Court held that Art. 13 (1) could not apply to his case as the offence was committed before the
present Constitution came into force and therefore the proceedings started against him in 1949 was not affected.
The Supreme Court held that :
"As tbe Fundamental Rights become operative only on and from the - date of the Constitution, the question of the
inconsistency of the existing laws with those rights must arise from the date those rights came into being......
The voidness of the existing law is limited to the future exercise of Fundamental Rights. 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."
This does not mean' that a discriminatory procedure laid down by pre-Constitution Act is to be followed in respect
of pending proceedings or fo respect of new proceedings started in respect of pre-Constitution rights or liabi-
lities.? Though the substantive rights and liabilities acquired or accrued before the date of the Constitution remain
enforceable, nobody can claim bis rights and labilities to be enforced under a particular procedure which
becomes inconsistent with Fundamental Rights.®

In Deep Chand v. State of Uttar Pradesh, the Supreme Court held that a post- Constitutional law is
void from its inception if it is found to be inconsistent with the Fundamental rights, but, a pre-
Constitution law having been validly enacted earlier to the commencement of the Constitution
would continue in force so far as non- citizens are concerned after the Constitution came into force.
This is so because prior to commencement of constitution legislature had the competence to pass
such act but after the commencement of the Constitution, the legislature does not have the
competence to pass.

In Shankri Prasad v. Union of India, the constitutional validity of Constitution (1st Amendment) Act,
1951, which curtailed the right to property, was challenged. The Court held that the power to amend
the Constitution under Article 368 also included the power to amend fundamental rights
enumerated in Part III of the Constitution and that the word “law” in Article 13(3) of the Constitution
includes only an ordinary law made in exercise of the legislative powers and does not include
Constitutional amendment which is made in exercise of constituent power. Therefore, a
Constitutional amendment will be legally valid even if it abridges or takes any of the fundamental
rights.

In Mahendra Lal Jaini v. State of U.P., the Court said that Article 13(1) of the Constitution recognizes
the existence of pre-Constitutional laws which were valid when enacted, and therefore could be
revived by the doctrine of eclipse and Article
13(2) provides for a direction to the State to not to make a law which takes away or abridges the
rights conferred by Part III of the Constitution. The legislative power of Parliament of India and State
Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore,
subject to Article 13(2).

Doctrine of Eclipse : other relevant points

The Judiciary is the guardian of the rights provided for in the Constitution of India. It is the job of the judiciary to
restrain the actions of the Legislature and the Executive where they are infringing upon these rights. When the
Constitution was adopted on January 26, 1950, with it came, the fundamental rights that are guaranteed to the
citizens.
There were several existing laws at the time when the Constitution was adopted, some of which were in direct
conflict with fundamental rights, so in order to determine the validity of these laws the Supreme Court came up
with certain principles/doctrines, one of which was the Doctrine of Eclipse.
o This doctrine emanates directly from Article 13(1)of the Constitution that is a part of the fundamental
rights, which states, "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."

o The doctrine of eclipse envisages fundamental rights as prospective in nature.

o It states that a pre-constitutional law inconsistent with the fundamental rights is not a nullity or void ab
initio but only remains unenforceable, i.e., remains in a dormant state.

o They exist for all past transactions, i.e., for rights and liabilities that were acquired before the
Constitution came into being.
 o These laws also remain applicable to individuals who have not been given fundamental rights, for
example, non-citizens.

o Therefore, the impugned law remains hidden behind the fundamental rights and can become operative
again if and when the fundamental right it is inconsistent with is amended.

o In the case of FN Balsara, the Court declared Section 13(b) of the Bombay Prohibition Act of 1949 as
void because it violated Article 19(1) (f) of the Constitution. The Court again held that only the part of the
statute that is violative of Part Ill is inoperative and not the whole Statute.

Conclusion
Thus, the application of the doctrine of eclipse is quite clear.
While it can validate pre-constitutional laws that violate fundamental rights by allowing for Constitutional
amendments, the same does not apply to post-constitutional laws. This is because pre and post-Constitutional
laws have different standings under Article 13. With regards to pre-Constitutional laws, this doctrine allows for
saving unconstitutional laws from being wiped out in exceptional circumstances by making those laws dormant
until they can be revived in the future.