With the introduction of the Constitution of India and the inclusion of fundamental rights under Part III, the Constitution became the yardstick to judge the validity of all Indian laws. To assure the enforceability of fundamental rights, the Constitution-makers incorporated Article 13, which declares laws contravening these rights, invalid. Over the years, courts have recognized various doctrines and principles for this purpose, one of which is the Doctrine of Eclipse (the Doctrine).
The term ‘eclipse’ primarily refers to an occasion when one object casts a shadow over another. In reference to constitutional law, this Doctrine is based on the theory that the laws which are not in accordance with the fundamental rights do not become void ab-initio, however they get overshadowed by such rights and remain in moribund condition.[1] These laws don’t get completely eradicated from the statute, whereas they remain in dormant condition for citizens and are operative as against non-citizens who are not entitled to rights conferred under Part III.[2]
The Apex Court formulated this Doctrine in the landmark judgement of Bhikaji Narayan v. State of M.P.[3], wherein the provisions under Central Provinces and Berar Motor Vehicles (Amendment) Act, 1947 allowed the state government to monopolies over the entire motor transport business. After the enforcement of the Constitution in 1950, these provisions were violative of Article 19(1)(g) and hence became void. However, by the Constitution (First Amendment Act), 1951, Article 19(g) was revised authorizing the government to monopolise over such businesses. It was contended by the petitioners that being declared void under the Article 13(1), this Act could not be reinstated.
The Hon’ble Court in this case held that the laws that become inoperative after the commencement of the Constitution, do not die altogether. These impugned laws just get overshadowed by the fundamental rights, therefore by the effect of the amendment they could get free from blemish or infirmity.
Whether Article 13(1) is Retrospective or Prospective in Nature?
This Doctrine promotes the notion of fundamental rights being prospective in nature. It only extends to or can be enforced in case of pre-constitutional law which is dealt under Article 13(1), that says, “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.”
Questions regarding the retrospective and prospective nature, and the implication of the term ‘void’ in Article 13(1) were raised in the leading case of Keshavan Madhava Menon v. State of Bombay [4], wherein the petitioner was accused under the India Press (Emergency Powers) Act, 1931 for publishing pamphlet in 1949 without the permission. This was an ongoing case when the constitution came into force. The appellant argued that, with the commencement of the Constitution, the Act becomes inconsistent with the Article 19(a) of the Constitution and hence makes it void ab-initio.
The Supreme Court held that since the Constitution came into effect after the proceedings started against him, Article 13(1) could not apply in this case. It was then settled that the Article 13(1) has no retrospective effect and is prospective in nature. This judgement was further supported in many cases. The court also held that the term ‘void’ did not mean completely eradicating such laws from the statute. Such laws just get eclipsed by the fundamental rights and can be reinstated through an amendment.
Can the Doctrine be Applied to Post-Constitutional Laws?
Clause (2) of Article 13 of the Constitution prohibits the State from enacting legislation that deprives or restricts fundamental rights. If the State does so, then these legislations will be declared ultra vires and void to the extent that it violates the rights. These laws are still-born and cannot be revived by a constitutional amendment. A declaration by the court of their invalidity is needed even though they are void ab-initio.[5]
In a Supreme Court case[6], it was held that post-constitutional laws unlike pre- constitutional laws are void ab-initio and cannot be revived with the subsequent amendment in the Constitution. This was further upheld in Mahendra Lal Jain v. State of U.P.,[7] wherein it was held that this Doctrine is applicable only in case of Clause (1) i.e., pre-constitutional laws, and not in case of post-constitutional laws. There is a clear distinction between these two laws. The pre-constitutional law is null and void only after the Constitution was enacted and not from its inception. On the other hand, a post-constitutional law is null and void from the very start, and as a result, it cannot exist.
However, the views expressed in Deep Chand case and Mahendra Lal Jain case were reversed in the Apex Court case of State of Gujarat v. Ambica Mills[8] where the Court held that the post-constitution laws that violate constitutional rights are not void ab-initio in every case and for all occasions. There are several exceptions to the doctrine of absolute nullity, which is not a universal rule.
Can a Post-Constitutional Law that is Invalid Against Citizens be Applied to Non-Citizens?
In the above-mentioned case, the Court held that just like pre-constitutional laws, post-constitutional laws violating the fundamental rights are operative as against non-citizens because these rights are not available to them. Only those persons whose fundamental rights are contravened by any post-constitutional law can take advantage of the voidness of the law. In this case, the respondent challenged the validity of the Bombay Labour Welfare Fund Act. 1953 under Article 13(2) of the Constitution and argued that the provisions of the Act were inconsistent with fundamental rights of employees and employers. The Court held that the company was not a citizen and hence cannot claim that the right was taken or abridged by the provisions of the Act. This impugned act was therefore valid in respect to a non-citizen. The Supreme Court also observed that in respect to citizens, the post-constitutional laws have to be re-enacted to show their conformity with the constitution.
Conclusion
This Doctrine is very well formulated to provide maximum effect to the provisions and guarantee fairness. It saves unconstitutional laws, from being repealed entirely, and just render them to moribund condition. In general, to reinstate the unconstitutional statute, the legislature has to re-enact it. However, a statute under eclipse can be revived by the annihilation of the restriction that creates the traces of unconstitutionality. Therefore, avoids wastage of scarce time and money that could occur in the re-enactment of such statutes.
[1] DR. JN PANDEY, CONSTITUTIONAL LAW OF INDIA 73-74 (2020).
[2] State of Gujarat v. Sri Ambica Mills, AIR 1974 SC 1300.
[3] AIR 1955 SC 781.
[4] AIR 1951 SC 128.
[5] Md. Ishaq v. State, AIR 1961 ALL 532.
[6] Deep Chand v. State of U.P., AIR 1959 SC 648.
[7] AIR 1963 SC 1019.
[8] AIR 1974 SC 1300.
Author: Pratibha Maheshwari from Rajiv Gandhi National University of Law (RGNUL), Punjab.
Juris Centre 