Doctrine of Eclipse

Doctrine of Eclipse

The Doctrine of Eclipse is a doctrinal principle that advocates the concept of

fundamental rights being prospective. If any law made by the Legislature is
inconsistent with Part III of the Constitution, then that law is invalid and inoperative
to the extent of it being overshadowed by the Fundamental Rights. The laws are
hidden by the relevant fundamental rights, and the Eclipse is said to be cast on it. The
inconsistency of the eclipsed law can be removed only when the corresponding
fundamental right is amended. The shadowing is then removed, and the law becomes
automatically valid and operative again. 

In other words, a law that violates fundamental rights remains in a moribund

condition. It becomes inoperative, unenforceable and takes the shape of a sleeping
provision. It is not a nullity or void ab initio.  

Evolution

The development took place in three stages:

 Prospective/ Retrospective Nature of Article 13(1): Keshavan

The case of Keshavan had raised several challenging issues concerning the Doctrine,
in response, is the retrospective and prospective nature of Article 13(1) and the
meaning of the word ‘void’ in Article 13(1). In the landmark incident of Keshavan
Madhava Menon v. State of Bombay, the petitioner was prosecuted under the Indian
Press (Emergency Powers) Act of 1931 for publishing a pamphlet without permission.
The case was pending when the Constitution of India had commenced. The main issue
raised was if the provisions of the Act violated Article 19(1)(a). The Court held the
relevant regulations to be violating Article 19(1)(a) and that they are ‘void’ to the
extent of its inconsistency. The Court further held that fundamental rights are prima
facie prospective in nature and that the word ‘void’ did not mean repealing the statute
or provision.

 Nexus between Article 13(1) and Pre Constitutional Laws: F.N. Balsara &
Behram

Behram Khurshid Pesikaka v. State of Bombay was one of the earliest cases that
explained the reasonable nexus between Article 13(1) and the pre-constitutional laws.
In this case, the appellant was accused under Section 66(b) of the Bombay Prohibition
Act of 1949. Previously, Section 13(b) of the same Act was declared void in the case
of F. N. Balsara, because it was violative of Article 19(1)(f). The appellant took the
example of F.N. Balsara as a precedent. Then Section 66(b) was held inoperative and
unenforceable. The Court said that the part of the law would be unconstitutional and
not the whole law. Further held that the onus to prove citizenship and violative nature
of the provision lies on the accused.

 The Genesis and Evolution of the Doctrine of Eclipse: Bhikaji Narain

The concept, principle and applicability of this Doctrine were polished in the case of
Bhikaji Narain Dhakras v. State of Madhya Pradesh. In this case, the C. P. and Berar
Motor Vehicles Amendment Act of 1947 which had authorized the State Government
to regulate and take up all of the motor transport businesses, was challenged because it
was violative of Article 19(1)(g) of Part III. This Amendment Act was a pre-
constitutional law, and therefore, the Doctrine of Eclipse applied, and the provisions
of this legislative Act were made inoperative. Soon, in the year 1951, Article 19(1)(g)
was amended by the first Constitutional Amendment Act overturning the Eclipse and
making the law enforceable against citizens as well as non-citizens. The Supreme
Court opined that “the effect of the amendment was to remove the shadow and to
make the impugned Act free from all blemish or infirmity”. The Court also observed
that it will still be enforceable against non-citizens.

Salient features

The significant features and characteristics of the Doctrine are as follows:

1. Applicability to Pre Constitutional Laws

For the Doctrine to apply, the law must be valid at its inception and thus, can be
invoked only in the cases of pre-constitutional laws that have become operational with
the adoption of the Indian Constitution on 26th January 1950.

 Non Applicability to Post Constitutional Laws

They cannot apply to post-constitutional laws because they are invalid at their
inception and thus, cannot be validated by any subsequent amendment. But there are
certain exceptions to the same; non-citizens cannot take advantage of the voidness, as
the violation does not affect them.

 Conflict with the fundamental rights

The past law is supposed to be violating a fundamental right, only then can it be
overshadowed and be termed as inoperative.

 Inoperative

The Doctrine is based on the principle that the law which violates fundamental right is
not nullity or void ab initio but only becomes defective and unenforceable. The law is
overshadowed and hidden by the fundamental right that it violates. So, the law is not
dead but is only sleeping.
 Fundamental Right and Amendment

If there is an amendment to the relevant FR in future, it will automatically make the

impugned law operative.

Landmark judgements

 Scope and applicability

There has always been a legal struggle concerning the applicability of the Doctrine.
Does the Doctrine apply to Article 13(1), i.e. Pre-Constitutional Laws or Article 13(2),
i.e. Post-Constitutional Laws? This struggle has been the crux of the issue that has
been argued in several cases. The same was settled in the case of Bhikaji Narain and
Deep Chand.

In Deep Chand v. State of Uttar Pradesh, the Supreme Court very meticulously
observed that the Doctrine applies only to pre-constitutional laws as given under
Article 13(1). It does not apply to any post-constitutional law as under Article 13(2)
because the post-constitutional laws in violation of fundamental rights are void ab
initio and stillborn.

The judgment of Bhikaji and Deep Chand was upheld in the case of State of Gujarat v.
Ambica Mills, Mahendra Lal Jain v. State of Uttar Pradesh, P. L. Mehra v. D. R.
Khanna and Sagir Ahmed v. State of Uttar Pradesh.

 Doctrine of Eclipse and article 368

The debate on the validity and absoluteness of Article 368 started with the case of
Golaknath. In I. C. Golaknath v. State of Punjab, the Punjab Security and Land
Tenures Act of 1953 was challenged on the ground that this legislative Act had
violated the fundamental right to hold and acquire property and practice any
profession. The judgment left the Parliament Legislature with no power to break the
fundamental rights and provided them with restrictive amending powers under Article
368. Therefore, Article 368 was eclipsed.

The judgment of I. C. Golaknath was overturned in the legendary case of

Keshavananda Bharti v. Union of India[1], which stated that the Parliament could
amend the fundamental rights of the Indian Constitution but without changing the
basic structure of the Constitution and thus, removed the Eclipse from Article 368.

 Doctrine of Eclipse and section 309

The Doctrine is seen to extend to the provisions under the Indian Penal Code, as
observed in the cases of Rathinam and Gian Kaur. In the case of Rathinam v. Union of
India, Section 309 of IPC that criminalizes attempt to suicide was challenged. The
Court drew a parallel between Article 19 and Article 21 and observed that Article 21
holds right to live, so it also induces right not to live and holds Section 309 to be
unconstitutional, and therefore it was eclipsed. After two years, a five-judge
constitutional bench in the case of Gian Kaur v. State of Punjab reversed the Judgment
of Rathinam case and upheld the validity of Section 309. Thus, the Eclipse on Section
309 was removed and became operational again. 

Critical analysis and conclusion

Whether the Doctrine will apply to post-constitutional law has always engendered
acrimonious debates among jurists and juries. The lawmakers and researchers have
been prayerful for a final pivotal judicial adjudication and clarity upon the Doctrine
and on the word ‘void’.

Will the American impression of ‘relatively void’ be applied in India? Is there any
difference between ‘unlawfulness’ and ‘lawfulness’? Questions like these are yet to be
clarified by the Court of law. However, it should also be noted that the main objective
behind the Doctrine is to avoid any administrative and legislative hassle. It safeguards
the pre-constitutional laws and helps revive it automatically. It prevents wastage of
time and resources necessarily incurred in re-enacting.

In India, the Doctrine of Eclipse is one such theory that is said to safeguard the pre-
constitutional laws from being completely wiped out. It gives us a very refined,
nuanced aspect of the rule of law. Theorists believe that if there were no Doctrine of
Eclipse, then constitutionalism would’ve been compromised. This theory has helped
break the thin line between pre-constitutional laws and the post-constitutional laws. It
is a tool to harmonize the central dictates of the Indian Constitution.