The doctrine of eclipse means that any laws that were enacted before the
making of the constitution ie. pre constitution laws but does not align with
laws provided in the constitution after the constitution came into effect. Then
in such a scenario such laws will not be void ab inito but will remain in an
inactive state until the said right gets amended.
As a result, the Doctrine effectively seeks to overcome the following conundrum:
If a law is declared void because it violates/contravenes a fundamental right,
the right remains dormant until the said right is changed such that the law is
no longer inconsistent with it.
"This doctrine directly derives from Article 13(1) of the Constitution, which is
a part of the fundamental rights and specifies" that. "any 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."
Essential Elements Of The Doctrine Of Eclipse Are:
The law should be a 'pre constitutional law'
"It Should align with the provisions of the fundamental rights".
The said law will become operative/enforced again only if there is an amendment
to the fundamental right
Evolution And Origin
The idea of eclipse may be traced back to 1948, when a law was passed that
granted the state the authority to exclude any private motor transport
businesses. Following the implementation of the Indian Constitution on January
26, 1950, this regulation became incompatible with the fundamental right granted
by article 19(1)g, which grants citizens of India the right to engage in any
trade, occupation, or business.
Subsequently, this issue was taken up by the apex court in the case of
Bhikaji vs State Of MP
, subsequently the said act was amended by the 4th
amendment act 1955 . This was the very first case which saw the application of
the "doctrine of eclipse'' was applied and held valid as a law .
"The doctrine was implicitly adopted in the Supreme Court's verdict in the
Keshavan Case; it was further defined by Das J.'s dissenting opinion in the
, and it was later established as legislation in the Bhikhaji
Retrospectively Of Fundamental Rights
One of the primary issues discussed before the Supreme Court in the case of
Keshavan Madhava Menon vs The State Of Bombay
was the retrospective nature
of the fundamental right. one of the issues raised were:
"If fundamental rights are retrospective, then all pre-Constitutional laws
inconsistent with fundamental rights must be void ab initio".
At this point the constitutional bench held "What article 13(1)provides is that
all existing laws which clash with the exercise of the fundamental rights (which
are for the first time created by the Constitution) shall to that extent be
void. As the fundamental rights became operative only on and from the date of
the Constitution the question of the inconsistency of the existing laws with
those rights must necessarily arise on and from the date those rights came into
It must follow, therefore, that article 13(1) can have no retrospective effect
but is wholly pro-spective in its operation". In following cases, this meaning
has been upheld. The majority did not agree with the argument that the meaning
of "void" in article 13 (1) amounted to "repeal" of the Act.
Behram Khurshid Pesikaka v/s State Of Bombay
This doctrine was further evolved through various case laws one of which is
Behram Khurshid Pesikaka v. State of Bombay
in which the dissenting opinion
of Das J. has helped in interpreting this doctrine. In this case the apex court
held that an existing law that does not align with the fundamental right is not
completely dead even though it is no longer in effect as of the Constitution's
"It is a good statute if an issue arises for determination of rights and
responsibilities incurred before the commencement of the Constitution, as well
as for determination of rights of persons who have not been granted fundamental
rights by the Constitution " .
It was in this decision that Das J. dissented this opinion of the bench by
saying that "The true position is that the impugned law became, as it were,
eclipsed, for the time being, by the fundamental right. The effect of the
Constitution (First Amendment) Act, 1951 was to remove the shadow and to make
the impugned Act free from all blemish or infirmity."
Therefore Das J 's dissenting opinion meant that the such law are in force for
the non-citizens of India it was only for the citizens of India that these laws
were in a dormant stage. Subsequently this case became the foundation of this
doctrine and the dissenting opinion of justice Das J has been subject of
numerous contemplation in the judicial decisions.
Applicability Of Doctrine To Post Const Laws
The Indian Constitution does not allow the state from passing any laws that
violates the rights granted by Part III, i.e., fundamental rights of the
constitution, the application of this doctrine to post-constitutional laws is
not possible . If the state enacts legislation that is inconsistent with or
breaches Part 3 of the constitution , it will be deemed ultra vires and void to
the extent that it violates basic rights.
This was also upheld in the case of Deep Chand vs The State of UP
it was held that the two clause's of Article 13 clauses clearly differ from one
another. Pre-Constitutional laws remain in effect under clause (1) save to the
extent that they conflict with Part III's provisions, whereas clause (2)
prohibits the creation of post-Constitutional laws that do so, rendering any
such laws that have already been passed null and void to the extent they do.
However, in the case of State of Gujarat v. Shree Ambica Mills
, it was
found that, "like a pre-Constitutional law, a post-Constitutional law
contravening a basic right might also be legal in relation to people whose
rights were not affected ".
Analysis And Conclusion
"The foregoing discussion and deliberation reveal that the framers of our
constitution took great care in framing article 13 of the constitution of India
.The fundamental rights are given "teeth" by Article 13, which also gives the
courts the authority to defend them from attacks that violate the constitution.
The way the article 13 was written shows that it was meant to include both
pre-Constitutional and post-Constitutional laws in order to increase the extent
of protection for fundamental rights. "
The doctrine of eclipse is a vital part of the constitution . this doctrine is
used to protect the statues from being wiped off totally and merely renders them
dormant for the time being. In this research paper the author tried to throw
light upon the various aspect of the doctrine and traced the evolution of
doctrine through various case laws.
The paper talks about how the doctrine has evolved and has been propounded as
law in the Bhikaji case
and how it was interpreted post keshvanan case.
One of major issues this paper seeks to resolve is wether or not the fundamental
rights are retro prospective in nature. The author concludes that fundamental
rights are not retrospective in nature this was also upheld in the case of
As if the fundamental were to be retrospective in nature then all the laws
violating the fundamental rights pre const would be held void ab initio. "The
doctrine is originally applicable to pre constitutional laws but wether or not
it is applicable to post constitutional laws is still a matter of debate between
many jurists and lawmakers" .
To sum up , the doctrine of eclipse is protect any laws that violate fundamental
rights by putting them in a dormant state/ inactive state and not making them
void ab initio. This doctrine is of great significance this is the doctrine
which protects the pre constitutional laws and at the same time also help in
safeguarding the post constitution laws to a certain extent .
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