Fundamental Rights form the core of our democracy. They play an extremely crucial role in protecting and preserving the liberties as well as adjoining constrights of the people against the infringement of the power delegated by them to the government. Fundamental rights act as a cornerstone for overall development of not only the people but also the country as a whole. The Constitution of India embodies certain Fundamental Rights to citizens as well as non- citizens in some Articles. Part III of the constitution comprises of all such Fundamental Rights that are guaranteed to the people. In past, there have been quite a few debates regarding the Fundamental Rights and the Parliament’s power to amend such rights. In fact, there was a brief period in Post-Independence Indian History that witnessed a tussle between the Indian Judiciary as well as Indian Parliament on similar grounds. There are quite a few doctrines that revolve around legal concepts and the Doctrine of Eclipse is one of them. In order to understand the doctrine of Eclipse, we must first take a look at what is meant by a doctrine in law and Article 13 of the Indian Constitution.
Meaning of Legal Doctrine
Usually, a doctrine is referred to as a rule that is widely applicable and followed in the legal field. Legal doctrines lay the foundation of the study of law as they are extremely significant as they provide a comprehensive way of resolving specific types of legal disputes. Further, the fact that they can be adhered to in certain specific cases contributes to their significance and speaks to their long history with respect to judicial decisions.
Article 13 of the Indian Constitution
In order to understand the Doctrine of Eclipse, it necessary to study Article 13 of the Constitution of India. Although, the doctrine is only concerned with Clause one, we may look at the entire Article to have a brief understanding of the topic. Article 13 elucidates upon the laws in derogation or inconsistent with Fundamental Rights. Clause 1 of the aforementioned Article states that the laws that were in force in India right before the commencement of the Indian Constitution and are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void.
Clause 2 of the aforementioned Article states that the State must refrain from making any laws that may take away or abridge the rights conferred by Part III of the Indian Constitution and any law made in contravention of this clause shall, to the extent of the contravention, be void. Furthermore, clause 3 defines ‘law’ and ‘law in force’ as used in Article 13. Clause 4 states that nothing stated in Article 13 would apply to any amendment of the Indian Constitution made under article 368.
Doctrine Of Eclipse Meaning
When a law is inconsistent with any Fundamental Right, it does not become void ab initio. Instead, the Fundamental Right overshadows such inconsistent law and it remains dead only so far as it continues to remain inconsistent with that particular fundamental right. Once the inconsistent part of that law is amended or is removed, the law becomes enforceable. Hence, the law is not rendered dead, it is rather unenforceable only till the part that is abrogating Fundamental Rights is not removed. Once it is removed it can becomes operative.
It is pertinent to note that the Doctrine of Eclipse is restricted to pre-constitutional laws. Furthermore, such laws remain applicable to non citizens where they do not enjoy that particular Fundamental Right.
Salient Features of Doctrine of Eclipse
Only Applicable to pre-constitutional law
The doctrine of eclipse can be applied where the case is concerning a pre-constitutional law/s. If such a law is infringing the aggrieved party’s Fundamental Right, then the party can rightly invoke this doctrine. But if there is an amendment in the Fundamental right itself, then the law in question may continue to be applicable or enforceable. This being said, the doctrine is not available for Post Constitutional Laws. This is because a post-constitutional law that is infringing Fundamental Rights would be deemed to have been void ab initio.
Applicability to Non-Citizens
It can be said that the doctrine would not be available to non-citizens in cases where they do not possess the Fundamental Right in question.
Violation of Fundamental Rights
The doctrine of eclipse can only be invoked in case of violation of Fundamental Rights and not any other rights. Hence, only when the pre-constitutional law is violating Fundamental rights, the doctrine of eclipse would be invoked.
Pre Constitutional Law becomes dormant, not dead
It is noteworthy that the pre-constitutional law only becomes dormant or inoperative. It does not cease to become void or is scrapped out completely. In fact, once the infirmity in such a law is removed by way of amendment, the law continues to be enforceable.
Case Laws On Doctrine of Eclipse
Bhikhaji v. State of Madhya Pradesh[i].
An extremely important case with regards to the Doctrine of Eclipse is Bhikhaji v. State of Madhya Pradesh. In the aforesaid case, the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorised the State Government to take up the entire motor transport business in the province to the exclusion of motor transport operators.
When enacted it was valid, but it was void on the commencement of the Indian Constitution in 1950. This is because it was in contravention with Article 19(1)(g) of the Indian Constitution. However, Clause (6) of the aforementioned Article was amended by the Constitution (First Amendment Act), 1951 to authorise the Government to monopolise any business.
In the Apex Court’s view the effect of the amendment was to get rid of the shadow and to make the impugned Act devoid of the blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. Therefore, it can be seen that the law was eclipsed until it was removed by way of amendment. Once the eclipse is removed, the law begins to operate from the date of such removal.
Keshav Madhav Menon v. State of Bombay[ii]
In this case, the Appellant was being prosecuted under the provisions of, the Indian Press (Emergency Powers) Act, 1931 for publishing a pamphlet titled ‘Railway Mazdooran ke Khilaf Nai Zazish’ with no permission. During pendency of the case the Indian Constitution came into force. Hence, the questions regarding the prospective and retrospective nature of Article 13(1) and the word void were raised. The main issue was whether the impugned Act was violative of Article 19(1) (a) and if that was the case then should it be declared void. The Court was of the opinion that the Act was void only to the extent of the violation and the word “void” used in Article 13 does not mean that statutes or provisions shall be repealed altogether.
Behram Khurshid Pesikaka v. State of Bombay[iii]
In the aforementioned case, the appealant was charged for driving under influence and was charged under section 66 (b) of the Bombay Prohibition Act, 1949. The appellant contended that in the State of Bombay v. F.N. Balsara[iv] the Court declared a particular Section void i.e., Section 13 (b) of the Bombay Prohibition Act, 1949. That section was found violative of Article 19 (1) (f) and was subsequently declared void. However, the Court while holding Section 66 (b) of the Act inoperative held that just a part of the Act was void and not the entire Act altogether.
Difference Between Doctrine Of Eclipse And Doctrine Of Severability
According to the doctrine of severability, when a provision contravenes with the Fundamental Rights, then only that part which is infringing those rights would be declared void, thus separating such an inconsistent part of law from the consistent parts of that same law. There would be no need to declare the entire law void, only the violative part of such law shall be void. This ensures that the non-violative parts of the said law remain enforceable.
The Doctrine of Eclipse ensures that the pre-constitutional law that is infringing Fundamental rights becomes overshadowed by the Fundamental Rights for as long as it continues to infringe such rights. This doctrine does not make the law dead altogether, it only casts a shadow on it which can be removed by way of amendment. An important point of difference between the two is that the Doctrine of Eclipse does not make the law completely dead, on the other hand, the doctrine of Severability makes the violative part of the law void.
Would Doctrine of Eclipse be applicable to Post Constitutional Law?
The Doctrine of Eclipse is not applicable to Post Constitutional law and the same has been reiterated by the court in case of Deep Chand v. State of Uttar Pradesh[v]. In this case the Supreme Court opined that post-constitutional law which contravenes a fundamental right is void ab initio. Hence, the doctrine of eclipse would not be applicable to post-constitutional law and any further Constitutional Amendment would not bring it back to life. Therefore, it can be rightly said that the Doctrine of eclipse would not be applicable to post constitutional law and would only restrict to pre-constitutional law.
Is Doctrine of Eclipse Applicable to Non-Citizens?
It has been established that the doctrine of eclipse holds no strength for non-citizens. The court had made a similar observation in case of State of Gujrat & Anr v. Ambica Mills Ltd[vi]. In this case, it was held that a non-citizen could not claim the law to be void as against them by application of Art 13 (2). To justify this, the Court’s reasoning was that if a law takes away or abridges the fundamental rights of citizens under Art 19 (1) (f), it would be null and void as against citizens who have Fundamental Right, nonetheless, it will be operative with respect to non-citizens as the law can be said to be void only to the extent of the contravention of the Fundamental Rights of the citizens. Hence, when a post constitutional law violates the Fundamental rights guaranteed solely to the citizens, it may be applicable to non-citizens as they do not enjoy the Fundamental Right in question.
Doctrine of Eclipse And Article 368
The landmark case of I. C. Golaknath v. State of Punjab, where the petitioner contended that his rights laid down in Article 19(f) [which is now repealed], Article 19(g) and Article 14 were being violated. This case also sparked a debate on Article 368. In the judgement, the court curtailing the power of the Parliament held that Fundamental Rights cannot be amended. Hence, in a way Article 368 got eclipsed. But this judgment was overturned in the landmark judgement of Kesavananda Bharti v. Union of India[vii]. In this judgement, it was decided that the Parliament could amend fundamental rights as given in Part III of the Indian Constitution but can only do so without altering the basic structure of the Constitution. Hence removing the earlier eclipse that was shadowed over Article 368.
Eclipse cast on Section 309 of the Indian Penal Code?
In the case of P. Rathinam v. Union of India[viii], Section 309 of IPC was being challenged. It criminalized the attempt to commit suicide and therefore, bringing about the debate of Right to Die. In this case, the Court observed that since Article 21 provides for the Right to Life of an individual, it must also let there exist the right to not want to live. Therefore, the court deemed Section 309 of the IPC to be unconstitutional, and therefore it was eclipsed.
However, in the case of Gian Kaur v. State of Punjab[ix], the judgment in P. Rathinam’s case was reversed the validity of Section 309 was restored. Hence, the character of eclipse shadowed on Section 309 was removed.
Recap of Doctrine of Eclipse
This doctrine is applicable to pre-constitutional laws and may not be said to be applicable to post-constitutional laws. This is because it is believed that are invalid ab initio if they are not in accordance with Fundamental Rights as they violate it. Nonetheless, non-citizens do not enjoy this privilege as they are not entitled to every single Fundamental Right, a few being an exception. Once the law is revived by removing the infirmity that was violating the Fundamental Right, it may be in operation again. The most important point that is not to be ignored is that the law only becomes dormant or unenforceable, it is not scrapped out completely and as stated before, it becomes functional as soon as it stops violating a particular Fundamental Right. This can be done by way of Amendment.
Article 13 of the Indian Constitution plays a pivotal role in protecting Fundamental Rights. Subsequently, the Doctrine of Eclipse adds to this crucial role by playing a significant role in protecting Fundamental Rights that may be violated by any pre-constitutional law. This doctrine helps keep a check on those pre-constitutional laws that violate the fundamental rights of an individual.
[i] Bhikhaji v. State of M.P., AIR 1955 S.C. 781
[ii] Keshav Madhav Menon v. State of Bombay, 1951 AIR 128
[iii] Behram Khurshed Pesikaka v. State of Bombay, AIR 1955 SC 123
[iv] State of Bombay v. F.N. Balsara, AIR 1951 SC 318
[v] Deep Chand v. State of Uttar Pradesh, 1959 AIR 648
[vi] State of Gujrat & Anr v. Ambica Mills Ltd, 1974 SCR (3) 760
[vii] Kesavananda Bharti v. State of Kerela, 1973) 4 SCC 225
[viii] P. Rathinam v. Union of India 1994 AIR 1844
[ix] Gian Kaur v. State of Punjab, 1996 AIR SC 946