Introduction

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.

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.

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.

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.

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.

Conclusion

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.