This article is written by D.Srujana Naik, VII Sem-BBA LL.B,Mahatma Gandhi Law College during her internship at LeDroit India.
Keywords:
- Fundamental rights
- Pre-constitutional laws
- Inconsistent
- Impugned law
- Inoperative
- Void
Abstract:
Doctrine of Eclipse says that pre-constitutional laws which are inconsistent with fundamental rights, shall cease to operate. They shall not cease to exist but only becomes inoperative. Such impugned laws remains hidden behind the fundamental rights and such laws are valid again when such provisions are amended and found consistent in nature with fundamental rights they become operative. The impugned law must violate the fundamental rights only then it can be hidden or eclipsed.
Validation of pre-constitutional laws
The doctrine of eclipse has evolved from Article 13(1) of the Indian constitution. Article 13 clause 1 states that All laws in force in the territory of India immediately before the commencement of this constitution is so far as they inconsistent with the provisions of this part,shall, to the extent of such inconsistency, be void. Which means laws which were framed before the commencement of the constitution, if found inconsistent in nature relating to fundamental rights. If any legislation found violating the provisions mentioned under part III of Indian constitution such legislations becomes dormant. Such legislations are only shadowed by fundamental rights and ceases to operate but doesn’t become void. When further amendments are made, impugned laws found consistent to fundamental rights puts the eclipse to an end. Laws which encroaches fundamental rights should be inoperative only up to the extent to inconsistency it doesn’t make the whole legislation void, only the part of inconsistent legislation which are contrary to fundamental rights will be void.
Salient features of Doctrine of Eclipse
Applicable only to the pre-constitutional laws
Shadowed laws must be inconsistent with fundamental rights
laws just remain inoperative but exists
future amendments can make the law operative again
After commencement of the Indian constitution several laws were challenged for being in contravention with fundamental rights and were challenged before the court of law. Many judicial decisions have played a vital role in establishing Doctrine of Eclipse. Supreme court pronounced this legal doctrine as formal while observing a landmark case Bhikaji vs state of Madhya Pradesh (AIR 1955) the Madhya Pradesh state legislature passed an act in January,1950 before the commencement of constitution nationalizing the motor transport. The following legislation was challenged under Article 19(1)(g). 4th constitutional amendment act was passed by the constitution in the year 1955 which enabled state to nationalize the motor transport. Doctrine of Eclipse has been applied and M.P act was held valid. Doctrine of eclipse has been evolved due to the contrary pre-constitutional laws to the part III of Indian constitution. Here the term ‘Eclipse’ means to be hidden under the Fundamental rights and remains inoperative but exists unless it is abolished by the Parliament. Laws which are in accordance to the constitution only those laws are valid. To what extent such inconsistent laws would be void shall be defined by the application of these doctrines. However, there was a dispute regarding the applicability of this doctrine, questioning its applicability to both pre-constitution and post-constitution laws, or only to the pre-constitutional laws. Few judgements were in favor of both laws and some were in favor of pre-constitutional laws only. In Keshav Madhav Menon vs state of Bombay the petitioner was prosecuted under the provisions of the 1931 Act the Indian Press (emergency powers) Act for violation of a pamphlet publication. After the commencement of the constitution this was challenged using Article 13(1). Court was questioned whether the following act was violating the provisions mentioned under Article 19(1) (a) and if it does so whether it should be declared void. Court stated that Act is void only to the extent of the violation and the word void in Article 13(1) doesn’t mean that statutes or provisions shall be repealed or ceases to exist.
POST-CONSTITUTIONAL LAWS
There is a clear difference between Article 13(clause1) and Article 13 (clause 2) Article 13(1) deals with pre-constitutional laws where Article 13(2) deals with the post-constitutional laws. Article 13 (2) of Indian Constitution states that The state shall not make any law, which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. If any post-constitutional laws found contrary to the constitution such laws are void from their very inception. Doctrine of eclipse is not applicable to post constitutional laws. In Deep chand vs State of Uttar Pradesh Supreme court held that statute made by the state of U.P could not be cured and is void by the Doctrine of eclipse as it was a post- constitutional law. In State of Gujarat vs Ambika Mills It is clear that after commencement of constitution state doesn’t possess any power to pass any legislation which is against fundamental rights. Problem in this case was that, Fundamental rights are applicable to the citizens, what will be the validity of law pertaining to non-citizens or companies. In this case, Respondent was a company to whom fundamental rights are not applicable. Supreme court stated that as fundamental rights are not granted to the companies, sections which are violative in nature with respect to fundamental rights can still be operative for non-citizens. It is only void to the citizens.
CONCLUSION
Doctrine of eclipse checks the validity of pre-constitution laws which are inconsistent to the fundamental rights and such provisions are eclipsed by the fundamental rights by making such impugned laws inoperative. Inconsistent laws can be made consistent by amending them and these legislations can be enforced and are valid from there on. All the post-constitutional and pre-constitutional laws must be in accordance with the constitution laws shouldn’t violate the provisions mentioned in the constitution. Only then such laws become valid. Impugned laws are only eclipsed by the shadow of being unconstitutional. When the defects are amended eclipse comes to an end and the statutes become operative..
REFERENCES:
case laws:
- Bhikaji vs State of M.P – executive programme study material The Institute of Company Secretaries of India book.
- Keshav Madhav Menon vs State of Bombay- https://byjus.com/free-ias-prep/doctrine-of-eclipse/
- Deep Chand vs State of Uttar Pradesh- https://indiankanoon.org/doc/570453/
- State of Gujarat vs Ambika Mills- https://indiankanoon.org/doc/681436/
