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Judiciary is recognized as the ‘Watchdog of Democracy’, and the Judicial Review is demarcated as the interposition of judicial restraint on Legislative and Executive organs of the Government. On 26th January 1950, with the adoption of the written Constitution and the incorporation of Part III which confers Fundamental Rights to its citizens, it was unavoidable that the validity of the laws made by the Legislature would be tested on the touchstone of the Constitution. Soon it was realized that it was essential for such laws to muster the judicial scrutiny and for the same reason, the Judiciary evolved doctrines such as Doctrine of Eclipse (hereinafter ‘Doctrine’).
To comprehend, it’s relevant to look into the provision of Article 13 of the Indian Constitution, which is very meticulously connected to the Doctrine. Article 13, the power of Judicial Review, falls under the purview of Fundamental Rights and is a provision to safeguard the same. It empowers fundamental rights and concerns the laws inconsistent with or in derogation of the Fundamental Rights. It deals with the extent of inconsistency in the pre-constitutional laws as well as in post-constitutional laws.
The Doctrine applies to and can be invoked only in the case of Article 13(1) dealing with pre-constitutional laws, which states, “all 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.” Does the Doctrine apply to post-constitutional laws? A question widely asked by the eminent jurists, who posit themselves on the opposing extremes of the academic spectrum and the highly conflicting jurisdictional pronouncements add to the confusion.
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.
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.
The significant features and characteristics of the Doctrine are as follows:
- 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.
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.
- 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, 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.
Author: Preethi Sivaraman from Symbiosis Law School, Hyderabad.
Editor: Yashika Gupta from Rajiv Gandhi National University of Law, Patiala.