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Updated: Mar 14, 2021


The Constitution of India provides with the fundamental rights to people from Article 12 to 35. Article 13 of the Indian Constitution provides the laws which are inconsistent with or are in delegation of the fundamental rights. Article 13(1) provides all laws in force in the territory of India immediately before the commencement of this Constitution, if found inconsistent with the provisions of this Part should be held as void to the extent of such inconsistency. Similarly, Article 13(2) of the Indian Constitution provides that the state should not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause should to the extent of the contravention be held void.


Doctrine of Eclipse in literal sense means the laws which are over-shadowed by the fundamental rights and remains dormant, but is not dead. In other words, this doctrine is based on the principle that describes a law which violates the fundamental rights, neither nullity nor void ab initio but becomes only unenforceable, i.e. it remains in a moribund condition. Hence, these laws are not completely wiped out from the statute book. This doctrine exists for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. The Principle of Eclipse applies only against the citizens that they remain in a dormant condition but they remain in operation as against non-citizens who are not entitled to fundamental rights. Thus, the conflict can only be removed by constitutional amendment to the relevant fundamental right so that eclipse disappears and the entire law becomes valid.


The Doctrine of Eclipse was originated from the case of Bhikhaji v State of Madhya Pradesh[1] where for the first time the Supreme Court applied this doctrine and held that the law eclipsed for the time being by the fundamental rights was enforceable against citizens as well as non-citizens till the constitutional barrier was removed. And as soon as the eclipse is removed, these laws will begin to operate from the date of such removal.


In the case of Deep Chand v State of Uttar Pradesh[2], the Supreme Court held that a post constitutional law made under Article 13(2) which contravenes a fundamental right is nulling from its inception and is a still born law. The law becomes void ab initio. Thus, the Doctrine of Eclipse does not apply to post-constitutional laws and therefore, a subsequent constitutional amendment cannot revive it. After 15 years, this judgment was overruled by the case of State of Gujarat v Shri Ambica Mills Ltd[3]. In this case, the apex court held that just a pre-constitution law abridging fundamental rights remained after the constitution came into force as respect ‘non citizens’ as it was not inconsistent with their fundamental rights, so also a post constitution law which is inconsistent with fundamental rights is not nullity or non-existent in all cases and for all purposes. A post-constitution law which takes away rights conferred by Article 19 will be operative as regards to non-citizens because fundamental rights are not available to them. Thus, in this case a company was a non-citizen for the purpose of Article 19. The court also observed that the meaning of the word ‘void’ is same in both Article 13(1) and (2) and for that reason a post-constitutional law which abridges rights conferred on citizens under Article 19 when Article 13(2) used the expression ‘void’, then it only meant void as against persons fundamental rights are taken away by law. Thus, after the judgment of Ambica Mills’s case, the Doctrine of Eclipse was made applicable to both Pre and Post Constitutional laws.


In the case of Golak Nath v State of Punjab[4], the Supreme Court reversed its earlier decision which upheld Parliament’s power to amend all parts of the Constitution including the Fundamental Rights. In this case, the apex court eclipsed Article 368 and left Parliament with no power to change Fundamental Rights and proposed that the amendment needs to be constitutional. Whereas, in the landmark case of Kesavanand Bharati v State of Kerala[5], THE Supreme Court removed eclipse from Article 368 and held that the Parliament is not supreme under the Indian Constitution but can amend it including fundamental rights without changing the basic structure of the Constitution.


In the case of P. Rathinam v Union of India[6], the Supreme Court held Section 309 of Indian Penal Code to be unconstitutional and declared that this section is no more part of IPC but in the case of Gian Kaur v State of Punjab[7], the apex court overruled P. Rathinam judgment and removed the eclipse from section 309 uphelding the constitutional validity of Sections 306 and 309 of IPC.


Thus, the Doctrine of Eclipse provides for the validity of pre and post constitutional laws which violates the fundamental rights upon the premise that such laws are not null and void ab initio but becomes unenforceable only to the extent of such inconsistency with the fundamental rights. And the amendment to the Constitution wipes out the inconsistency of the existing law with the fundamental rights; then the eclipse vanishes and the particular law becomes active again.


References [1] AIR 1955 SC 781 [2] AIR 1959 SC 648 [3] AIR 1974 SC 1300 [4] 1967 AIR 1643 [5] (1973) 4 SCC 225 [6] 1994 AIR SC 1844 [7] 1966 AIR SC 946


Author - Tanya Sharma

Student at University of Petroleum and Energy Studies, Dehradun.

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