DOCTRINE OF ECLIPSE
The doctrine of eclipse could be closely related to article 13 of the constitutional law which vests the immunity of judicial review in the Indian Judiciary. With the enforcement of the constitutuion on 26th January 1950, the six fundamental rights also came into force. Since, the law making power was vested in legislature, it was also important to scrutinize the constitutionality of the laws enforced so that they may not be in the violation of the Indian Consitution. But, there were laws which were made before independence or before the commencement of constitutional era. These laws were either partially, largely or in sheer inconsistency with Part III of the constitution which vested fundamental rights to its citizens. These rights are prospective in the sense that the matter which has been decided before the commencement can’t be challenged under the violation of FRs but those pending or registered post constitutional era could be sought in the court under article 32. So, the doctrine of eclipse applies herein, for the protection of the fundamental rights of the people hindering in the post constitutional era due the pre constitutional law. This is what doctrine of eclipse deal with by giving a special judidcial power to judges in order to invalidate such laws, only to be annulled by the legislature further.
It was the time when India was adapting herself with the Constitution of India. There were many cases that deal with the interpretation of the constitutional provisions by challenging the statutes created by the Indian Parliament and various state Legislatures. But the most important confusion that existed is the continuance of pre-existing laws. Most of the laws were created by the Alien government with the aim of repressing the Indians and have effective control over Indians. With the advent of the constitution, the Indian citizens were guaranteed with the fundamental rights. The language of the constitution and judicial review is constructed in such a way that no existing law will be struck down as a whole but only to the extent of its inconsistency. The question arose whether the fundamental rights and freedom guaranteed to each citizen has retrospective effect or prospective effect and this issue was dealt effectively in the present case which is critically analysed.
The project in its initial chapterization, will disclose about the development in concept of eclipse through relevant case laws, features of the doctrine, applicability, effect in the post constitutional law, usage in article 368 and 309 will also be discussed.
ARTICLE 13 OF INDIAN CONSTITUTION
13. Laws inconsistent with or in derogation of the fundamental rights
(1) 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, shall, to the extent of such inconsistency, be void
(2) 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
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality
Meaning and scope through this article (article 13)
The parliament and state legislatures are being terminated from making such laws that may infringe or take away the fundamental rights that are being guaranteed by the Indian constitution itself. The pre- constitutional laws may not be able to meet the changing and developing needs of today's world, therefore article 13 do gives the power to the supreme court and high court of India to re-write the pre constitutional laws, so as to make the laws meet the changing conditions of today's lifestyle of people. Similarly, the laws made after adopting the constitution must prove their similarity with the pre-constitutional laws, then only they would be considered as valid otherwise they would be assumed to be void. Part III of the constitution do exist with this objective that the rights and freedom of people do gets the protection from the arbitary invasions of the state.
Article13 of the constitution do talks about the four principles relating to fundamental rights. Fundamental rights do exist from the date on which the Indian constitution came into force i.e on 26th January 1950 hence fundamental rights became operative from this date only. article 13(1) talks about the pre-constitutional laws i.e the day from which the constitution came in existence there were many laws in the country and when the constitution came into existence fundamental rights do came, therefore the laws before the existence of the constitution must prove their compatibility with the fundamental rights, only then these laws would be considered to be valid otherwise they would be declared to be void. For example article 15 of the constitution do gives the right to education to all without any discrimination on the basis of caste, sex, religion, etc, but an Education act which came in existence in 1930 says that a particular group of kids would not be provided education on the basis of their caste'. As this particular clause of the act is inconsistent with that of the fundamental rights therefore it is declared to be null and void. Moreover article 13(1) is prospective in nature but not retrospective i.e the article will be in eect from the day when constitution came in eect ..(26th jan.,1950) and the person who committed once afterwards will be prosecuted according to the laws of Indian constitution but not according to the pre-constitutional laws.
"Judicial Review" is defined as the interposition of judicial restraint on the legislative and executive organs of the Government. It is the "overseeing by the judiciary of the exercise of powers by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution." The concept has its origins in the theory of limited Government and the theory of two laws - the ordinary and the Supreme (i.e., the Constitution) - which entails that any act of the ordinary law-making bodies that contravenes the provisions of the Supreme Law must be void, and there must be some organ possessing the power or authority to pronounce such legislative acts void.
With the adoption of a written Constitution and the incorporation of Part III conferring Fundamental Rights therein, it was inevitable that the validity of all laws in India would be tested on the touchstone of the Constitution. Nevertheless, the Constitution-makers included an explicit guarantee of the justiciability of fundamental rights in Article 13, which has been invoked on numerous occasions for declaring laws contravening them void. Courts have evolved various doctrines like the doctrines of severability, prospective overruling, and acquiescence, for the purposes of effectuating this Article. The Doctrine of Eclipse ("the Doctrine") is one such principle, based on the premise that fundamental rights are prospective in nature. As a result of its operation, "an existing law inconsistent with a fundamental right, though it becomes inoperative from the date of commencement of the Constitution, is not dead altogether." Hence, in essence, the Doctrine seeks to address the following quandary: If a law is declared null and void for infringing on a fundamental right, and then that fundamental right is itself amended such that the law is purged of any inconsistency with it, does the law necessarily have to be re-enacted afresh, or can it revive automatically from the date of the amendment? In other words, what is the precise nature of the operation of the Doctrine in the face of the general rule that a Statute void for unconstitutionality is non-est and "notionally obliterated" from the Statute Book? Inherent in the application of the Doctrine to such questions is the predicament of conflicting priorities. What is to be determined here is whether, for the purpose of avoiding the administrative difficulties and expenditure involved in re-enacting a law, a law which was held void on the very sensitive and potent ground of violation of fundamental rights should, under special circumstances be permitted to revive automatically. This also raises some profound questions about legislative competence and the interference of courts in law making.
These are the issues that this paper seeks to address. In doing so, the first part of this paper definitively traces the origin and fruition of the Doctrine through judicial pronouncements, by exploring its fundamental premises. The second part delves into the litigious issue of extending its applicability to post-Constitutional laws.
KESHAVAN CASE AND VALIDITY OF LAWS
The origin of this doctrine can be traced back to the pronouncement of the Supreme Court in Keshavan Madhava Menon v. State of Bombay, where the Court dealt with the questions regarding the retrospectivity of fundamental rights and the interpretation of the word "void" in Article 13(1) of the Constitution. However, there was no express wording by the Court on Doctrine of Eclipse but the opinion of the Court laid down the founding stone for the doctrine.
Article 13(1) provides that all pre-Constitutional laws, in so far as they are inconsistent with fundamental rights, are void. If fundamental rights are retrospective, then all pre-Constitutional laws inconsistent with fundamental rights must be void ab initio. On this point, both Das and Mahajan, JJ., maintained that fundamental rights, including the freedom of speech and expression, were granted for the first time by the Constitution and that in September 1949, when proceedings were initiated, the appellant did not enjoy these rights.19 Hence, it was established that, as fundamental rights became operative only on, and from the date of the Constitution coming into force, the question of inconsistency of the existing laws with those rights must necessarily arise only on and from such date. On the construction of article 13 (1), Court said that the language of article is clear and thus it is prospective in operation. This interpretation has been upheld in subsequent cases. The majority rejected the view that the meaning of “void” in article 13 (1) amounts to “repeal” of the statute. According to Das J.:
Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liaIt is generally agreed, however, that the actual genesis of this doctrine occurred in Bhikaji Narain Dhakras v. State of Madhya Pradesh. In this case, the C. P. and Berar Motor Vehicles Amendment Act of 1947 was challenged for being violative of Article 19(1) (g). This amendment act was a preconstitutional law. Thus, the Doctrine of Eclipse was applied and the Act’s provisions were made inoperative and accrued before the date of the Constitution. However, in the year 1951, by virtue of the 1st Constitutional Amendment Act, Article 19(1) (g) was amended and the eclipse was removed, rendering this law enforceable against citizens and non-citizens. According to the Court, “the effect of the amendment was to remove the shadow and to make the impugned Act free from all blemish or infirmity”.
FACTS OF THE CASE
In Keshvan v. State of Bombay21 the doctrine of eclipse has been first adopted by the Apex Court by following the precepts from the foreign decisions. This question was considered by the Bench comprising seven Judges. In this case, the majority view was that Article 13(1) has got no applicability but the minority view was delivered by Justice Fazl Ali holding that Article 13(1) is applicable and the doctrine of eclipse is applicable in facts and circumstances of the case.The facts of the case is that on 09.12.1949 the petitioner was arrested and a prosecution was started against him under Section 18(1) of the Press (Emergency Powers) Act, 1931, in the court of the Chief Presidency Magistrate at Bombay for publishing a pamphlet in Urdu entitled “Railway Mazdooram Ke Khilaf Nai Sazaiah”. The prosecution case was that the pamphlet was a news-sheet under Section 2(6) of the Act and since it has been published without the authority required by Section 15(1) of the Act, the petitioner has committed an offence punishable under Section 18(1) of the Act. While the prosecution was pending the Constitution of India came into force on 26.1.1950 and, thereafter, the petitioner raised the contention that Sections 2(6), 15 & 18 of the Act were void being inconsistent with Article 19(l)(a) of the Constitution and, therefore, case against him could not proceed. The petitioner filed an application under Article 228 of the Constitution before the High Court raising the aforesaid grievances. The Full Bench of the High Court taking resort of Article 367 of the Constitution held that the pending proceedings were not affected and, as such, the same was dismissed. Against that order, the petitioner moved before the Supreme Court.
It was held by the majority view of the Bench that before the Constitution came into force, there was no such thing as fundamental rights. As the fundamental rights became operative only and from the date of the commencement of the Constitution, the question of the inconsistency of existing laws witli those rights must necessarily arise on and from the date when those rights came into being. Article 13(1) has got only prospective operation. According to them the inconsistent law is not wiped out so far as the past act is concerned. Hence, the proceeding under Section 18(1) at the date of the commencement of the Constitution is not affected. On the other hand, the minority view was taken by Justice Fazl Ali after referring to several foreign decisions and precepts to the doctrine of eclipse. According to Justice Fazl Ali, Article 13(1) will have no retrospective operation and transactions which are past and closed and rights which have already vested will remain untouched. But, with regard to inchoate matters which were still not determined when the Constitution came into force and, as regards, proceedings whether not yet begun or pending at the time of the enforcement of the Constitution and not yet prosecuted to final judgement, a law which has been declared by the Constitution to be completely ineffectual can no longer be applied.22Justice Fazl Ali applied the foreign principle23 regarding the effect upon pending proceedings when an Act was repealed or when a temporary Act expired. In Craies on Statute Law, the effect of the expiry of a temporary Act is stated that it is a general rule and unless it contains some special provision to the contrary, after a temporary Act has expired, no proceeding can be taken upon it, and it ceases to have any further effect even if the proceeding is pending, it will ipso facto terminate. This statement of law by Craies was referred to with approval and adopted by the Federal Court24 In the instant case25 Justice Fazl Ali also applied the decision given in Surtees v. Ellision26 where it was held that when an Act of Parliament is repealed, it must be considered except as to transaction past and closed as if it had never existed. Justice Fazl Ali in the instant Keshavan's case at the same para adopted the decision given by Tindal C.J. in Kay v. Goodwin27 in which it was held : “The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.”Justice Fazl Ali also visualised the American view in this case.28 Crawford in his book on “Statutory Construction” dealing with the general effect of the repeal of an Act states that the law in America is that a repeal will generally divest all inchoate rights which have arisen under the repealed statute and destroy all accrued causes of action based thereon. As a result, such a repeal without a saving clause will destroy any proceeding, whether not yet begun or whether pending at the time of the enactment of the repealing Act and not already prosecuted to a final judgement. so as to create a vested right In Cleveland R. Co. v. Numfordflnd)29 the repeal of a Statute during the trial prevented a judgement from being rendered. Similarly, there can be no legal conviction for an offence unless the Act be contrary to law at the time it is committed nor can there be a judgement unless the law is in force at the time of the indictment and judgement If the law ceases to operate by its own limitation or by a repeal at any time before judgement, no judgement can be given.
Further. The case analysed various problems related to the retrospective and prospective aspects of the institution of fundamental rights;-------
The Retrospectivity of Fundamental Rights
It is now well settled that the Constitution has no retrospective effect. However, one of the basic questions related to the origin of the Doctrine of Eclipse that was raised in Keshavan, was whether fundamental rights are retrospective in operation. Article 13(1) provides that all pre-Constitutional laws, in so far as they are inconsistent with fundamental rights, are void. If fundamental rights are retrospective, then all pre-Constitutional laws inconsistent with fundamental rights must be void ab initio. On this point, in Keshavan, both Das and Mahajan, JJ., maintained that fundamental rights, including the freedom of speech and expression, were granted for the first time by the Constitution and that in September 1949, when proceedings were initiated, the appellant did not enjoy these rights. Hence, it was established that, as fundamental rights became operative only on, and from the date of the Constitution coming into force, the question of inconsistency of the existing laws with those rights must necessarily arise only on and from such date
The Prospective Nature of Article 13(1)
Turning specifically to Article 13(1), the Court further held that every statute is prima facie prospective unless it is expressly or by necessary implication made retrospective. According to him, there was nothing in the language of Article 13(1), to suggest that there was an intention to give it retrospective operation. In fact, the Court was of the opinion that the language clearly points the other way. It was therefore held that Article 13(1) can have no retrospective effect, but is wholly prospective in operation." This interpretation has been upheld in subsequent cases.
MEANING AND IMPLICATION OF VOID IN ARTICLE 13(1)
In the Supreme Court, the majority, while maintaining that the proceedings under the impugned law could not be quashed, rejected the High Court's view that the meaning of the word "void" in Article 13(1) amounts to "repeal" of the statute. It was held that the effect of Article 13 is quite different from the effect of the expiry of a temporary statute or its repeal by a subsequent statute. Article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal binding force or effect, with respect to the exercise of fundamental rights, on and after the date of the Constitution's commencement. According to Das J.:
Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.'
Dissenting Opinion of Das J. in Beharam Case – Correct Ruling on Article 13 (1)
Before moving ahead, it is quite important to consider the opinion clash between Mahajan C.J. and Das J. in Behram Khurshid Pesikaka v. State of Bombay.23 Mahajan C.J. after referring to the ruling of Keshavan Case in relation to word “void” in article 13 (1), held that a Pre Constitutional law which is declared void should be notionally obliterated from the Statute book for the purposes of determining the rights and obligations of citizens. However, the same remains good law when a question arises for determination of rights and obligations incurred before 26 January, 1950.24 Das J. dissented and said that to hold that the invalid part was obliterated would be tantamount to saying covertly that the judicial declaration had to the extend amended the section.25
Authors like H.M. SEERVAI, have severely criticized the reasoning followed by Mahajan, C.J., because of his use of the term notionally obliterated. According to SEERVAI, if the view of the Court in Keshavan that the term void does not mean repealed, and that Article 13 cannot be read as obliterating the entire operation of inconsistent laws, is taken to be correct, then there is no scope for an unconstitutional provision to be notionally obliterated. Thus, the learned scholar supports the dissenting judgment of Das, J. as the correct statement of the law which is backed by the earlier decision of the Court in Keshavan Case.
DOCTRINE OF ECLIPSE AND SEVERABILITY
The concept of doctrine of eclipse developed in what is called post Keshavan period as per the legal logistics. The doctrine of eclipse as a concept developed in the Bhikhaji case which will be mentioned and discussed in the chapter itself but first the concern should be on knowing the concept of doctrine of eclipse.
Doctrine of eclipse means that "A law which is in violation of fundamental rights of human will be dormant until necessary amendment is made to the law in such a way that it should not violate fundamental rights of human." On general it means that the fundamental rights of human are more important than any laws. The doctrine of eclipse is based on the principle that a law which violates Fundamental Rights is not nullity or void ab initio but becomes only unenforceable, that is remains in a moribund condition. “it is over shadowed by the fundamental rights and remains dormant, but it is not dead.” Such laws are not wiped out entirely from the statute book. They exist for all past transactions, and for the enforcement of rights acquired and liabilities incurred before the present Constitution came into force and for determination of right of persons who have not been given fundamental rights by the constitution, e.g., non-citizens. It is only as against the citizens that they remain in a dormant or moribund condition but they remain in operation as against non-citizens who are not entitled to fundamental rights. When a portion of the statute is declared unconstitutional it is not rendered void ab initio but it only becomes un enforceable that is remains in a moribund condition. In other words law is over shadowed by the fundamental rights but remains dormant and not dead. The eclipse law are not wiped out entirely from the statute. They exists for all passed transactions and for the enforcement of rights acquire and liability incurred before that constitution came into force.
When a Court strikes a part of law, it becomes unenforceable. Hence, an 'eclipse' is said to be cast on it. The law just becomes invalid but continues to exist. The eclipse is removed when another (probably a higher level court) makes the law valid again or an amendment is brought to it by way of legislation.
The Supreme Court of India, in P Ratinam case, has held Section 309 of the Indian Penal Code, 1860 unconstitutional. Hence, the section was under eclipse. However, a constitutional bench in Gian Kaur case reversed this decision and held the section as constitutional whereby the eclipse was removed and it because operable again.
Some laws are held unconstitutional by the courts. Now in this scenario, the legal position that remains is that though the law exists in statute books, because of a court decision they are inoperable. Therefore in law there is an eclipse cast upon their implementation. Doctrine of eclipse deals with pre-constitutional laws in Art 13(1). Article 13 provides that any law which was made before the commencement of constitution must be consistent with the part III of the constitution (Fundamental Rights). If any statue is inconsistent with the provisions of part III of the constitution such statue shall become void. At the same time such statue shall not be treated as Dead unless it is abolished by the Parliament. It will be treated as dormant or remains eclipsed to the extent it comes under the shadow of the fundamental rights. An extremely vital aspect of the Doctrine — which, in India, has thus far been largely overlooked by legal theorists and practitioners alike — is its crucial role in the federal framework. A survey of the principal federations in the Anglo-American world shows that the Doctrine has been used primarily in cases where the enacting legislature undoubtedly had the power to enact a law, but the law was rendered inoperative because of supervening impossibilities, arising in the form of other incompatible laws enacted by legislatures having superior powers to enact such laws. A complete demarcation of powers between the federal and state spheres is neither feasible nor desirable in a federal polity. Necessarily, therefore, there must be provision for a sphere wherein concurrent powers are exercised by the federal and the state legislatures. It is in this area, that occasions for the use of the Doctrine have arisen. Since, both legislatures undoubtedly have the competence to enact laws, in case both of them choose to exercise their powers, intriguing constitutional questions arise as to the status of the lesser State law. Is it rendered null and void, or does the possibility of its prospective revival subsist? Here, the Doctrine serves as a convenient mechanism for resolving potential Centre-State disputes, in the event of repugnancy between Central and State Acts.
There is yet another concept which needs to be discussed before discussing the relevant case laws post Keshavan to understand the case better and that is doctrine of severability.
FEATURES OF DOCTRINE OF ECLIPSE
This doctrine emanates directly from Article 13(1) of the Constitution that is a part of the fundamental rights, 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.”
• The doctrine of eclipse envisages fundamental rights as prospective in nature.
• It states that a pre-constitutional law inconsistent with the fundamental rights is not a nullity or void ab initio but only remains unenforceable i.e., remains in a dormant state.
• They exist for all past transactions i.e., for rights and liabilities that were acquired before the Constitution came into being.
• These laws also remain applicable to individuals who have not been given fundamental rights, for example, non-citizens.
• Therefore, the impugned law remains hidden behind the fundamental rights and can become operative again if and when the fundamental right it is inconsistent with is amended.
The doctrine only applies to pre-constitutional laws that were valid at their inception.
• The doctrine is not applicable to post-constitutional laws since they are invalid from the very inception because of being inconsistent with Part III; the same was held by the Supreme Court in Deep Chand v. State of Uttar Pradesh. However, non-citizens can’t take any advantage of the rule as the violation doesn’t impact them.
• The impugned law must be violative of the fundamental rights, and then only can it be hidden or eclipsed.
• The law that turns out to be violative of Part III does not become a nullity but just remains unenforceable & defective.
• If the fundamental right that is violated by the impugned law is amended in the future, the law automatically becomes operative.
DOCTRINE OF SEVERABILITY
This doctrine of severability is also known as the doctrine of separability. The word “to the extent of the inconsistency or contravention” makes it clear that when some of the provision of a statue when some of the provisions of a statute becomes unconstitutional on account of inconsistency with fundamental rights, only to the repugnant provision of the law in question shall be treated by the courts as void, and not the whole statute. The doctrine of severability means that when some particular provision of a statute offends or is against a constitutional limitation, but that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute.
In this doctrine it is not the whole act which is held invalid for being inconsistent with the Part three of the constitution which is given to the citizens of India. It is only those parts are inconsistent which are violative of the fundamental rights. But just the part which violates the fundamental rights is separable from that which does not isolate them. If it there that the valid portion is combined with the invalid portion that it is impossible to separate them. Then in such cases the court will leave it and declare the whole Act as void. This process of doing it is known as the doctrine of severability. The doctrine of Severability through the Article 13 of the Indian Constitution opens the doors for the judicial review on any law or part of it that is found unconstitutional or violative of fundamental rights. It enables the Supreme Court and High Court to interpret laws and to review the pre-constitutional and existing laws through a contemporary approach of law. Amidst the sparking argument concerning the legitimacy of judicial intervention in constitutional matters, judicial review has been extended in many cases so as to protect the fundamental rights that guaranteed in Part III of the Indian Constitution. e parliament and state legislatures are restrained from enacting laws that may curtail the fundamental rights guaranteed for the citizens of the country. If a law is partially unconstitutional, it would be deemed inefective until an amendment is made.
Persons entitled to enforce the doctrine of Severability
A person, who does not possess any fundamental rights under the Indian Constitution, cannot challenge any law on the grounds of incompatibility with fundamental rights, when there is a constitutional violation that afects the corporation, or the shareholders are entitled to indict the validity of the unconstitutional part of a law. Here, the question of fact is that, whether the right of the corporation or the shareholders have been afected by the law. If the fundamental rights of the company have been impugned by a statute in a way that, it also afects the interest of the concerned shareholders, the shareholders can question the constitutionality of the statute.
Limitation in Enforcement of the Doctrine
The 24th amendment of the Indian Constitution by Ms Indira Gandhi during 1971 added the clause (4) of Article 13, that says, “Nothing in this article shall apply to any amendment of this Constitution made under article 368”. e very purpose of the amendment is to annul the Supreme Court that oversees the enactments of parliament from the point of view of Doctrine of Severability. Hence, the Part III of the Indian Constitution that covers fundamental rights was brought into the realm of amendment procedure and judicial intervention of those amendments was forbidden. e amendment earned sharp criticism from jurist, media fraternity and members of the Constituent Assembly. e stringent nature of the amendment paved a way for a new provision which obligated the President to give his assent for every Constitution Amendment Bill.
The Doctrine of Severability v. Doctrine of Eclipse
While making a constitutional amendment on the unconstitutional part of a statute, it is signicant to take into account both ‘doctrine of Severability’ and ‘doctrine of eclipse’. e latter can be applied in the case of pre-constitutional laws which were valid at the time of enactment. But, if there is some incompatibility in the law concerning the present constitution, it would be overshadowed by the Fundamental Right and would remain dormant, but is not dead anyway. If and when an amendment is made thereby removing the shadow, the pre-constitutional law becomes free from all kinds of susceptibility. e ‘doctrine of eclipse’ cannot be invoked in the case of a post Constitution law whereas; ‘Doctrine of Severability’ makes the law void ab initio. Owing to Article 13(2) of the Indian Constitution, limitations are laid upon the legislature to adhere to the fundamental rights of the constitution.
POST KESHAVAN JUDGEMENTS AND APPLICATION
One of the earliest cases that dealt with the nexus between Article 13(1) and validation of pre-Constitutional laws infringing on fundamental rights was BehramKhurshid Pesikaka v. State of Bombay.'
In this case, the appellant was charged under Section 66(b), Bombay Prohibition Act, 1949 for driving under the influence of alcohol. However, in an earlier case, State of Bombay v. F.N. Balsara, section 13(b), Bombay Prohibition Act, 1949, was declared to be void so far as it affected the consumption or use of medicinal and toilet preparations containing alcohol, as it was Violative of Article 19(1)(f). It was contended by the appellant in Behram, that since in Balsara the prohibition on possession and consumption of medicinal and toilet preparations containing alcohol was held to be invalid, therefore, section 66(b) was inoperative and unenforceable so far as such items were concerned. Therefore, the question to be considered in Behram, was the effect of the declaration in Balsara on theBombay Prohibition Act, 1949. At the initial stage, the Supreme Court judges unanimously agreed that a declaration by a court that part of a section was invalid, did not repeal or amend that section, or add a proviso or exception to it, since repeal or amendment was a legislative function. This compelling constitutional question was, however, referred to a larger Bench, where Mahajan, C.J., held that the part of the section of an existing law which is unconstitutional is not law, and is null and void. It is notionally obliterated from the Statute book for the purposes of determining the rights and obligations of citizens. However, the same remains good law when a question arises for determination of rights and obligations incurred before 26 January, 1950. Das, J. dissented and was of the opinion that the effect of Balsara was that the prohibition contained in the relevant part of Section 13(b) would be ineffective against, and inapplicable to, a citizen who consumes or uses medicinal and toilet preparations containing alcohol. However, he was opposed to Mahajan, C.J.'s idea that, this part ofthe section can be taken to be notionally obliterated from the Statute book. The very basis of the Balsara declaration, according to him, was that a citizen has the fundamental right to possess or consume medicinal and toilet preparations containing alcohol. Hence, the onus is on the accused to prove that the section which has been declared void should not be applicable to him. If the accused is able to prove that he is a citizen, the Balsara decision will ensure that he is not punished.
Authors like Seervai, have severely criticized the reasoning followed by Mahajan, C.J., because of his use of the term "notionally obliterated." According to Seervai, if the view of the Court in Keshavan that the term "void" does not mean "repealed", and that Article 13 cannot be read as obliterating the entire operation of inconsistent laws, is taken to be correct, then there is no scope for an unconstitutional provision to be "notionally obliterated.” Thus, according to Seervai, the dissenting judgment of Das, J. is the correct statement of the law.
THE PROPOUNDING OF THE DOCTRINE AND BHIKHAJI CASE
The prospective nature of Article 13(1), and the limited connotation accorded to the word "void" in Keshavan, which was expounded by Das, J. in Behram, necessitated the enunciation of the Doctrine of Eclipse in the leading case of BhikajiNarainDhakras v. State of Madhya Pradesh.
In this case, the impugned provision allowed for the creation of a Government monopoly in the private transport business. After the coming into force of the Constitution, this provision became void for violating Article 19(1)(g) of the Constitution. However, Article 19(6) was amended in 1951, so as to permit State monopoly in business.
It was argued on behalf of the petitioners that the impugned Act, being void under Article 13(1), was dead and could not be revived by any subsequent amendment of the Constitution, but had to be re-enacted. This contention was rejected by a unanimous decision of the Supreme Court, which laid down that after the amendment of Article 19(6) in 1951, the constitutional impediment was removed. The Act, therefore, ceased to be unconstitutional, and became revivified and enforceable.
The crux of the decision was the observation that an existing law inconsistent with a fundamental right, though inoperative from the date of commencement of the Constitution, is not dead altogether. According to some authors, it "is a good law if a question arises for determination of rights and obligations incurred before the commencement of the Constitution, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution." In this context, Das, C.J., held:
The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or infirmity.
He reiterated that such laws remained in force qua non-citizens, and it was only against the citizens that they remained in a dormant or moribund condition. This case was thus the foundation of the Doctrine, which has since been the subject of judicial contemplation in numerous decisions.
AMBIKA MILLS CASE AND INTERPRETATION OF TERM “ VOID”
The principle issue considered by the Court was whether a law violating the fundamental rights under Art. 19 (1) (f) of citizen-employees can be challenged by the respondent, i.e. a non-citizen employer, on the ground of law being void also against non-citizen employers under Art 13 (2).
The Court, speaking through K.K. Methew J., proceeded with assumption that the impugned provisions abridged the fundamental right of citizen-employers and citizen-employees under Art 19 (1) (f), to decide on the main issue. The Court held that Ambica Mills, being a non-citizen could not claim the law to be void as against them by application of Art 13 (2). The Court reasoned that if a law takes away or abridges the fundamental rights of citizens under Art 19 (1) (f), it would be non est and void as against citizens who have been conferred such right but it will be operative in regard to non-citizens as the law is void only to the extent of contravention of the rights conferred on citizens.17 Based on the aforesaid contentions, the Court came to the conclusion that the impugned provisions were not non est but were valid laws as respect to noncitizens and thus the respondents cannot take the plea that its right to property are being taken away or abridged without the lawful authority.
although the Court failed to look out the difference between the word „void‟ as provided in article 13 (1) and article 13 (2) but this construction will not affect its reasoning that the law shall be applicable as against non-citizens. Although the meaning of word „void‟ for all practical purpose is same in both clauses of the article but there is one vital difference between voidness arising out of pre-Constitutional law and post-Constitutional law. This view has been affirmed by various scholars46 and the Supreme Court decision in Mahendarlal Case.47 The voidness of the pre-Constitutional laws is not from inception. Such voidness supervened when the Constitution came into force; and so they existed and operated for sometime and for certain purposes; the voidness of post-Constitution laws is from their very inception and they cannot therefore, continue to exist for any purpose.48 The voidness of postConstitution law emerges due to the prohibition which is incorporated in article 13 (1) that the State shall not make any law.
The judgments of Bhikaji and Deep Chand were upheld in the cases of Mahendra Lal Jain v. State of Uttar Pradesh, State of Gujarat v. Ambica Mills, Sagir Ahmed v. State of Uttar Pradesh and P. L. Mehra v. D. R. Khanna.
THE UTILITY OF THE DOCTRINE OF ECLIPSE IN THE REALM OF POST-CONSTITUTIONAL LAWS
Can the Doctrine be applied to Post-Constitutional Laws?
In the author's opinion, three questions must be answered, in order to gauge the applicability of the Doctrine to post-Constitutional laws. First, can a post-Constitutional law be revived by a subsequent Constitutional amendment removing the Constitutional bar to its enforceability? Second, if a Post-Constitutional law violates rights conferred on citizens alone, (and thus becomes void qua them), does it remain valid and operative qua non-citizens like foreigners and companies? Finally, can amending the Act in question so as to remove the blemish revive the law in question, or will it have to be re-enacted as a whole? This Part will examine each of these questions in detail.
In Saghir Ahmed v. State of U.P., a Constitution Bench of the Apex Court unanimously stated that the Doctrine could not applied to the impugned Post-Constitutional law. A legislation that contravened Article 19(1)(g) and was not protected by clause (6) ofthe Article, when it was enacted after the commencement of the Constitution, could not be validated even by subsequent Constitutional amendment.
However, the following observation of Das, C.J. in Bhikaji, has generated much perplexity on the issue:
But apart from this distinction between pre-Constitution and Post-Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void 'to the extent of such inconsistency.' Such laws were not dead for all purposes. They existed for the purpose of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens.
The "American authorities" referred to in this case by the Supreme Court involved only post-Constitutional laws which were inconsistent with the provisions of the American Constitution, and which were held to be "still born", as it were. Thus, these American rulings clearly could not apply to the case of Pre-Constitutional laws that were perfectly valid before the Constitution's provisions took effect. Nevertheless, this observation has been used to contend that the Court has not drawn any distinction between pre- and post-Constitutionallaws. The author submits, however, that in the latter part of the observation, the Court had in mind only the pre-Constitutional laws, otherwise it could not have stated that the laws existed for the purpose of Pre-Constitutional rights and liabilities and that they remained operative even after the Constitution as against non-citizens.
In Deep Chand v. State of U.P.28 it was held that there is a clear distinction between the two clauses of Article 13. Under clause (1) a pre-Constitutional law subsists except to the extent of its inconsistency with the provisions of Part III, whereas as per clause (2), no post-Constitutional law can be made contravening the provisions of Part III and therefore the law to that extent, though made, is a nullity from its inception.
Mahendra Lal Jaini v. State of U.P. is the most authoritative decision for the impossibility of reviving post-Constitutional laws by a Constitutional amendment. The Court based its finding on the two grounds. First, the language and scope of Article 13(1) and 13(2) are different. Clause (1) clearly recognizes the existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by the Doctrine. Clause (2) on the other hand begins with an injunction to the State not to make a law which takes away or abridgesthe rights conferred by Part III. The legislative power of Parliament and State Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore, subject to Article 13(2). Second, "contravention" takes place only once the law is made. This is because the contravention is of the prohibition to makeany law, which takes away or abridges the fundamental rights. It is no argument to say that simply because the Amendment removes any subsequent scope for contravention, the law is no longer in conflict with the Constitution.
However, the scope of the principles established above stands drastically curtailed in view of the Supreme Court decision in State of Gujarat v. Shree Ambica Mills, wherein Matthew, J. held that like a pre-Constitutional law, a post-Constitutional law contravening a fundamental right could also be valid in relation to those, whose rights were not infringed upon. For instance, when a post-Constitutional law violates a fundamental right like Article 19 which is granted to citizens alone, it would remain valid in relation to non-citizens. Thus, the term "void" in both the clauses of Article 13 makes a law only relatively void, and not absolutely void.
This judgment has been used to contend that the Doctrine has finally been extended to all post-Constitutional laws as well, since it recognizes that the law is not an absolute nullity and can operate against non-citizens. The author submits that this is not the correct proposition oflaw. It is evident that a law which abridges the rights of only citizens will remain enforceable against non-citizens, and thus, there is no question of the Doctrine of Eclipse even entering the picture. However, as regards citizens whose rights were infringed, the law must be regarded as stillborn and void ab initio, and therefore, in order to make it apply to citizens, the law would have to re-enacted afresh.
From this arises the final question: When a post-Constitutional law is held inconsistent with a fundamental right, can it be revived by amending the Act in question so as to remove the blemish, or will it have to be re-enacted as a whole? The Delhi High Court in P.L. Mehra v. D.R. Khanna, has held that the legislation will have to be re-enacted and that it cannot be revived by mere amendment. This view appears to the author to emanate logically from the position adopted by the Supreme Court in treating such a law as void ab initio. There is, therefore, no need to apply the Doctrine of Eclipse to post-Constitutional laws, as discussed above. There is no direct Supreme Court ruling on this point. The closest authority on this issue is Shama Rao v. State ofMaharashtra, wherein an Act was challenged on the ground of excessive delegation, and pending the decision, the Legislaturepassed an Amendment Act seeking to remove the defect. The Supreme Court ruled by a majority that when an Act suffers from excessive delegation, it is stillborn and void ab initio. It cannot be revived by an amending Act seeking to remove the vice, and must be re-enacted as a whole. It is submitted that this ruling supports the proposition that an Act held invalid under Article 13(2) would not be revived merely by amending it, but would have to be re-enacted. Hence, we may safely infer that Ambica Mills does not destroy the force of the judicial pronouncements in Deep Chand and MahendraJaini, but merely limits the scope of their operation, and that the Doctrine, as of now, cannot be extended to post-Constitutional laws.
THE REPERCUSSSION OF DEGREE OF UNLAWFULNESS IF ANY
it must be noted in this connection, that Indian courts have in the past tried to draw a distinction between laws void due to lack of necessary competence on the part of the Legislature, and those void due to constitutional prohibitions. According to VenkataramaAyyar, J. in Behram, the legal effect of the declaration of unconstitutionality (and by implication, the applicability of the Doctrine), differs depending upon whether the constitutional prohibition that has been infringed affects the competence of the Legislature to enact the law, or whether it merely operates as a check on the exercise of a power which is withinits competence. It is only if the unconstitutionality is due to legislative incompetence, that such a law will be an absolute nullity. A distinction was also drawn between a Constitutional prohibition enacted for the benefit of the public generally, and that for individual benefit, the former being a nullity, the latter merely unenforceable. However, Mahajan, C.J., speaking for the majority in Behram, had rejected this distinction outright. He was of the opinion that both declarations of unconstitutionality go to the root of the legislative power, and that there is no distinction between them. The rationale for this was that the legislative power of the Parliament and State Legislatures, conferred by Articles 245 and 246, are curtailed by Part III of the Constitution, dealing with fundamental rights, as has been clearly stated in Article 13(2). This sufficiently indicates that there is no competency in the Parliament or State Legislatures to make a law which comes into clash with Part III.
In this context, however, a reference may be made to the provisions of Article 31B, read with the Ninth Schedule of the Constitution. In A.K. Krishnaswamy v. State ofMadras, the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 was struck down as unconstitutional for violating Articles 14, 19, and 31(2). Subsequent to the decision, the Act was added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964. The Act was again challenged in L. Jagannath v. AuthorisedOfficer. It was contended by the appellant that the Act, having been struck down as invalid by the Supreme Court in Krishnaswamy, was non-est and void ab initio, and that Article 31B could not validate it without the enactment of a separate validating Act. The Court held that such an Act, even though inoperative when enacted because of its inconsistency with a fundamental right, assumes full force and vigour retrospectively, as soon as it is included in the Ninth Schedule, and hence, it is not necessary to re-enact it.
Thus, the author submits that the same result will be achieved as regards the post-Constitutional laws by invoking Article 31B, read with the Ninth Schedule, as is achieved by the application of the Doctrine of Eclipse to pre-Constitutional laws.
By Bhavya, 3rd year law student from Chanakya National Law University.