Law and You > Constitutional Law > Doctrine of Eclipse
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can be removed by constitutional amendment to the relevant fundamental right so that eclipse vanishes and the entire law becomes valid. In other words till the time a law violates a fundamental right provided by the Indian Constitution, it is dormant and inoperative. But if such fundamental right is amended and thereby, the law no more violates, then in such a situation the law becomes alive and operative. Such eclipsed laws exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. It is only 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.
Land Mark Judgment for Doctrine of Eclipse
In Bhikhaji v. State of M.P., AIR 1955 S.C. 781 case, the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1)(g) of the Constitution.
However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorize the Government to monopolize any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal. Effect of eclipsing is only 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.
In Keshava Madhava Menon v. State of Bombay, 1951 AIR 128, case the petitioner was prosecuted under a press law for publishing a pamphlet without permission. While the prosecution was on, the Constitution commenced and he challenged the act as unconstitutional. Issues arose (a) whether sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article?, and (b) assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?
The court held that since constitutional rights came from date of commencement of Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. The law became void not in toto or for all purposes or for all times or for all persons but only “to the extent of such inconsistency”, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens.
In Deep Chand v. State of Uttar Pradesh, 1959 AIR SC 648, case, the Court held that a post- Constitution law is void from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as non-citizens are concerned after the Constitution came into force. This is so because prior to commencement of constitution legislature had the competence to pass such act but after the commencement of the Constitution, the legislature does not has the competence to pass.
In Ambica Mills Ltd. v. State Of Gujarat, (1964) 0 GLR 446 case, the Court held that if a post-constitutional statute is void because it infringes rights of a citizen then that doesn’t mean it is void for non-citizens as well as the law is limited to the void of contravention.
In Shankri Prasad v. Union of India, AIR 1951 SC 455 case, The constitutional validity of first amendment (1951), which curtailed the right to property, was challenged. The Court held that the power to amend the Constitution under Article 368 also included the power to amend fundamental rights and that the word “law” in Article 13 (8) includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.
In Mahendra Lal Jaini v. State of U.P., 1963 AIR SC1019 case, the Court opined that Article 13(1) recognizes the existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by the Doctrine of Eclipse and Article 13(2) provides for an injunction to the State not to make a law which takes away or abridges the 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). Since contravention arises only on passing the law an argument that a later amendment to Constitution removes the contravention would not sustain.
Striking of Part of Law by Court
When a court strikes a part of the 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.
Application of Doctrine of Eclipse to Article 368
In Golak Nath v. State of Punjab (1967) case, the family of Henry and William Golak Nath held over 500 acres of farmland in Jalandhar, Punjab. In the phase of the 1953 Punjab Security and Land Tenures Act, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared ‘surplus’. This was challenged by the Golak Nath family in the courts and the case was referred to the Supreme Court in 1965. The family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it denied them their constitutional rights to acquire and hold property and practice any profession (Articles 19(f) and (g)) and to equality before and equal protection of the law (Article 14). They also sought to have the Seventeenth Amendment – which had placed the Punjab Act in the Ninth Schedule – declared ultra vires’. The judgment reversed the Supreme Court’s earlier decision which had upheld Parliament’s power to amend all parts of the Constitution, including Part III related to Fundamental Rights. The judgment left Parliament with no power to curtail Fundamental Rights and opined that the amendment needs to be constitutional. Thus Article 368 was eclipsed.
In Kesavanand Bharati v. State of Kerala, (1973) 4 SCC 225 case, the Court held that the Parliament under the Indian Constitution is not supreme, but can amend constitution including fundamental rights without changing the basic structure of the constitution. Thus it removed eclipse from Article 368.
Application of Doctrine of Eclipse to Section 309 of IPC
In Rathinam v. Union of India, 1994 AIR SC 1844, case, the petitioner had filed petitions challenging the constitutional validity of Section 309 of the Indian Penal Code. Section 309 punishes anyone who attempts to commit suicide with simple imprisonment for up to one year. The central question that was addressed and answered, though inadequately, was whether the offence of attempt to commit suicide under Section 309 IPC should be retained or abolished. The Supreme Court drew a parallel between the other fundamental rights – just as the right to freedom of speech under Article 19 gives the right to speak but also includes the right to not speak, the right to live under Article 21 includes the right to not live. Thus, Section 309 was held to be unconstitutional. The Court opted for its abolition and Section 309 is no more part of the IPC.
In Gian Kaur v. State of Punjab, 1996 AIR SC 946 case, Gian Kaur and her husband Harbans Singh were convicted by a Trial Court under Section 306 of the Indian Penal Code. They were sentenced to six years imprisonment and fine of Rs. 2,000/- for abetting the suicide by Ms. Kulwant Kaur. Section 306 punishes anyone who abets the commission of suicide, while Section 309 punishes anyone who attempts to commit suicide. It was argued that, as held in P. Rathinam v. Union of India, the Article 21 right to life includes the right to die. So, a person abetting suicide is merely assisting in the enforcement of Article 21. A five-judge bench of the Supreme Court overruled P. Rathinam udgment. It held that P. Rathinam was wrong on the analogy that other fundamental rights include the “right not to” since the right not to speak (going by the illustration P. Rathinam used) is an omission, while a taking a life is an act. The Court clarified that it will not be looking into the issue of Euthanasia, and also distinguished between right to die (unnaturally) and right to die with dignity (naturally). The Court upheld the constitutional validity of Sections 306 and 309 IPC. Thus eclipse on Section 309 was removed.
Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initio but become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.
Schedule IX – Immune to judicial scrutiny, Article 31B – Allows for putting law under Schedule IX and here Doctrine of Eclipse could be used. All laws put under Schedule IX could be checked for basic structure.