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, i.e., 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.
Can such a law which becomes unenforceable after the Constitution came into force
be again revived and made effective by an amendment in the Constitution?
The Supreme Court to solve the problem formulated the doctrine of eclipse in Bhikaji v.
State of M.P. In this case provision of Berar Motor Vehicles (Amendment) Act, 1947
authorized the State Government to make up the entire motor transport business in the
Province to the exclusion of motor transport operators. This provision, though valid when
enacted, became void on the coming into force of the Constitution in 1950 as they violated
Article 19 (1)(g) of the Constitution. However, in 1951, Article 19(6) was amended by the
Constitution (1st Amendment) Act so as to authorise the Government to monopolize any
business. The Supreme Court held that the effect or the Amendment was to remove the
shadow and to make the impugned Act free from all infirmity. It became enforceable
against citizens as well as non-citizens after the constitutional impediment was removed.
This law was merely 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.
Article 13(2) prohibits State to make any law which takes away or abridges rights
conferred by Part III of the Constitution. If State makes such a law then it will be ultra
vires and void to the extent of the contravention. It is still-born law and cannot be revived
by removal of the constitutional prohibition by subsequent amendment of the Constitution.
Though post-Constitution laws inconsistent with fundamental rights are void from their
very inception yet a declaration by the Court of their invalidity will be necessary. As
distinguished from Clause (1), Clause (2) makes the inconsistent laws void ab initio
unconstitutional laws shall have to be set aside.
Does the doctrine of eclipse apply to a post-constitutional law?
In Deep Chand v. State of U.P,the Supreme Court held “Anything done under such a
law, whether closed, completed or inchoate will be wholly illegal and person adversely
affected by it will be entitled to relief” and a post-constitutional law made under Article 13
(2) which contravenes a fundamental right is nullity from its inception und a still-born law.
It is void ab initio. The doctrine of eclipse does not apply to post- constitutional laws and
therefore, a subsequent constitutional amendment cannot revive it. The minority, however
expressed the view that the doctrine of eclipse is applicable even to post-Constitution law.
Mahendra Lal Jain v. State of U.P
In this case the Supreme Court approved the majority view expressed in Deep Chand’s case
and held that the doctrine of eclipse applies only to pre-Constitution law under Article
13(1) and not to post- Constitution law under Article 13 (2). There is a clear distinction
between a pre- Constitution law and a post-Constitution law. The voidness of the preConstitution law is not from its inception but only from the date of the commencement of
the Constitution. On the other hand, the voidness of a post-Constitutional law is from its
very inception and such a law cannot therefore exist for any purpose.
State of Gujarat v. Ambica Mills
In this case the Supreme Court modified its view as expressed in Deep Chand and
Mahendra Lal Jain’s Constitution law which is inconsistent with fundamental rights is not
nullity or non- existent in all cases and for all purposes. The doctrine of absolute nullity is
not universal rule and there are many exceptions to it. A post-Constitution law which takes
away or abridges the right conferred by Article 19 will be operative as regards to non
citizens because fundamental rights are not available to non-citizens. Such a law will
become void or non-existent only against citizens because fundamental rights are conferred
on team. The voidness in Article 13 (2) can only mean void as against persons whose
fundamental rights are taken away or abridged by law. Non-citizens cannot take advantage
of the voidness of the law.
Accordingly, the Court held that the Bombay Labour Welfare Fund Act, 1953 was valid in
respect to non-citizens. The respondent, a company, had challenged the validity of the Act
on the ground that its provisions violated the fundamental rights of citizens, employers and
employees, and, therefore, they were void under Article 13 (2) of the Constitution. It was
held that even assuming that under Article 19 a company was not a citizen it was entitled
to move the High Court and seek a remedy for infringement of its ordinary right to
property. The provisions of the Bombay Labour Welfare Fund Act, 1953 were not nonexistent, but were valid laws enacted by a competent legislature in respect of non-citizens
and the company could not take plea that its right to property was being taken or abridged
without the authority of law.
1- Constitutional Law of India by J.N. Pandey
2- Bare Act, Constitutional Law.
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