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ABOUT THE AUTHOR
Advocate Dr. Rau P S Girwar is an esteemed advocate and has been involved in the field of law since 2010 and has contested cases in the Supreme Court of India and various high courts including the Punjab and Haryana High Court, Delhi High Court, Indore High Court and various district and sessions courts.
He has an excellence and experience in civil, criminal, constitutional and service matters and has a wide range of experiences in various matters including money laundering, narcotic and murder cases.
This article has been written with assistance of his junior Kushaatula Puhanian, who is a second year law-student studying at the Guru Gobind Singh Indraprastha University, New Delhi.
INTRODUCTION
Article 13 is considered one of the most important articles of the Constitution of India, as it provides for the verification of the adoption of the law or serves as the basis for declaring the law constitutional. These articles are governed by various doctrines that help to understand the very nature of article 13 of the Constitution.
The Eclipse doctrine finds its connection with article 13 (1) of the Indian Constitution, which states::
“All laws in force in the territory of India immediately prior to the entry into force of this Constitution, to the extent that they are contrary to the provisions of this part, are invalid to the extent that they are contrary to the provisions of this part.”
The Eclipse doctrine states that: any law that is incompatible with fundamental rights is invalid, but it is not completely unconstitutional, when such a scenario occurs, the law is given the status of inactive for a while, and after the part that is unconstitutional is removed, the law can be applied again.
This is usually used in a scenario where a law in force since its creation becomes a violation of the fundamental rights granted under Part III of the Constitution after the Constitution enters into force. In this case, the law is considered dormant, not dead, and after the removal of vices or infirmities, it will then become enforceable.
This doctrine was proclaimed by the Supreme Court in Bhikaji v. State MP[1], where the doctrine was applied to an Act that was passed by the Government in 1950, prior to the entry into force of the Constitution, which was later found to be incompatible with article 19(1)(g). Later, the Constitution was amended to ensure a harmonious relationship between the Law and the Constitution, and the Court ruled that, thanks to this amendment, the inconsistency in the Constitution was eliminated, and the law was revived and made enforceable.
ELEMENTS OF THE DOCTRINE OF ECLIPSE
The doctrine of eclipse can be applied in a scenario where all the elements which are stated as under are fulfilled:
- Law being valid since its inception.
- The pre-constitutional law being made validly.
- The pre-constitutional valid law infringing the rights conferred under Part III of the Constitution.
APPLICATION OF THE DOCTRINE
This doctrine applies only to constitutional law, with the exception of certain circumstances that have been further clarified in this article.
In Deep Chand v. State of U. P[2]., the Supreme Court held that a post-constitutional law passed under section 13 (2) that is contrary to the basic law is invalid from its creation and a stillborn law. It is a void ab initio.
State of Gujrat v Ambica Mills[3], the Supreme Court modified its view as expressed in Deep Chand and Mahendra lal Jain case and stated that a post constitutional law which is inconsistent with the fundamental rights is not nullity or non-existent in all cases and for all purposes.
However, as mentioned above, there are certain exceptions that can be seen in this doctrine. Sometimes, when a law is in conflict with only Article 19 of the Constitution or does not abridge the rights conferred under Part III of the citizens. Then, this law can be applied even in post-constitutional cases.
In the case of Jaganath v. Authorised Officer[4] it was held that a post constitutional law which takes away or abridges the fundamental rights is not void or non-existent in all cases and for all purposes.
Such a law would be void and ineffective against the persons whose Fundamental Rights which are available only to citizens it will be void against the citizens but valid against non-citizens.
[1] 1955 AIR 781
[2] 1959 AIR 648
[3] 1974 SCR (3) 760
[4] AIR 1972 SC 425