This post has been created by Monesh Kumar, a third year law student from Guru Gobind Singh Indraprastha University, New Delhi.
“Three things cannot be long hidden: the sun, the moon and the truth.”
“Judicial Review” is defined as the imposition of judicial restraint on the legislative and executive organs of the Government. It is the “watching or inter checking by the judiciary of the exercise of powers by other co-ordinate organs of government to keep the check upon the balance of powers and ensuring that they remain confined to the limits defined 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 presupposes 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.
Meaning and scope
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 stagnant condition. “It is over-shadowed by the Fundamental rights and remains asleep, but not dead.” Such laws are not wiped out entirely from the statute.
They apply on 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 sleeping condition but they remain in operation as against non-citizens who are not entitled to Fundamental Rights.
With the incorporation of Part III in the Indian constitution conferring Fundamental Rights, it got ineluctable that the validity of all laws in India would be tested on the benchmark of the Constitution. The Constitution-makers included an explicit guarantee of the justifiability of fundamental rights in Article 13, which has been invoked on numerous occasions for declaring laws contravening them void. Courts have evolved various doctrines and the Doctrine of Eclipse 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 short, the Doctrine seeks to reiterate that:
“If a law is declared null and void for violating a fundamental right, and then that fundamental right is itself amended such that the law is defenestrated of any inconsistency with it and the law need not to re-enacted, afresh, and it can 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 neither gets void for unconstitutionality is non-est (non-existent) nor is “expressively annihilated” 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.
In the case of “Keshavan Madhava Menon v. The State of Bombay”, the law in question was an existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19(1)(g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under article 13(1) that existing law became void “to the extent of such inconsistency”.
The court said that the law became void not in toto (completely) 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.
Supreme Court dictated the doctrine of eclipse in Bhikhaji v. State of M.P. In this 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.
The doctrine of eclipse has been held to apply only to pre-constitution and not to the post constitution laws. The reason is that while a pre-constitution law was valid when enacted and, therefore was not void ab initio, but its validity supervened when the constitution came into force, a post constitution law infringing a fundamental right is unconstitutional and a nullity from its very inception. Therefore, it cannot can be effected by a subsequent amendment of the constitution removing the infirmity in the way of passing the law.
The Supreme Court has distinguished between article 13(1) and 13(2), as the concept of the two is different from each other. Article 13(2) which applies to the post-constitution laws prohibits the making of a law abridging fundamental rights while article 13(1) which applies to the pre-constitution laws contains no such prohibition. Under article 13(1), the operation of the pre-constitution law remains unaffected until 26-01-1950, even if it becomes inoperative after the commencement of the constitution. Under article 13(2), the words “the state shall not make any law” indicate that after the commencement of the constitution, no law can be made so as to contravene a fundamental right. Such a law is void ab initio. Therefore, the doctrine of eclipse cannot apply to such a law and it cannot revive even if the relevant fundamental right is amended later to remove the hurdle in the way of such a law.
The Doctrine of Eclipse epitomizes a fine, expressed aspect of the theory of Constitutionalism and the rule of law; and the fundamental distinction that it suggests between lawfulness and unlawfulness. It is used in exceptional cases in order to save unconstitutional statutes from being totally expunged off the statute book, and to merely render them inoperative for the time being.
A statute held unconstitutional cannot be revived except by re-enactment, a statute under eclipse is revived by obliteration of the limitations generating the trace of unconstitutionality. It has been extended far beyond the sphere of distribution of legislative power between the Center and the States, and has been used as a gizmo for balance the pre-Constitutional legal provision with the main features of the Constitution.