Doctrine of Eclipse

Judiciary is recognized as the ‘Watchdog of Democracy’, and the Judicial
Review is demarcated as the interposition of judicial restraint on Legislative

and Executive organs of the Government. On 26 th January 1950, with the
adoption of the written Constitution and the incorporation of Part III which
confers Fundamental Rights to its citizens, it was unavoidable that the
validity of the laws made by the Legislature would be tested on the
touchstone of the Constitution. Soon it was realized that it was essential for
such laws to muster the judicial scrutiny and for the same reason, the
Judiciary evolved doctrines such as Doctrine of Eclipse
(hereinafter ‘Doctrine’).
To comprehend, it’s relevant to look into the provision of Article 13 of the

Indian Constitution, which is very meticulously connected to the Doctrine.
Article 13, the power of Judicial Review, falls under the purview of
Fundamental Rights and is a provision to safeguard the same. It empowers
fundamental rights and concerns the laws inconsistent with or in
derogation of the Fundamental Rights. It deals with the extent of
inconsistency in the pre-constitutional laws as well as in post-constitutional
laws.
The Doctrine applies to and can be invoked only in the case of Article 13(1)
dealing with pre-constitutional laws, 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.” Does
the Doctrine apply to post-constitutional laws? A question widely asked by
the eminent jurists, who posit themselves on the opposing extremes of the
academic spectrum and the highly conflicting jurisdictional
pronouncements add to the confusion.
Doctrine of Eclipse
The Doctrine of Eclipse is a doctrinal principle that advocates the concept

of fundamental rights being prospective. If any law made by the Legislature
is inconsistent with Part III of the Constitution, then that law is invalid and
inoperative to the extent of it being overshadowed by the Fundamental
Rights. The laws are hidden by the relevant fundamental rights, and the
Eclipse is said to be cast on it. The inconsistency of the eclipsed law can be
removed only when the corresponding fundamental right is amended. The
shadowing is then removed, and the law becomes automatically valid and
operative again.
In other words, a law that violates fundamental rights remains in a

moribund condition. It becomes inoperative, unenforceable and takes the
shape of a sleeping provision. It is not a nullity or void ab initio.
Evolution
The development took place in three stages:
 Prospective/ Retrospective Nature of Article 13(1): Keshavan
The case of Keshavan had raised several challenging issues concerning the
Doctrine, in response, is the retrospective and prospective nature of Article
13(1) and the meaning of the word ‘void’ in Article 13(1). In the landmark
incident of Keshavan Madhava Menon v. State of Bombay, the petitioner
was prosecuted under the Indian Press (Emergency Powers) Act of 1931 for
publishing a pamphlet without permission. The case was pending when the
Constitution of India had commenced. The main issue raised was if the
provisions of the Act violated Article 19(1)(a). The Court held the relevant
regulations to be violating Article 19(1)(a) and that they are ‘void’ to the
extent of its inconsistency. The Court further held that fundamental rights
are prima facie prospective in nature and that the word ‘void’ did not mean
repealing the statute or provision.
 Nexus between Article 13(1) and Pre Constitutional Laws: F.N.

Balsara & Behram
Behram Khurshid Pesikaka v. State of Bombay was one of the earliest cases
that explained the reasonable nexus between Article 13(1) and the pre-
constitutional laws. In this case, the appellant was accused under Section
66(b) of the Bombay Prohibition Act of 1949. Previously, Section 13(b) of
the same Act was declared void in the case of F. N. Balsara, because it was
violative of Article 19(1)(f). The appellant took the example of F.N. Balsara
as a precedent. Then Section 66(b) was held inoperative and unenforceable.
The Court said that the part of the law would be unconstitutional and not
the whole law. Further held that the onus to prove citizenship and violative
nature of the provision lies on the accused.
 The Genesis and Evolution of the Doctrine of Eclipse: Bhikaji Narain
The concept, principle and applicability of this Doctrine were polished in

the case of Bhikaji Narain Dhakras v. State of Madhya Pradesh. In this case,
the C. P. and Berar Motor Vehicles Amendment Act of 1947 which had
authorized the State Government to regulate and take up all of the motor
transport businesses, was challenged because it was violative of Article
19(1)(g) of Part III. This Amendment Act was a pre-constitutional law, and
therefore, the Doctrine of Eclipse applied, and the provisions of this
legislative Act were made inoperative. Soon, in the year 1951, Article 19(1)
(g) was amended by the first Constitutional Amendment Act overturning
the Eclipse and making the law enforceable against citizens as well as non-
citizens. The Supreme Court opined that “the effect of the amendment was
to remove the shadow and to make the impugned Act free from all blemish
or infirmity”. The Court also observed that it will still be enforceable
against non-citizens.
Salient features
The significant features and characteristics of the Doctrine are as follows:
1. Applicability to Pre Constitutional Laws
For the Doctrine to apply, the law must be valid at its inception and thus,
can be invoked only in the cases of pre-constitutional laws that have
become operational with the adoption of the Indian Constitution on
26th January 1950.
 Non Applicability to Post Constitutional Laws
They cannot apply to post-constitutional laws because they are invalid at

their inception and thus, cannot be validated by any subsequent
amendment. But there are certain exceptions to the same; non-citizens
cannot take advantage of the voidness, as the violation does not affect them.
 Conflict with the fundamental rights
The past law is supposed to be violating a fundamental right, only then can
it be overshadowed and be termed as inoperative.
 Inoperative
The Doctrine is based on the principle that the law which violates
fundamental right is not nullity or void ab initio but only becomes defective
and unenforceable. The law is overshadowed and hidden by the
fundamental right that it violates. So, the law is not dead but is only
sleeping.
 Fundamental Right and Amendment
If there is an amendment to the relevant FR in future, it will automatically

make the impugned law operative.
Landmark judgements
 Scope and applicability

There has always been a legal struggle concerning the applicability of the
Doctrine. Does the Doctrine apply to Article 13(1), i.e. Pre-Constitutional
Laws or Article 13(2), i.e. Post-Constitutional Laws? This struggle has been
the crux of the issue that has been argued in several cases. The same was
settled in the case of Bhikaji Narain and Deep Chand.
In Deep Chand v. State of Uttar Pradesh, the Supreme Court very

meticulously observed that the Doctrine applies only to pre-constitutional
laws as given under Article 13(1). It does not apply to any post-
constitutional law as under Article 13(2) because the post-constitutional
laws in violation of fundamental rights are void ab initio and stillborn.
The judgment of Bhikaji and Deep Chand was upheld in the case of State of
Gujarat v. Ambica Mills, Mahendra Lal Jain v. State of Uttar Pradesh, P. L.
Mehra v. D. R. Khanna and Sagir Ahmed v. State of Uttar Pradesh.
 Doctrine of Eclipse and article 368
The debate on the validity and absoluteness of Article 368 started with the
case of Golaknath. In I. C. Golaknath v. State of Punjab, the Punjab Security
and Land Tenures Act of 1953 was challenged on the ground that this
legislative Act had violated the fundamental right to hold and acquire
property and practice any profession. The judgment left the Parliament
Legislature with no power to break the fundamental rights and provided
them with restrictive amending powers under Article 368. Therefore,
Article 368 was eclipsed.
The judgment of I. C. Golaknath was overturned in the legendary case of

Keshavananda Bharti v. Union of India[1], which stated that the Parliament
could amend the fundamental rights of the Indian Constitution but without
changing the basic structure of the Constitution and thus, removed the
Eclipse from Article 368.
 Doctrine of Eclipse and section 309
The Doctrine is seen to extend to the provisions under the Indian Penal
Code, as observed in the cases of Rathinam and Gian Kaur. In the case of
Rathinam v. Union of India, Section 309 of IPC that criminalizes attempt to
suicide was challenged. The Court drew a parallel between Article 19 and
Article 21 and observed that Article 21 holds right to live, so it also induces
right not to live and holds Section 309 to be unconstitutional, and therefore
it was eclipsed. After two years, a five-judge constitutional bench in the case
of Gian Kaur v. State of Punjab reversed the Judgment of Rathinam case
and upheld the validity of Section 309. Thus, the Eclipse on Section 309
was removed and became operational again.
Critical analysis and conclusion
Whether the Doctrine will apply to post-constitutional law has always

engendered acrimonious debates among jurists and juries. The lawmakers
and researchers have been prayerful for a final pivotal judicial adjudication
and clarity upon the Doctrine and on the word ‘void’.
Will the American impression of ‘relatively void’ be applied in India? Is

there any difference between ‘unlawfulness’ and ‘lawfulness’? Questions
like these are yet to be clarified by the Court of law. However, it should also
be noted that the main objective behind the Doctrine is to avoid any
administrative and legislative hassle. It safeguards the pre-constitutional
laws and helps revive it automatically. It prevents wastage of time and
resources necessarily incurred in re-enacting.
In India, the Doctrine of Eclipse is one such theory that is said to safeguard
the pre-constitutional laws from being completely wiped out. It gives us a
very refined, nuanced aspect of the rule of law. Theorists believe that if
there were no Doctrine of Eclipse, then constitutionalism would’ve been
compromised. This theory has helped break the thin line between pre-
constitutional laws and the post-constitutional laws. It is a tool to
harmonize the central dictates of the Indian Constitution.

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Judiciary is recognized as the ‘Watchdog of Democracy’, and the Judicial

Review is demarcated as the interposition of judicial restraint on Legislative

To comprehend, it’s relevant to look into the provision of Article 13 of the

The Doctrine of Eclipse is a doctrinal principle that advocates the concept

In other words, a law that violates fundamental rights remains in a

The development took place in three stages:

 Prospective/ Retrospective Nature of Article 13(1): Keshavan

 Nexus between Article 13(1) and Pre Constitutional Laws: F.N.

 The Genesis and Evolution of the Doctrine of Eclipse: Bhikaji Narain

The concept, principle and applicability of this Doctrine were polished in

The significant features and characteristics of the Doctrine are as follows:

1. Applicability to Pre Constitutional Laws

 Non Applicability to Post Constitutional Laws

They cannot apply to post-constitutional laws because they are invalid at

 Conflict with the fundamental rights

 Fundamental Right and Amendment

If there is an amendment to the relevant FR in future, it will automatically

 Scope and applicability

In Deep Chand v. State of Uttar Pradesh, the Supreme Court very

 Doctrine of Eclipse and article 368

The judgment of I. C. Golaknath was overturned in the legendary case of

 Doctrine of Eclipse and section 309

Whether the Doctrine will apply to post-constitutional law has always

Will the American impression of ‘relatively void’ be applied in India? Is

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