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Contents
- Acknowledgments......................................................................................................................
- Statement of purpose..................................................................................................................
- Method of study.........................................................................................................................
- Introduction................................................................................................................................
- Article 13....................................................................................................................................
- Explanation of Article 13...........................................................................................................
- Doctrine of eclipse.....................................................................................................................
- Post-constitutional applicability...............................................................................................
- Conclusion................................................................................................................................
- Bibliography.............................................................................................................................
Acknowledgments
I would like to thank my Constitutional Law Professor, Mrs. Sushma Sharma, for giving me the opportunity to make this project. Without her guidance, this project would have been incomplete.
I would also like to thank my University for providing me with the facilities to make this project.
Introduction
Constitution of a country is a shapes the organisation and development of a society both for the present and for the future generations. A constitution defines and limits the power of the state. It performs an important “levelling function”, and both an individual and the State are made subject to the constitutional provisions. In order to ensure that the constitution does not become a façade, and those in powers in the state do not invade the rights of the citizens, some guiding principles have been devised to see that people are not capriciously denuded of their inviolable rights. These are the overarching principles that seek to fetter the unconstitutional exercise of constitutional powers. The tradition of analytical jurisprudence, from John Austin and Hans Kelsen onwards, highlights, in all its complexity, the basic notion that constitutions constitute a ‘higher law’ governing all forms of authoritative legal enunciations and performances. Erwin Chemerwinsky states that “constitution is an attempt by the society to limit itself to protect the values it most cherishes.”
In India, we the people, adopted and gave to ourselves a constitution which recognises certain basic fundamental rights of the individuals under Part III. The underlying idea in entrenching certain basic and Fundamental Rights is to take them out of the reach of transient political majorities. It has, therefore, came to be regarded as essential that these rights be entrenched in such a way that they may not be violated, tempered or interfered with by an oppressive government. These rights put fetters upon the governmental actions that are likely to infringe upon the fundamental rights which find a pristine place in our constitution. The constitutional scheme uses Article 13 as the bulwark against any infringement upon the fundamental rights. The constitution arms the judiciary with the power of judicial review and makes it the guardian, protector and the interpreter of the fundamental rights. It, in essence, confers power as well as cast an obligation on the courts to declare a law void if it is found to be inconsistent with a fundamental right.
The provisions of Part III of our Constitution, which enumerates the Fundamental Rights, are more elaborate than those of any other existing written Constitutions of the World and cover a wide range of topics.
The Purpose of the Fundamental Rights are to act as limitations not only upon the powers of the Executive but also upon the power of the Legislature. The model has been taken from the Constitutions of The United States, though The Indian Constitutions does not go so far, and rather affects the compromise between the doctrines of Parliamentary Sovereignty and Judicial Supremacy.
The Constitutions itself classifies the Fundamental Rights under seven groups as follows: -
a. Right to Equality b. Right to Particular freedoms c. Right against Exploitation d. Right to freedom of religion e. Cultural and educational rights f. Right to Constitutional remedies g. Right to property – has been eliminated by the 44 th^ amendment Act, thus only six freedom now remain, in Article 19 (1).
The present paper makes an endeavour to debate and deliberate upon the question of Doctrine of Eclipse and issues appurtenant thereto which make a student of constitutional law pause and ponder, within the broad framework of Article 13.
Explanation of Article 13
Article 13 provides the meaning of ‘law’. However, this meaning does not extend beyond Part III of the Constitution. It in detail lays down the scope of ‘law’ and while doing so makes it clear that under what circumstances the pre-constitutional as well as post constitutional laws shall be valid or void. To put it simply, the guiding light is if the laws are inconsistent with or in derogation of the fundamental rights. This clearly puts a definite limitation on the wide legislative powers given by Article 246. It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation. The legislative power of the parliament and the State legislature has been subjected to two limitations:
- The law must be within the legislative competence.
- The law must be subject to the provisions of the Constitution and must not take away or abridge the rights conferred under Part III.
Both these limitations being justifiable, the courts can decide if either of the limitations has been transgressed by the legislature of the Parliament. The power derived from Articles 245 and 246 to make law has to be exercised keeping in view the limitations delineated under Article 13 of the Constitution. This power is subject to the above limitations .In fact, this article equips the courts with the power of judicial review by making the Part III rights justifiable. That is Courts have been entrusted under the Indian constitution with the power to decide the question of justifiability as is perspicuous from the provisions contained under Article 13. “In order to keep the executive/ legislature within the limits assigned to their authority under the constitution the interpretation of laws is the proper and peculiar province of the judiciary. Mahendra P Singh, a well-known authority on Indian Constitution observes:
Article 13 lays down that what would otherwise been implied, i.e. the supremacy of the fundamental rights over any other law in case of inconsistency between the two. It could also mean that the constitution makers intended to confine the application of fundamental rights to what is stated in this article. Thus, for example, pre-constitutional laws shall be invalid only to the extent they fall within the category of ‘laws in force’. As uncodified personal laws do not fall within that category, it could be argued that they were not intended to become invalid on the ground of any inconsistency with the fundamental rights.
In giving to themselves the Constitution, the people have reserved the fundamental freedoms to themselves. Article 13 merely incorporates that reservation. The article is not the source of protection of fundamental rights, but the expression of reservation.
In A K Gopalan v. State of Madras 1, the Supreme Court was of the view that the inclusion of Article 13(1) and (2) in the constitution appears to be a matter of abundant caution. Even in their absence, if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment to the extent it transgresses the limits, invalid. The existence of Article 13(1) and (2) in the Constitution therefore in not material for the decision of the question what fundamental right is given and to what extent it is permitted to be abridged by the Constitution. (Emphasis added) The reason, as D D Basu opines, is “ that the very adoption of written constitution with a Bill of Rights and judicial review implies that Courts shall have the power to strike down a law which contravenes a fundamental right or some other limitation imposed by the constitution ”.
1 AIR 1950 SC 27
Doctrine of eclipse
The above doctrine is important as regards the validation of void laws. Certain existing laws sometimes may get eclipsed by reason of their clash with the exercise of fundamental rights contained under Part III of the Constitution. There are certain pertinent questions in this context like whether the doctrine of eclipse applies only to the pre-constitutional laws or to the post-constitutional laws also, whether the laws in force before the commencement of the constitution become void ab initio or void in toto if they are inconsistent with a fundamental right_._ And also what about the persons whose rights it does not affect: does the voidness of the law depend upon the person whose fundamental rights it contravenes? The guiding light can be traced to Article 13 which provides inter alia that “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, shall, to the extent of such inconsistency, be void.”
The voidness of such law is limited to the extent of inconsistency with the provisions of Part III of the Constitution. The voidness of law under Clause (1) does not imply voidness ab initio. In Keshavan Madhav Menon v. State of Bombay 2 the effect of Article 13(1) was in question before the Court. The Court had to decide the import of Article 13 in this case. The broad issue in this case was whether a prosecution commenced before the commencement of the Constitution, could be continued after the Constitution came into force if the concerned Act became void given that it violated Article 19(1) (a) and (2) of the Constitution. Das, J observed that the prosecution could be continued because the provisions of the constitution were not retrospective provided they were explicitly so declared. It is axiomatic from the provisions of the constitution that it has no retrospective effect. The Part III of the constitution is prospective, and that being so, the existing laws can become, and can be rendered, void from the date of the commencement of the constitution. An existing law becomes inoperative only from the date of the commencement of the constitution. The very fact that it is inconsistent with the fundamental rights does not make it a dead law. As far as the determination of rights and obligation incurred before commencement of the constitution is concerned, such a law is a good law. In Bhikaji Narayan v. State of Madhya Pradesh 3, the Supreme Court formulated the doctrine of eclipse thus:
The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or infirmity
Therefore, the doctrine implies that the shadow cast by the fundamental right can be removed by a subsequent amendment to the constitution, and once it is so done, the law in the moribund or eclipsed state becomes operative. It gets revived, freed from all blemishes and infirmity. That is, the pre- constitutional laws continue to be law though in an eclipsed state. They are inoperative laws whose revival in post constitutional period is contingent upon a subsequent amendment that would remove the shadow. In Keshavan Madhava Meno 4 , Mahajan, C J observed that:
…the part of the section of an existing law which is unconstitutional is not law, and is null and void. For determining the rights and obligations of citizens the part declared void should be notionally taken to be obliterated from the section for all intents and purposes, though for the determination of the rights and obligations incurred prior to 26 January 1950, and also for the determination of rights of persons who have not been given fundamental rights by the constitution. [Emphasis supplied].
2 AIR 1951 SC 128
3 AIR 1955 SC 781
4 Supra note, 2
Post-constitutional applicability
Rival opinions abound as to the application of doctrine of eclipse to pre- and post- constitutional law. The implications of different opinions are profound and have far-reaching impact on the nature of law as provided under Article 13 of the Constitution. It is the general view that doctrine of eclipse applies only to the pre-constitutional laws, and not to the post-constitutional laws. In Mahendralal Jaini v. State 5 , the Court observed:
“The doctrine of eclipse will apply to pre-Constitutional laws which are governed by Article 13(1) and would not apply to post-Constitutional laws which are governed by Article 13(2). Unlike a law governed by Article13 (1) which was valid when made, the law made in contravention of the prohibition contained in Article 13(2) is a stillborn law either wholly or partially depending upon the extent of the contravention. Such law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. It cannot confer power on the state to enact a law in breach of Article 13(2) which would be the effect of the application of the doctrine of eclipse to post-constitutional laws.”
However, interestingly in Bhikaji in which the Supreme Court enunciated the doctrine of eclipse, Das, ACJ made the following observation that tells a different story:
“ All laws, existing or future, which are inconsistent with the provisions of Part III or our Constitution, are, by the express provision of article 13, rendered void ‘to the extent of such inconsistency’. Such laws were not dead for all purposes. They existed for the purpose of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. It is only as against the citizens that they remained in a dormant or a moribund condition.”
It is clearly inferable that the above dictum did not make any distinction between pre- and post- Constitutional laws. DD Basu is of the view that as far as post-constitutional laws are concerned, the doctrine of eclipse is not applicable. The same view is also shared by MP Jain. Be that as it may, in the State of Gujarat v. Shri Ambica Mills 6, though the doctrine of eclipse was not an issue, the Court through its decision made it clear that the doctrine applies to both the pre-constitutional as well as post-constitutional laws. Mathew, J. observed that “any statement that a law which takes away or abridges fundamental rights conferred under Part III is still born or null or void requires qualification in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognised and acknowledged for all purposes and is no law and nullity, this neither universal nor absolutely true, and there are many exceptions to it.”
It is submitted that the view which holds that ‘void’ under Article 13(2) can only be void against persons whose fundamental rights are taken away or abridged by law, seems reasonable and convincing. The law might be ‘still born’ so far as the persons, entities or denominations whose fundamental rights are taken away or abridged but there is no reason why the law should be void or still born as against those who have no such rights. Mathew, J. in Ambica Mills makes a valid point when he reasons:
“The real reason why it remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their fundamental rights alone. If that be so, we see no reason why a post- constitutional law which takes away or abridges the rights conferred by Article 19 should
5 AIR 1963 SC 1019 6 AIR 1974 SC 1300
not be operative in regard to the non-citizens as it void only to the extent of the contravention of the rights conferred on citizens, namely, those under Article 19.”
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