Doctrine Of Eclipse 2b2w7

LLB FIRST SEMESTER-CONSTITUTION PART 1

Q1 Explain the Doctrine of Eclipse (Pre Constitutional Laws) Art 13 (1). Ans: Art 13 provides that any law which made before the commencement of constitution must be consistent with the part III of the constitution. If any statue is inconsistence with the provisions of part III of the constitution such statue shall become void. At the same time such statue shall not be treat as dead unless it is abolish by Parliament. It will be treated as dormant or remains eclipsed to the extent it comes under the shadow of the fundamental rights. Regarding the doctrine of eclipse few points need to be consider. It is held to be applied only the Pre Constitutional Laws, and not to be post constitutional laws. If by subsequent amendments, the Fundamental Rights are amended in such a way to give way to these Laws, then these Laws become active once again. Supreme Court formulated the Doctrine of Eclipse in Bhikaji vs State of M.P, AIR 1955 S.c 781.

PETITIONER: BHIKAJI NARAIN DHAKRAS AND OTHERS Vs. RESPONDENT: THE STATE OF MADHYA PRADESH AND ANOTHER DATE OF JUDGMENT: 29/09/1955 BENCH: DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA IMAM, SYED JAFFER AIYAR, N. CHANDRASEKHARA

LLB FIRST SEMESTER-CONSTITUTION PART 1 CITATION: 1955 AIR 781 1955 SCR (2) 589 ACT: Fundamental Rights, Infringement of -- Law void for inconsistency--'Void', Meaning of-Removal of inconsistency by amendment of the Constitution, if revivifies the law-Constitution of India as amended by the constitution (First Amendment) Act, 1951 and the Constitution (Fourth Amendment) Act, 1955, Arts. 13, 19(6), 31(2)-C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).

In this case the provisions of C.P and Berar Moto Vehicles 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. However in 1951, Clause 6 of the Article 19 was amended by the 1stAmendment Act to authorize the Government to monopolize any business.

The Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initio but become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from infirmity. It became enforceable against citizens as well as non-citizens after the constitutional barrier was removed. This law was eclipsed by the Fundamental Rights and as soon as the Fundamental Right was amended to remove the eclipse, the law became operational from the date of removal.

LLB FIRST SEMESTER-CONSTITUTION PART 1

An

example of this is Section 309 of the Indian Penal Code which the Supreme Court in the case of P. Ratinam held as unconstitutional. However it remained in the IPC and therefore it was under eclipse. However when a constitutional bench in Gian Kaur case reversed this decision and held Section 309 as constitutional, the eclipse was removed and it because operable again. An example of a provision which remains in eclipse presently is of Section 301 which has been declared as unconstitutional by the Supreme Court. Now till the time this decision is reversed or the provision is removed from IPC, it will remain under eclipse. “The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right.” We see that such laws are not dead for all purposes. They exist for the purposes of pre-Constitution rights and liabilities and they remain operative, even after the commencement of the Constitution, as against non-citizens. It is only as against the citizens that they remain in a dormant or moribund condition. Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initio but become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.