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.The Doctrine of Eclipse by Mayurakshi Sarkar at Lexcliq

 The Doctrine of Eclipse by Mayurakshi Sarkar at Lexcliq


The idea of eclipse under Indian law argues that any existing statute that conflicts with

fundamental rights is not invalidated. If the Constitution of India, 1950, is amended so that

the disputed statute is per the fundamental rights, it can be made legitimate. Fundamental

rights are regarded as prospective under this theory. Thus, any pre-Constitutional law that

infringed basic rights would not be unlawful since the fundamental rights of the Constitution

of India, 1950 were not in existence at the time of the establishment of that law. As a result,

there have been doubts raised about whether this doctrine may be applied to post-

Constitutional laws as well.

Doctrine of Eclipse

It is a doctrinal notion of the Doctrine of Eclipse that fundamental rights should be viewed as

prospective. Part III of the Constitution prohibits any law from being enacted that conflicts

with fundamental rights. A shadow is considered to have been cast on the laws by relevant

fundamental rights. Only by amending the related fundamental right can the inconsistency of

the eclipsed law be eliminated. As a result, the legislation is once again legal and enforceable,

as the shadowing is eliminated However, the law that breaches basic human rights is still in a

stalemate state. Thus, it ceases to have any effect and can no longer be enforced. It does not

start as a void or a nullity.

Salient Features

 Applicability to Pre Constitutional Laws- The Doctrine can only be applied

to pre-constitutional laws that became effective after India's constitution was adopted

on January 26, 1950, because they were legal at the time of their enactment.

 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


 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 rights 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 Rights and Amendment - If there is an amendment to the relevant FR

in the future, it will automatically make the impugned law operative.

Origin & Evolution

Numerous existing laws might be challenged for violating fundamental rights after the Indian

Constitution was passed, and these laws could be challenged in the courts. Just as important

in the development of the notion of eclipse is judicial review. Supreme Court judges made

this legal notion official in the case of Bhikaji Narain Dhakras and Ors v. State of Madhya

Pradesh (1955), but it had been applied in principle in earlier decisions.

Among the first cases in which this notion can be traced is Keshav Menon v. State of

Bombay (1951). According to the Indian Press (Emergency Powers) Act, 1931, the appellant

was liable for a booklet he had written in 1949. This pamphlet, according to the appellant,

was protected by Article 19(1) of the UN Declaration on the Rights of Man and of the Citizen

to Free Expression (a). The Supreme Court argued that the pamphlet was unconstitutional

since the Indian Constitution did not exist at the time the brochure was written. As a result,

the appellant was unable to assert ownership of them. As a result of this decision, it was

established that the applicability of basic rights is only prospective and not retroactive.

Article 13(1) was deemed prospective rather than retroactive by the Court, in light of the

general rule that all statutes are meant to be applied prospectively unless otherwise stated. It

is impossible to presume that this article's language implies any form of retroactive

application. That is what the Supreme Court said when it ruled in Pannal Binaraj v. Union of

India (1957).

In Behram Khurshid Pesikaka, v. State of Bombay, the next major case, Article 13(1) and

pre-Constitutional regulations infringing on fundamental rights were discussed (1955).

Section 66(b) of the Bombay Prohibition Act, 1949, charged the appellant here. In this

section, we discussed the dangers of drunk driving. Because it violated Article 19's

fundamental rights, the applicant cited the 1951 decision of the State of Bombay and Anr v.

F.N. Balsara, where Section 13(b) of the Act was found unlawful as applied to the use of

alcoholic medicinal and toilet preparations. For Section 66(b), the appellant argued that

alcohol medicinal and toilet preparations should likewise be declared illegal.

However, the Supreme Court judges first found in favour of the Balsara case, stating that it

had not been repealed or changed. The majority ruling, however, stated that the clause had

been "notionally wiped" from the statute, which was used to determine the rights and

responsibilities of citizens. Balsara's decision was cited as a good defence to a charge of

alcoholic medicinal and toilet preparations under Section 66(b). An accusation of driving

while intoxicated must be proven by the prosecution, and the defence must prove the

opposite. The only exception to this rule is alcoholic medicinal medicines.


In this way, the idea of eclipse has clear applicability. Pre-constitutional laws that infringe

fundamental rights can be justified through constitutional amendments, while post-

constitutional legislation is exempt from this protection. This is because Article 13 places

varying weight on pre-and post-Constitutional laws. For pre-Constitutional laws, this concept

provides for the preservation of unconstitutional legislation by making it dormant until it can

be resurrected in the future under exceptional conditions.


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