Prepared by Rekha Khandelwal
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Doctrine of lifting the veil
The doctrine of eclipse
The judiciary is the guardian of the fundamental rights enshrined in Part III of the Constitution. It is the duty of the judiciary to protect the rights from the actions of the legislature and the executive where they violate these rights. There were many existing laws at the commencement of the Constitution. Some of which were in direct conflict with fundamental rights. So the Supreme Court introduced some principles or Doctrines to determine the validity of these laws. The Doctrine of eclips is one of them.
The doctrine of eclips is based on Article 13 (1) which states,
“All laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of Part III Fundamental Rightsof the Constitution.”
The doctrine of eclips is based on the principle that a law which violates Fundamental Rights enshrined in Part III of the constitution, is not nullity or void ab initio but becomes only unforceable, i:e remains in a moribund condition, it is not dead but over – shadowed by the fundamental rights becomes dormant for an infinite period of time until the inconsistency is removed from it.
The laws are not erased wholly from the statute book. They exist for all past transactions ie. for rights and liabilities that were acquired before the Constitution came into force and for the persons who have not been given fundamental rights by the Constitution, for example, non-citizens.
Cases related the doctrine of eclips
1. Keshav Madhav Menon v. State of Bombay, AIR 1951 SC 128 In the case
The petitioner was prosecuted under the provisions of the 1931 act, the Indian Press (Emergency Powers) Act, for publishing a pamphlet with no permission. When the Constitution came into force the case was still pending. Now there was a question before Court cocerning the prospective and retrospective nature of Article 13(1) and the word “void”.
Question- Whether the impugned Act was violative of Article 19(1) (a) and should be declared void?
The Court held that the Act is void only to the extent of the violation. And the word “void” used in Article 13 does not mean that statutes or provisions shall be repealed entirely.
Question- Can such a law which becomes unenforceable after the Constitution came into force be again revived and made effective by an amendment in the Constitution?
2. Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781.
Yes, however, that the actual genesis of this doctrine occurred in the case. In this case, the C. P. and Berar Motor Vehicles Amendment Act of 1947 was challenged for being violation of article 19(1) (g). This amendment act was a pre-constitutional law. Thus, the Doctrine of Eclipse was applied and the Act’s provisions were made inoperative. However, that in 1951,On the basis of the 1st Constitutional Amendment Act, Section 19 (1) (g) was amended. The eclipse was removed, making the law appropriate to apply against citizens and non-citizens. According to the court, “The effect of this amendment was to remove the shadow and to make the guilty act free from all guilt orinconsistence.”
Question- Does the doctrine of eclips apply to a post – constitutional law?
3. In Deep Chand v. State of U.P, AIR 1959 SC 648
“It was held by SC that a post – constitutional law made under article 13(2) which violates a fundamental right is nullity from its inception and a deceased law. It is void ab initio. The doctrine of eclipse does not apply to post – constitutional laws and therefore, a subsequent constitutional amendment cannot rescue it.”
The minority, however, that expressed the view, the doctrine of eclipse is applicable even to post – Constitution law.
4. In Mahendra Lal Jain v. State of U.P., AIR 1963 SC 1019,
“The supreme court approved the majority view expressed in Deep chand’s case and held that the doctrine of eclipse applies only to pre- Constitution law under article 13 (1 ) and not to post- Constitution law under article 13 (2). There is a clear distinction between a pre Constitution law and a post- Constitution law. The voidness of the pre – Constitution law and a post- Constitution law. The voidness of the pre -Constitution law is not from its inception but only from the date of the commencement of the Constitution. On the other hand the voidness of a post- Constitutional law is from its very Inception and such a law cannot therefore exist for any purpose.”
5. State of Gujarat v. Ambica Mills,AIR 1974 SC 1300
But in the case“The Supreme Court revised its view as expressed in Deep Chand and Mahendra Lal Jain’s cases and said that a post – Constitution law which is inconsistent with fundamental rights is not null or non-existent in all cases and for all purposes. The doctrine of absolute nullity is not a universal rule and there are many exceptions to it. A post- Constitution law which takes away or abridges the right conferred by Article 19 will be operative as regards to non-citizens because fundamental rights are not available to non- citizens. Such a law will become void or non – existent only against citizens because fundamental rights are conferred on them. The voidness in article 13 (2) can only mean void as against persons whose fundamental rights are taken away or abridged by law. Non-citizens cannot take advantage of the voidness of the law.”
“Accordingly, the court held that the Bombay Labour Welfare Fund Act, 1953 was valid in respect to non-citizens. The respondent, a company, had challenged the validity of the Act on the ground that its provisions violated the fundamental rights of citizens, employers and employees, and therefore, they were void under article 13(2) of the Constitution. It was held that even assuming that under article 19 a company was not a citizen it was entitled to move the High Court and seek a remedy for infringement of its ordinary right to property.
The provisions of the Bombay labour Welfare Fund Act, 1953 were not non- existent, but were valid laws enacted by a competent legislature in respect of non- citizens and the company could take the plea that its right to property was being taken or abridged without the authority of law.”
6. In Dulari Lodh v. IIIrd Additional District Judge, Kanpur,AIR 1984 SC 1260
The Supreme Court applied the doctrine of eclipse to post constitutional law even against citizens.
In the case the respondent – landlord filed a case for ejectment in 1971 and gained a decree for ejectment against the appellant – tenant. By virtue of the provisions of 1972 Act the case was transferred to the court of the Judge Small Causes, who tried the case and passed a decree in favour of the respondents in 1973. The tenant did not object to the jurisdiction nor did he prefer an appeal or revision against the judgement and the same became final.
The landlord filed execution petition but his attemt to get the decree executed was stalled sometimes by objection filed by tenant and sometimes by amendments in law and with the result that even after 13 years of litigation, the landlord was not able to get possession. This was because of the statutory amendment which made the decree inexecutable and was therefore lying dormant and ineffective. But by virtue of Amendment Act of 1976, section 9 of the U. P. Civil Laws (Amendment) Act of 1972 was made applicable with retrospective effect which was enacted to remove the injustice and to remedy Mischief caused to the decree – holder.Its object was to revive the decrees which had become inexecutable.
It was held that by virtue of the Amendment Act, 1976 the degree which was lying dormant and could not be executed became executable.Once the bar placed by the 1972 Act is removed by virtue of the doctrine of eclipse the decree will revive and become operative and executable.
 Keshav Madhav Menon v. State of Bombay, AIR 1951 SC 128
 Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781.
 Deep Chand v. State of U.P, AIR 1959 SC 648
 Mahendra Lal Jain v. State of U.P., AIR 1963 SC 1019
 State of Gujarat v. Ambica Mills,AIR 1974 SC 1300
 Dulari Lodh v. IIIrd Additional District Judge, Kanpur, AIR 1984 SC 1260