CONSTITUTION AND DOCTRINE-
Emanates directly from Article 13(1) of the Constitution that is part of the FR & states,
(1) 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.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.
SALIENT FEATURES /ELEMENTS
•It should be Pre-constitutional law cases
•Not applicable to post-constitutional laws, as they are invalid since their inception and cannot be validated even by any corresponding amendment.
•Must be in conflict with fundamental right
•The law is not null or void ab initio, but only inoperative. The inconsistency/conflict can be removed by constitutional amendment, making the impugned law operative.
EVOLUTION OF THE DOCTRINE OF ECLIPSE
•Judiciary is the guardian of rights provided for in the Constitution. •Judiciary should restrain the actions of the Legislature and the Executive where they are infringing upon these rights. •There were several existing laws at the time when the Constitution was adopted, some of which were in direct conflict with fundamental rights. •To determine the validity of these laws the Supreme Court came up with some doctrines, like the Doctrine of Eclipse.
Keshavan Madhavan Menon v. State of Bombay 1951 S.C.R. 228
Bhikaji And Others vs State of M.P., AIR 1955 S.C. 781
SHANKARI PRASAD CASE (1951)
KESAVANANDA BHARATI CASE (1973)
THE PRE AND POST-CONSTITUTIONAL LAWS
The doctrine of eclipse does not apply to post-constitutional laws.
DEEP CHAND V. STATE OF U.P.- The SC held that post-constitutional law made under Article 13(2) which contravenes a fundamental right is nullity from its inception and a still-born law. It is void ab intio.
STATE OF GUJRAT V AMBICA MILLS- The SC modified the above view and stated that a post constitutional law which is inconsistent with the fundamental rights is not nullity or non-existent in all cases and for all purposes.
EXCEPTION TO POST CONSTITUTIONAL LAW
A post-constitution law which infringes right conferred by Article 19 operated as regards to non-citizens as fundamental rights not available to non-citizens.
Such a law will become void or non-existent only against citizens because fundamental rights are available only for citizens.
•fundamental rights as prospective in nature.
•pre-constitutional law inconsistent with the fundamental rights is not a nullity or void ab initio but only remains unenforceable , in dormant state.
•exist for all past transactions i.e., for rights and liabilities that were acquired before the Constitution came into being.
•applicable to individuals who have not been given fundamental rights, for example, non-citizens. •impugned law remains hidden behind the fundamental rights and becomes operative again if and when the FR it is inconsistent with is amended