“Judicial Review” is defined as the interposition of judicial restraint on the legislative and executive organs of the Government.! It is the “overseeing by the judiciary of the exercise of powers by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution.” The concept has its origins in the theory of limited Government and the theory of two laws - the ordinary and the Supreme (i.e., the Constitution) - which entails that any act of the ordinary law-making bodies that contravenes the provisions of the Supreme Law must be void, and there must be some organ possessing the power or authority to pronounce such legislative acts void.
With the adoption of a written Constitution and the incorporation of Part III conferring Fundamental Rights therein, it was inevitable that the validity of all laws in India would be tested on the touchstone of the Constitution. Nevertheless, the Constitution-makers included an explicit guarantee of the justiciability of fundamental rights in Article 13, which has been invoked on numerous occasions for declaring laws contravening them void. Courts have evolved various doctrines like the doctrines of severability, prospective overruling, and acquiescence, for the purposes of effectuating this Article. The Doctrine of Eclipse (“the Doctrine”) is one such principle, based on the premise that fundamental rights are prospective in nature. As a result of its operation, “an existing law inconsistent with a fundamental right, though it becomes inoperative from the date of commencement of the Constitution, is not dead altogether.” Hence, in essence, the Doctrine seeks to address the following quandary: If a law is declared null and void for infringing on a fundamental right, and then that fundamental right is itself amended such that the law is purged of any inconsistency with it, does the law necessarily have to be reenacted afresh, or can it revive automatically from the date of the amendment? In other words, what is the precise nature of the operation of the Doctrine in the face of the general rule that a Statute void for unconstitutionality is non-est and “notionally obliterated” from the Statute Book?
Inherent in the application of the Doctrine to such questions is the predicament of conflicting priorities. What is to be determined here is whether, for the purpose of avoiding the administrative difficulties and expenditure involved in re-enacting a law, a law which was held void on the very sensitive and potent ground of violation of fundamental rights should, under special circumstances be permitted to revive automatically. This also raises some profound questions about legislative competence and the interference of courts in law making. An extremely vital aspect of the Doctrine - which, in India, has thus far been largely overlooked by legal theorists and practitioners alike - is its crucial role in the federal framework. A survey of the principal federations in the Anglo-American world shows that the Doctrine has been used primarily in cases where the enacting legislature undoubtedly had the power to enact a law, but the law was rendered in operative because of supervening impossibilities, arising in the form of other incompatible laws enacted by legislatures having superior powers to enact such laws. A complete demarcation of powers between the federal and state spheres is neither feasible nor fesirable in a federal polity.
In India, the Doctrine of Eclipse has been referred to, most frequently, in cases involving alleged violations of fundamental rights. Questions regarding the retrospectivity of these rights and the import of the word “void” in Article 13(1) of the Constitution, came up for deliberation in the leading case of Keshavan Madhava Menon v. State of Bombay, A.I.R. 1951 S.C. 128, wherein a prosecution proceeding was initiated against the appellant under the Indian Press (Emergency Powers) Act, 1931, in respect of a pamphlet published in 1949. The present Constitution came into force during the pendency of the proceedings. The appellant pleaded that the impugned section of the 1931 Act was in contravention of Article 19(1)(a) of the Constitution, and by virtue of Article 13(1), was void. Hence, it was argued that the proceedings against him could not be continued. This case raised several challenging issues with respect to the Doctrine, as analysed below.
It is now well settled that the Constitution has no retrospective effect. However, one of the basic questions related to the origin of the Doctrine of Eclipse that was raised in Kesavananda Bharati Case, was whether fundamental rights are retrospective in operation. Article 13(1) provides that all pre-Constitutional laws, in so far as they are inconsistent with fundamental rights, are void. If fundamental rights are retrospective, then all pre-Constitutional laws inconsistent with fundamental rights must be void ab initio. On this point, in Keshavanand, both Das and Mahajan, JJ., maintained that fundamental rights, including the freedom of speech and expression, were granted for the first time by the Constitution and that in September 1949, when proceedings were initiated, the appellant did not enjoy these rights. Hence, it was established that, as fundamental rights became operative only on, and from the date of the Constitution coming into force, the question of inconsistency of the existing laws with those rights must necessarily arise only on and from such date.
Turning specifically to Article 13(1), the Court further held that every statute is prima facie prospective unless it is expressly or by necessary implication made retrospective. According to him, there was nothing in the language of Article 13(1), to suggest that there was an intention to give it retrospective operation. In fact, the Court was of the opinion that the language clearly points the other way.
It was therefore held that Article 13(1) can have no retrospective effect, but is wholly prospective in operation.“ This interpretation has been upheld in subsequent cases.'
The prospective nature of Article 13(1), and the limited connotation accorded to the word “void” in Keshavan, which was expounded by Das, J. in Behram, necessitated the enunciation of the Doctrine of Eclipse in the leading case of Bhikaji Narain Dhakras v. State of Madhya Pradesh, AI.R. 1955 S.C. 781. In this case, the impugned provision allowed for the creation of a Government monopoly in the private transport business. After the coming into force of the Constitution, this provision became void for violating Article 19(1)(g) of the Constitution. However, Article 19(6) was amended in 1951, so as to permit State monopoly in business.
It was argued on behalf of the petitioners that the impugned Act, being void under Article 13(1), was dead and could not be revived by any subsequent amendment of the Constitution, but had to be re-enacted. This contention was rejected by a unanimous decision of the Supreme Court, which laid down that after the amendment of Article 19(6) in 1951, the constitutional impediment was removed. The Act, therefore, ceased to be unconstitutional, and became revivified and enforceable.
The crux of the decision was the observation that an existing law inconsistent with a fundamental right, though inoperative from the date of commencement of the Constitution, is not dead altogether. According to some authors, it “is a good law if a question arises for determination of rights and obligations incurred before the commencement of the Constitution, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution.” In this context, Das, C.J., held:
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.
He reiterated that such laws remained in force qua non-citizens, and it was only against the citizens that they remained in a dormant or moribund condition. This case was thus the foundation of the Doctrine, which has since been the subject of judicial contemplation in numerous decisions.
Three questions must be answered, in order to gauge the applicability of the Doctrine to post-Constitutional laws. First, can a post-Constitutional law be revived by a subsequent Constitutional amendment removing the Constitutional bar to its enforceability? Second, if a post Constitutional law violates rights conferred on citizens alone, (and thus becomes void qua them), does it remain valid and operative qua non-citizens like foreigners and companies? Finally, can amending the Act in question so as to remove the blemish revive the law in question, or will it have to be re-enacted as a whole?
In Saghir Ahmed v. State of U.P.; A.I.R. 1954 S.C.728, a Constitution Bench of the Apex Court unanimously stated that the Doctrine could not applied to the impugned post Constitutional law. A legislation that contravene Article 19(1)(g) and was not protected by clause (6) of the Article, when it was enacted after the commencement of the Constitution, could not be validated even by subsequent Constitutional amendment.
However, the following observation of Das, C.J. in Bhikaji, has generated much perplexity on the issue:
But apart from this distinction between pre-Constitution and post-Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of 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.
In Deep Chand v. State of U.P., A.I.R. 1959 S.C. 648, it was held that there is a clear distinction between the two clauses of Article 13. Under clause (1) a pre-Constitutional law subsists except to the extent of its inconsistency with the provisions of Part III, whereas as per clause (2), no post-Constitutional law can be made contravening the provisions of Part III and therefore the law to that extent, though made, is a nullity from its inception.Mahendra Lal Jain v. State of U.P., A.I.R. 1963 S.C. 1019, is the most authoritative decision for the impossibility of reviving post-Constitutional laws by a Constitutional amendment. The Court based its finding on the two grounds. First, the language and scope of Article 13(1) and 13(2) are different. Clause (1) clearly recognizes the existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by the Doctrine. Clause (2) on the other hand begins with an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. The legislative power of Parliament and State Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore, subject to Article 13(2). Second, “contravention” takes place only once the law is made. This is because the contravention is of the prohibition to make any law, which takes away or abridges the fundamental rights. It is no argument to say that simply because the Amendment removes any subsequent scope for contravention, the law is no longer in conflict with the Constitution.
However, the scope of the principles established above stands drastically curtailed in view of the Supreme Court decision in State of Gujarat v. Shree Ambica Mills, A.I.R. 1974 S.C. 1300, wherein Matthew, J. held that like a pre-Constitutional law, a post Constitutional law contravening a fundamental right could also be valid in relation to those, whose rights were not infringed upon. For instance, when a post-Constitutional law violates a fundamental right like Article 19 which is granted to citizens alone, it would remain valid in relation to non-citizens. Thus the term “void” in both the clauses of Article 13 makes a law only relatively void, and not absolutely void.
From this arises the final question: When a post-Constitutional law is held inconsistent with a fundamental right, can it be revived by amending the Act in question so as to remove the blemish, or will it have to be re-enacted as a whole? The Delhi High Court in P.L. Mehra v. D.R. Khanna, A.I.R. 1971 Del. 1, has held that the legislation will have to be re-enacted and that it cannot be revived by mere amendment. This view appears to the author to emanate logically from the position adopted by the Supreme Court in treating such a law as void ab initio. There is, therefore, no need to apply the Doctrine of Eclipse to post-Constitutional laws, as discussed above.
There is no direct Supreme Court ruling on this point. The closest authority on this issue is Shama Rao v. State of Maharashtra, A.I.R. 1967 S.C. 480, wherein an Act was challenged on the ground of excessive delegation, and pending the decision, the Legislature passed an Amendment Act seeking to remove the defect. The Supreme Court ruled by a majority that when an Act suffers from excessive delegation, it is stillborn and void ab initio. It cannot be revived by an amending Act seeking to remove the vice, and must be re-enacted as a whole. It is submitted that this ruling supports the proposition that an Act held invalid under Article 13(2) would not be revived merely by amending it, but would have to be re-enacted. Hence, we may safely infer that Ambica Mills does not destroy the force of the judicial pronouncements in Deep Chand and Mahindra Jaini, but merely limits the scope of their operation, and that the Doctrine, as of now, cannot be extended to post-Constitutional laws.