Doctrine of Eclipse under Article 13: Modified Application in Post-Constitutional Law

Authored by Priyam Mitra, a 3rd-year law student pursuing B.A., LLB at National Law School of India University (NLSIU), Bengaluru

Constitution of India

Introduction

[T]he application of the doctrine of eclipse […] arises from the inherent difference between Art. 13 (1) and Art. 13 (2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post- Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being still born-there will be no scope for the application of the doctrine of eclipse.

- Justice Vikram Nath (in C.B.I. v R.R. Kishore, 2023)

It has been an established principle of law, as recognised through a rich history of jurisprudence, that the doctrine of eclipse, as propounded in the case of Bhikaji Narain Dhakras v. State of Madhya Pradesh, applies to pre-constitutional laws declared invalid by the court for infringing the Fundamental Rights contained in Part III of the Indian Constitution.

What this papiece per argues is that while there is an ambiguity on the question of the application of the doctrine of eclipse to post-constitutional laws, through an analysis of the second actor theory and prospective overruling (Section II), the paper concludes with the claim of an observable similar effect to that of the doctrine of eclipse even in the case of post-constitutional laws and reconsiders the association of unconstitutional post-constitutional statutes as “still-born” or “non-est” (Section III). 

Doctrine of Eclipse: What and Why?

The doctrine of eclipse is a judicial invention necessitated by the purpose of ensuring stability and order with respect to the actions done under pre-constitutional laws, which, after the commencement of the Constitution, became inconsistent with any fundamental right under Part III. This is best evidenced by the court's decision in Bhikaji and the fact scenario presented therein. A pre-constitutional law here established a governmental monopoly in the transport business. After the Constitution came into force in 1950, the provision became “void” for infringing Article 19 (1) (g). The provision was amended in 1951, and the court was tasked with deciding whether the previously impugned law would now need to be re-enacted or whether the 1951 Constitutional amendment would revive it.

Since it was decided in the case of Keshavan Madhava Menon v. State of Bombay that Fundamental Rights conferred by the Constitution were not retrospective in their application, Chief Justice Das held that the law before the commencement of the Constitution was valid, but became “eclipsed for the time being”. The amendment later removed the “shadow” and made the Act in question free from all inconsistencies. The primary reasoning behind this holding is that these laws were valid before the commencement of the Constitution and hence were only rendered inoperative and unenforceable by the courts from the date that the Constitution came into force. The statutes still existed on the “statute books”, as it were, they did not “die”, and therefore did not need re-enactment for enforcement when the “shadow” was lifted. The effect on 'pre-constitutional transactions’ validity then is that it is not affected since fundamental rights were not applicable then, and the law was perfectly in force.

The outline of the basic process followed in a case where the doctrine of eclipse is applied can be summarised as follows:

1. The Act in question was valid once, and the transactions made following that were deemed valid.

2. The court declares the law to be unenforceable from a particular date prospectively (26^th Jan 1950 in this case);

3. There are legislative actions (through constitutional amendments commonly) made, which have the purpose of removing any inconsistencies with fundamental rights; and,

4. The shadow over the impugned statute is lifted, and the law is enforceable again.

The Second Actor Theory and Prospective Overruling

Several scholars and jurists have remarked how, in the face of the term “void” in article 13(2), both India and the United States require the litigant to "stand" before the court for the law to be declared as void. This has led to the notion among certain scholars (including Professor Forsyth) that the statute in question exists in the statute book and is not “non-est” de facto since the subjects rely on it before the issue is brought to court. Thus, scholars such as Forsyth suggest that “the theory of the second actor” must be imported jurisprudentially because the theory assuages concerns about economic and social chaos that may result if a statute is declared void retrospectively (as is the case in India with respect to infringements of fundamental rights).

Arvind Datar examines the importance of this doctrine in India and argues that there needs to be a clear pronouncement of the same by a constitutional bench of the Supreme Court. He argues that such a doctrine is necessary in certain cases for public policy reasons, namely, to reduce confusion and maintain stability. He argues for a clear rationale that lays down the parameters of this doctrine's application because courts have sporadically applied similar doctrines in different cases, each bench stopping short of conclusively stating their application.

The judicial invention of “prospective overruling” can, in some cases, bring Article 13(1) (pre-constitutional laws) and 13(2) (post-constitutional laws) into conformity with each other insofar as the protection of the “second actors” is concerned. While past transactions effected under pre-constitutional laws later declared void are protected (since the law was valid at the time these transactions took place), post-constitutional laws are held to be void ab initio. Subsequent acts performed under them are not afforded protection in ordinary cases. Prospective overruling has been suggested to be used as a middle ground between the protection of “reliance interests of second actors” and an originalist interpretation of the Constitution. Why prospective overruling is hailed as a middle ground is because it simultaneously ensures that while Article 13 is interpreted in the correct way with respect to post-constitutional laws in routine cases (the originalist position), past transactions are protected with respect to second actors for the sake of practicality in exceptional cases.

The Supreme Court in ​I.C. Golak Nath v. State of Punjab developed the doctrine of prospective overruling for exceptional circumstances where it would be wise for the court to uphold the validity of “past vested rights” and other reliance interests. Article 142 of the Indian Constitution confers upon the Supreme Court the power to fashion its relief in the matter it finds most appropriate for achieving “complete justice”, and this by implication permits the Supreme Court to prospectively overrule a case or a statute for larger public interest; the only limitation being the considerations of reason, restraint, and injustice.

While Golak Nath was concerned with the prospect of overruling a prior court decision, subsequent cases have extended this principle to the determination of the constitutionality of statutory provisions as well. Since the Court has been given broad powers and no real guardrails have been posited, it is relevant to note some of the reasons given by the Court in doing so: avoid disruption, give time to institutions to make required change; the impugned provision had been in effect for a “considerable duration”; among others.

In Somaiya Organics (India) Ltd. v. State of Uttar Pradesh, the court made an interesting remark that indicates the need for courts to develop the doctrine of prospective overruling further. Justice Ruma Pal stated that a peculiar paradox is evident in the court's application of the doctrine. If the holding is in the claimant’s favour and the impugned provision is prospectively overruled, then the claimant is deprived of the relief claimed because of the past transactions being held as valid. Since the doctrine has been sparingly used in India, one may look at the development of the doctrine in other jurisdictions. Judge Koopmans characterises the form of prospective overruling observed in the aforementioned cases as “pure prospectivity”. He uses an example from a case decided by the European Court of Justice to outline a new form of prospective overruling, wherein. At the same time, the court does not invalidate all past transactions; it grants relief to all litigants whose cases were pending at the time of the decision. While the import of this new form as it is to India is not suggested, what this discussion leads to is a definite reconsideration of the doctrine to clarify the scope and application of the doctrine to give effect to the “second actors theory”.

Conclusion

The previous sections, combined with a detailed account of political reactions to declarations of unconstitutionality (amending the Fundamental Right or inserting the impugned law into the Ninth Schedule) as discussed by Chintan Chandrachud (here), present an account of the application of the doctrine of eclipse to post-constitutional laws in specific scenarios. I call this the “modified” form of the doctrine of eclipse.

The fictional scenario I propose is one in which a law (for example, a taxation law) is first adjudged by a court to infringe fundamental rights (e.g., Article 14). The Supreme Court, however, applies the doctrine of prospective overruling, since retrospective invalidation of secondary acts would entail substantial compensation claims and result in losses for the state and the public at large. The state retaliates by adopting a constitutional amendment that revises the infringed article while preserving the basic structure. Since there was a savings clause in the amendment, contravention of fundamental rights is not possible now, and the statute is “revived” and is enforceable now.

The outline of the process of the doctrine of eclipse as laid out in Section I corresponds perfectly to the scenario presented above. While post-constitutional laws are deemed void ab initio by courts, the scenario given above suggests that these varied concepts could be applied simultaneously, with the same effect as the doctrine of eclipse in pre-constitutional law. To say that the statute was void ab initio or non est or stillborn is a contestable position to hold, especially in the context of these varied political responses.  Applying the concept of the relative void, it can be said that all that the courts do while declaring a post-constitutional statute to be unconstitutional is cast a “shadow” over its existence. The difference is that the conditions required to lift this shadow are quite different from those used in the simpler methods employed in the case of pre-constitutional laws.