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The Doctrine of Eclipse in India - Divjot

Updated: Nov 23, 2021

The doctrine of eclipse is often used with Article 13 of the Constitution of India, it refers to the interpretation that if a law inconsistent with the Fundamental Rights does not die completely but, is overshadowed or covered for the time being.

Article 13 deals with laws inconsistent with Fundamental Rights.Clause(1) of the provision states,

“All pre-Constitution and existing laws which were in force immediately before the commencement of the Constitution shall be void to the extent to which they are inconsistent with Fundamental Rights from the date of the commencement of Constitution.”


Article 13 provides for the ‘judicial review’ of all legislations in India. This provision has no retrospective effect ,which means that all the inconsistent existing laws can be considered void after the commencement of the Constitution and are not void ab initio. The applicability is restricted to acts, transactions,etc., of the past.

Doctrine of Eclipse

In layman’s language, the doctrine aims to validate the void laws and works on the principle that laws that violate fundamental rights do not become null and void or void ab initio, rather they remain in ‘sleeping-mode’ until made enforceable.The inconsistency of the laws can only be removed by amendments to the corresponding fundamental rights.

In Bhikaji Narain Dhakras vs State of M.P.(1955), it was observed by the court that the doctrine should be applied to pre-constitution law only. All the laws, existing or future that are inconsistent with the provisions of Part III of the Constitution are void “to the extent of such inconsistency”. The pupose it to determine the rights of the people that have not been entitled for the same.

Applicability in the post-Constitution era

Article 13 Clause(2) states - “The State shall not make any law which takes away or abridges the fundamental rights,and any law in contravention of fundamental laws shall to the extent of contravention,be void.”

Clause(2) differs from clause(1) as it deals with future laws and makes the inconsistent laws void ab initio along with a delay in convictions made.However, the invalidity of these laws need to be declared by the court.

It was held in State of Gujarat vs Shri Ambica Mills Ltd.(1974), ‘a post-Constitution law which is inconsistent with fundamental rights is not nullity or non-existent in all cases and for all purposes.’Hence, the doctrine of eclipse is applied to both pre and post Constitution law as the meaning of the word ‘void’remains the same under both clauses!

In Jagannath vs Authorized Officer,Land reform (1971) , the court concluded that the advantage of voidness of the law for the reason that it contravenes the fundamental rights of citizens,cannot be sought by non-citizens.It cannot be claimed there is no law,since there is no contravention.

In Behram Khurshid Pesikaka vs State of Bombay(1954), it was clarified that if not the whole law, part of the law can be unconstitutional.

Section 309 of the Indian Penal Code

The court drew a parallel between Articles 19 and 21 in Rathinam vs Union of India,that challenged the criminalising of attempt to suicideand later reversed the judgment in Gian Kaur vs State of Punjab.

Article 368 of the Indian Constitution

After I.C.Golaknath vs State of Punjab, the Legislature was rerstricted of its powers and could amend the fundamental rights. This was later revised in the landmark judgment of Kesavanda Bharti vs Union of India, that the fundamental rights could be revise without making any changes in the basic structure of the Constitution.Hence, the Article 368 was eclipsed.


It is evident from all the above case laws that the interpretation and application of the Doctrine of Eclipse was never fixed and kept evolving since. Time and again clarification has been made as to what is ‘void’. The extent of application stretches to not only pre and post Constitutional laws but, future laws too.

This is a speedy technique that helps correlate instances and also,activates when required.

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