The Indian laws can be classified into two types which is: 1. Pre-constitutional laws 2. Post-constitutional laws
Our constitution came into being on 26th January 1950, the laws which were made before the coming up of the constitution was classified as the Pre - constitutional laws these were basically made during the colonial period and are there into existence till now.
It talks about the validation of void laws and is based on the principle that a law that violates fundamental rights is not nullity or void ab initio which is that from the very existence of the law it cannot be said as invalid or wrong but becomes only unenforceable and not nonexisting. It is as sense seems to be overshadowed like the earth gets overshadowed by the moon during the eclipse. Similarly, the law which is pre-constitutional is over-shadowed or eclipsed by the fundamental rights and remains dormant, but it is not dead.
BHIKAJI NARAIN DHAKRAS V STATE OF M.P.[1]
FACTS :
1. The provision of Berar Motor Vehicles Act 1947 authorized the State government to take over the entire motor transport business in the province which led to the exclusion of motor transport operators.
2. This provision, though valid when enacted, became void on the coming into force of the Constitution in 1950 as they violated Art 19(1 )(g) of the Constitution.
3. However, in 1951, by the Constitution (First Amendment) Act, clause (6) of Art. 19 was amended so as to authorize the government to monopolize any business.
4. Held that the effect of the amendment was to remove the shadow and to make the impugned Act free from all blemish or infirmity. Thus making it enforceable.
RATIO :
It was observed by the court that the doctrine of eclipse is applied in relation to a pre-Constitution law, which was valid when it was enacted. Subsequently, when the Constitution came into force a shadow falls on it because it is inconsistent with the Constitution. The Act is eclipsed. When the shadow is removed (the fundamental right was amended to remove the conflict between the law and the right) the pre-Constitution law becomes fully applicable and is free from infirmity. However, between the 26-1-1950 (when the Constitution came into force) and the 18-6-1951 (when the First Amendment was made), the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under Art. 19(1 )(g)
All laws, existing or future, which are inconsistent with the provisions of part III of Constitution, are, by the express provisions of Art. 13, rendered void "to the extent of such inconsistency." Such laws exist for all past transactions, for rights and liabilities incurred before the Constitution came into force, and for the determination of rights of persons who haven't been given fundamental rights by the Constitution e.g. noncitizens.
It is only as against the citizens that they remained in a dormant or moribund condition.
After 18-6-1951, the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non-citizens.
Thus, the petitioner's contention that the law having become void for unconstitutionality was dead and could not be vitalized by a subsequent amendment of the Constitution removing the constitutional objection unless it was re-enacted, could not be sustained in view of the aforesaid position of the law.
Does the doctrine of eclipse apply to post-Constitution Laws?
Article 13 (1) deals with pre-Constitution or existing laws.
Article 13 (2) deals with post-Constitution or future laws
As distinguished from clause (1), clause (2) makes the inconsistent laws void ab initio (void from their inception or stillborn law), and even convictions made under such laws shall have to be set aside.
Also, such laws cannot be revived by the subsequent amendment of the Constitution. It is to be noted that in both clauses (1) and (2) of Art. 13, a declaration by the court of their invalidity will be necessary, to make the laws invalid.
STATE OF GUJRAT V SHRI AMBICA MILLS LTD. [2]
FACTS :
1. In this case, held that a post-Constitution law which is inconsistent with fundamental rights is not nullity or non-existent in all cases and for all purposes.
2. After the Ambica Mills judgment, the doctrine of eclipse mention the views expressed by the Supreme Court applies to both pre- and post-Constitution laws.
3. In this case, the provisions of the Bombay Labour Welfare Fund Act were challenged by the Ambica Mills on the ground that the impugned provisions (which provided for the payment of unpaid accumulations to the employees) infringe its fundamental right to property [Art 19(l)(f)] the Act being a post- Constitution law.
4. The High Court favored Ambica Mills holding impugned provisions unconstitutional and void The Supreme Court, however, took a contrary view.
RATIO :
The Apex Court held that just as a pre-Constitution law abridging or taking away fundamental rights remained after the Constitution came into force as respect non-citizens' as it was not inconsistent with their fundamental rights, so also a post-Constitution law which is inconsistent with fundamental rights is not nullity or non-existent in all cases and for all purposes. In the present case, Ambica Mills, being a company, was a non-citizen for the purposes of Art. 19. Thus, the Bombay Labour Welfare Fund Act was valid with respect to non-citizens.
[1] AIR 1955 SC 781
[2] AIR 1974 SC 1300
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