← The hardest concepts in Indian law
In one breath
Article 13 makes a law void to the extent that it conflicts with a fundamental right, and the courts then ask whether the whole law falls or only the offending part. A law made before the Constitution is eclipsed, not dead, so it revives if the conflict is removed, whereas a law made after is void from the start.
The picture
The cloud over the sun
A cloud passing in front of the sun does not destroy it. The sun is still there and its light returns when the cloud moves. A thing that has never been lit, like a lamp that was never installed, is in a different position, because it has nothing to return to.
The Court applies this to old laws. A statute passed before January 1950 that conflicts with a fundamental right becomes inoperative, so it is under an eclipse, but it remains on the books. If the Constitution is amended so that the right no longer applies to it, the statute revives without being passed again (Bhikaji Narain Dhakras). A law passed after the Constitution that contravenes a fundamental right is void from the beginning, so it is a stillborn law and cannot revive by later amendment, though the Court has allowed it to apply to people who were not entitled to the right.
Where the picture stops working
The cloud and the lamp make two kinds of law seem sharply different, whereas the Court has softened the difference in practice, and some statements in the cases treat all offending laws as void for the person who has the right. The metaphor also gives no help on severability, which is a separate question about how much of one law falls.
How it really works
- 1Find the fundamental right said to be infringed and the law said to infringe it.
- 2Decide when the law was made. Before the Constitution came into force, the law is eclipsed to the extent of the conflict. After, it is void to that extent.
- 3Ask whether the invalid part can be separated from the valid part. The test is whether the legislature would have enacted the valid part without the invalid.
- 4If the parts are so mixed that the valid part cannot stand alone, the whole law falls.
- 5If the cause of conflict is removed, such as by amendment, an eclipsed pre-Constitution law revives, while a post-Constitution void law does not.
Why people get it wrong
- Using eclipse for laws made after 1950. Only pre-Constitution laws are eclipsed, and later ones are void.
- Assuming the whole statute falls. The courts strike down only the offending part if the rest can work alone.
- Forgetting that the doctrine of severability rests on legislative intent, so it is not a mechanical cutting of words.
- Believing a void law is wiped from the record for all purposes. The Court can limit the effect, for example for past transactions.
A worked example
The facts are invented
A law made in 1930 says that members of a certain community must pay a special licence fee to run a business. After 1950 it is challenged as discriminatory. The Court holds that the fee conflicts with the right to equality, so the law is inoperative against any citizen who has the right.
Years later the Constitution is amended so that the right in question no longer applies to such laws. The 1930 law is revived without a fresh enactment, since it was only eclipsed. Suppose instead that a State had passed the same law after 1950. It would be void from the start, and a later amendment would not bring it back. Parliament or the State would have to pass it again.
Try it
A law made before the Constitution came into force conflicts with a fundamental right. What is the position of the law?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Keshav Madhav Menon v State of Bombay, AIR 1951 SC 128
- Bhikaji Narain Dhakras v State of Madhya Pradesh, AIR 1955 SC 781
- Deep Chand v State of Uttar Pradesh, AIR 1959 SC 648
- R M D Chamarbaugwalla v Union of India, AIR 1957 SC 628
Where to go next
Dictionary
More hard concepts in India law
- The basic structure doctrine (Constitutional law)
- Equality and arbitrariness under Article 14 (Constitutional law)
- The golden triangle of Articles 14, 19 and 21 (Constitutional law)
- Pith and substance and the three lists (Constitutional law)
- Reasonable restrictions on free speech (Constitutional law)
- Public interest litigation and standing (Constitutional law)
- Essential religious practices under Articles 25 and 26 (Constitutional law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. India has a written Constitution, central and State legislation, and a unified court system under the Supreme Court. Each page states the usual formulation of the rule and names landmark decisions, with the citations as they are usually given in the Supreme Court Cases and All India Reporter series. The criminal codes and the law of evidence were replaced by new statutes, so the pages on criminal law state the doctrine and the decisions and mostly leave out section numbers; check the current text of any statute you rely on. Personal laws differ by community. This is a study aid, not legal advice, and an Indian advocate should check anything you need to rely on.