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Doctrine of Eclipse and Severability

 

DOCTRINE OF ECLIPSE:-

The doctrine of Eclipse and Severability:- The doctrine of eclipse (to hide) is based on the principle that a law which violates fundamental right is nullity void ab initio but becomes only unenforceable. Such laws are not wiped out entirely from the statute book; they exist for all past transactions. It should be made clear in this respect that the doctrine of eclipse is applicable in case of pre-constitutional laws and not to post-constitutional laws.

 

The word “void” used in clause (1)of Article 13 (about the law existing at the time of constitution) is generally taken to mean only un-enforceable and not a total nullity but the same word occurring in Article 13 (2) (about future laws) has been taken to mean that the law concerned is void-ab-initio and a total nullity.

Doctrine of Eclipse and Severability

It is so because in case of existing law if no amendment of the relevant provision of the fundamental right affected by the impugned law, the constitutional bar is removed and the laws which become void on the ground of inconsistency with a fundamental right at the commencement of the constitution will again become valid.

 

It is known as the Doctrine of Eclipse. The doctrine of eclipse means that a valid pre-constitution law which became void either in whole or in part becomes inoperative so long as its inconsistency with Part III of the constitution exists.

 

Such a law. however, does disappear from the statute book as it existed before the date of the constitution is recognized. But if in disobedience of the mandate any such law, which is inconsistent with the Fundamental Rights or the constitution, is passed after the constitution, it is a dead or stillborn law and is to be ignored for all purposes.



ORIGIN-:

The doctrine of Eclipse was considered by the Supreme Court in the case of Bhikhaji Narain v. State of M.P. A.I.R. 1955 S.C. 78, and it was laid down that an existing (pre-constitution), inconsistent law is not dead and can be revived by any subsequent amendment of the constitution.

 

But no right and obligations can be based on that from the date of the constitution till the date of its amendment unless the amendment is expressly made retrospective. Case Deep Chand V. State of U.P (A.I.R-1959) The Supreme Court held that the doctrine of eclipse does not apply to post constitution laws.



DOCTRINE OF SEVERABILITY:-

The doctrine of Eclipse and Severability:- The doctrine of severability (to separate) provides that if an enactment cannot be saved by construing if consistent with its constitutionality, it may be seen whether it can be partly saved.

 

If the law, either the law existing at the time of the commencement of the Constitution or the law which came into force, later on, is inconsistent with the fundamental rights or violates them, then, such a law shall be declared void by the court.

 

Doctrine of Eclipse and Severability

The doctrine of severability is applicable only if it is possible to separate the legal from the unconstitutional portion of the provision. If such separation is not possible entire provision has to be struck down as unconstitutional.

 

The question of severability depends not on the interpretation of the constitution but on the construction of the impugned enactment. The history of the legislation is admissible for ascertaining the legislative intent when the question is one of severability but the statement of objects and reasons is not admissible for the purpose of determining severability.

 

So the doctrine of severability or separability implies that it is not the whole act that should be held invalid or inoperative but only such provisions of it as being violative of the fundamental rights, provided, of course, that the part which violates the fundamental rights is separable from that which does not violate them and if they are not severable, the whole act will be void.

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There are many important cases that have discussed the doctrine of severability and eclipse. Some of them are:-

In the case of kihoto hollohan vs zachillhu and others (AIR-1992).

It was said that the doctrine of severability envisages. That if it is possible to construe a statute so that its validity can be sustained against a constitutional attack. It should be construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.

In the case of D.S Nakara & others vs Union of India, (AIR -1983).

The court said that whenever a classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification or by striking down words of limitation. The resultant effect may be of enlarging the class. In such a situation, the court can strike down the words of limitation in an enactment. That is what is called reading down the measure.Doctrine of Eclipse and Severability

 

In the case of A.K.Gopalan vs State of Madras,(AIR-1950).

The principles of severability were also discussed. Where in the court observed that what we have to see is, whether the omission of in impugned portion of the act will change the nature of the structure or the object of the legislation“.



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