The doctrine of Eclipse and Severability in Indian constitution – India 2021

The doctrine of eclipse and severability: The Eclipse (hidden) doctrine is based on the principle that a law that violates a fundamental right must nullify the beginning, but only in order to become inapplicable. Such laws have not been completely removed from statutes; exists for all past transactions, in this regard it should be clarified that the doctrine of the eclipse applies in the case of pre-constitutional law and not post-constitutional law.

The word “void” used in clause (1) of Article 13

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.

It is so because in the 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 called the Doctrine of Eclipse. The doctrine of eclipse way that a legitimate pre-constitution regulation that have become void both in complete or in component turns into inoperative as long as its inconsistency with Part III of the constitution exists.

Such a regulation. however, does disappear from the statute book because it existed earlier than the date of the charter is recognized. But if in disobedience of the mandate this sort of regulation, that is inconsistent with the Fundamental Rights or the charter, is exceeded after the constitution, it’s far a useless or stillborn regulation and is to be overlooked for all purposes.


ORIGIN:

The Eclipse Doctrine was reviewed by the Supreme Court in Bhikhaji Narain v. M.P.A.I State.R. 1955 S.C. 78, and it was found that the existing (pre-constitutional) law was not dead yet and could be reinstated by any subsequent constitutional amendments.

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) states that if a ruling cannot be preserved by interpretation, if it is consistent with its constitutionality, it can be seen if it can be partially preserved.

If a law, whether it is a law that came into force from the moment the Constitution came into force, or a law that came into force after that, is incompatible or violates fundamental rights, this law will be declared invalid ​by the Court.

The doctrine of severability/separation applies only if the legal part can be separated from the unconstitutional part of the provision; if it cannot be divided, the whole provision should be overturned as unconstitutional.

The issue of severability does not depend on the interpretation of the constitution, but on the formulation of the law of the dispute. The history of law is acceptable for determining legislative intent when it comes to separation, but the statements of objects and causes is not acceptable. to determine divisibility.

Thus, the doctrine of severability or separation implies that not all actions should be declared invalid, but only those provisions that violate fundamental rights, provided, of course, that the part that violates fundamental rights will be severed. that does not violate them, and if they are inseparable, the whole action is invalid.


Important case laws of this Doctrine.

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 is argued that the doctrine of separability holds that if a statute can be explained so that its validity can be maintained against a constitutional attack, it needs to be explained and that when part of the statute is in effect and part is invalid. , the real part must be separated from the invalid part.

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

The Court stated that as long as the classification is found to be inadmissible and the remedy can be maintained by removing the unconstitutional part of the classification or restrictive words, this could be an extension of the classification. the court can override a limited number of words in an enactment. This is what is called reading down the measures.

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

The principles of divisibility were also discussed. The court noted that we must see if the omission of the disputed part of the act does not change the nature of the structure or object of the law. ”

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