AMBICA MILLS CASE1: A CRITICAL REAPPRAISAL OF SCOPE AND

APPLICATION OF DOCTRINE OF ECLIPSE?


Jitendra Soni

Constitution is the “will” of the people whereas statutory laws are the creation of legislators
who are the elected representatives of the people. Where the will of the legislature – declared in
statutes – stand in opposition to that of the people – declared in the Constitution – the will of the
people must prevail.2

I] INTRODUCTION

In giving to ourselves the Constitution, „We the People‟ have reserved the fundamental freedoms
to ourselves. 3 This reservation was incorporated by framers of our Constitution in Article 13.
This article is not only the source of the protection of fundamental rights, but also the expression
of reservation. 4 This article ensures that the validity of all laws would be tested on the touch
stone of the Constitution. Nevertheless, it provides that all laws made before the coming into
force of this Constitution and any future law enacted by any authority in India have to stand the
test for their validity on the provision of Part III of this Constitution. The scope and extent of
article 135 of the Constitution has been a matter of debate in various cases 6 and has resulted into
conflicting decisions of the Supreme Court. In the quest of effectuating this Article, Courts have
evolved various doctrines like the doctrines of severability, prospective overruling, and
acquiescence7 The Doctrine of Eclipse is one such principle, based on the premise that

1
Supra note 1.

The Author is 2nd Year student of B.B.A.LL.B. (Hons.), KIIT Law School, Bhubaneswar (Odisha). Author can be
reached at raj007jiten@gmail.com or at +91-9777590302.
2
Supreme Court on Record Association v. Union of India, AIR 1994 SC 268: (1993) 4 SCC 441.
3
D.D. Basu, Commentary on Constitution of India, 8th ed., Vol. 1 (Nagpur: Wadhwa , 2007) at p. 689 [Basu].
4
Golak Nath v. State of Punjab, AIR 1967 SC 1643 : (1967) 2 SCR 762.
5
CONSTITUTION OF INDIA (1950), Article 13.
6
Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128 [Keshavan case]; Bhikhaji Narain Dharkras v.
State of Madhya Pradesh, AIR 1955 SC 781 : 2 (1955) SCR 589 [Bhikhaji Case]; Behram Khurshid Pesikaka v.
State of Bombay, AIR 1955 SC 123 : (1955) 1 SCR 613 [Behram Case]; M.P.V. Sundararamier v. State of Andhra
Pradesh, AIR 1958 SC 468 : 1958 SCR 1422 [Sundararamier Case]; Deep Chand v. State of Uttar Pradesh, AIR
1959 SC 649 [Deep Chand Case]; Mahendralal Jaini v. State of Uttar Pradesh, AIR 1963 SC 1019 : (1963) Supp.
(1) SCR [Mahendralal Case]; Jagannath v. Authorized Officer, Land Reforms, AIR 1972 SC 425 : (1971) 2 SCC
788; Ambika Mills Case, Supra note 1.
7
V.N. Shukla, The Constitution Of India (M.P. Singh ed., 2001) at p. 29-32 [Shukla].

Electronic copy available at: http://ssrn.com/abstract=1661680

fundamental rights are prospective in nature.8 As a result of its operation, "an existing law
inconsistent with a fundamental right, though it becomes inoperative from the date of
commencement of the Constitution, is not dead altogether."9 Hence, in essence, the Doctrine
seeks to address the following quandary: If a law is declared null and void for infringing on a
fundamental right, and then that fundamental right is itself amended such that the law is purged
of any inconsistency with it, does the law necessarily have to be re-enacted afresh, or can it
revive automatically from the date of the amendment? In other words, what is the precise nature
of the operation of the Doctrine in the face of the general rule that a Statute void for
unconstitutionality is non-est and "notionally obliterated" from the Statute Book?10 Inherent in
the application of the Doctrine to such questions is the predicament of conflicting priorities.
What is to be determined here is whether, for the purpose of avoiding the administrative
difficulties and expenditure involved in re-enacting a law, a law which was held void on the very
sensitive and potent ground of violation of fundamental rights should, under special
circumstances be permitted to revive automatically. This also raises some profound questions
about legislative competence and the interference of courts in law making.

These are the issues that this paper seeks to address. In doing so, the first part of this paper takes
the background of decision of Supreme Court in Ambica Mills Case and then it moves to trace
the origin and fruition of the Doctrine through judicial pronouncements, by exploring its
fundamental premises. The next part will examine the judgment of Ambica Mills Case11 in the
light of our understanding on doctrine of eclipse, interpretation of article 13 and study of earlier
case-laws. The succeeding part delves into the litigious issue of extending its applicability to
post-Constitutional laws. The researcher will limit his discussion to the research issues raised by
him.

II] BACKGROUND OF THE AMBICA MILLS CASE

After the State of Bombay was bifurcated the legislature of the State of Gujarat enacted the
Bombay Labour Welfare Fund (Gujarat Extension and Amendment) Act, 1961, making various

8
M.P. Jain, Indian Constitutional Law, 5th ed., (Nagpur: Lexisnexis Butterworths Wadhwa, 2009) at p. 848 [Jain].
9
P. RAMANATH AIYAR'S Law LEXICON (Justice Y.V. Chandrachud et al. eds., 2002) at p. 585; See the
Supreme Court's discussion of the doctrine in Bhikaji Case, supra note 7.
10
See Venkataraman, The Status of an Unconstitutional Statute, 2 J. IND. L. INST.401 (1960).
11
Ambika Mills Case, supra note 1.

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Electronic copy available at: http://ssrn.com/abstract=1661680

amendments in the Bombay Labour Welfare Fund Act, 1953.12 The 1953−Act was passed with a
view to provide for the constitution of a fund for financing activities for promoting the welfare of
labour in the State of Bombay. 13 The respondents were a company registered under the
Companies Act, 1956 impugned certain provisions of the said Act, and the rules made
thereunder.14 The High Court held that the impugned provisions violated Art. 19 and were
void.15 Consequently, as the Act was still-born and non est, the respondents could challenge the
demand made under the Act as not authorized by law. 16 The Supreme Court allowed the appeal
and thus, the case came before a constitutional bench comprising of A.N. Ray, C.J., H.R.
Khanna, K.K. Methew, Y.V. Chandrachud and A. Alagiriswami, JJ.

III] THE MAIN ISSUE AND THE REASONING EMPLOYED BY THE SUPREME COURT

The principle issue considered by the Court was whether a law violating the fundamental rights
under Art. 19 (1) (f) of citizen-employees can be challenged by the respondent, i.e. a non-citizen
employer, on the ground of law being void also against non-citizen employers under Art 13 (2).

The Court, speaking through K.K. Methew J., proceeded with assumption that the impugned
provisions abridged the fundamental right of citizen-employers and citizen-employees under Art
19 (1) (f), to decide on the main issue. The Court held that Ambica Mills, being a non-citizen
could not claim the law to be void as against them by application of Art 13 (2). The Court
reasoned that if a law takes away or abridges the fundamental rights of citizens under Art 19 (1)
(f), it would be non est and void as against citizens who have been conferred such right but it will
be operative in regard to non-citizens as the law is void only to the extent of contravention of the
rights conferred on citizens. 17 Based on the aforesaid contentions, the Court came to the
conclusion that the impugned provisions were not non est but were valid laws as respect to non-
citizens and thus the respondents cannot take the plea that its right to property are being taken
away or abridged without the lawful authority.

12
Ambika Mills Case, supra note 1 at p. 1303, ¶ 7.
13
Ambika Mills Case, supra note 1 at p. 1302, ¶ 4.
14
Secs. 3, 6A and 7, Bombay Labour Welfare Act, 1953; Sec. 13, Bombay Labour Welfare Fund (Gujarat Extension
and Amendment) Act, 1961 and Rules 3 and 4 of the Bombay Labour Welfare Fund Rules, 1953.
15
Ambika Mills Case, supra note 1 at p. 1302, ¶ 3.
16
H.M. Seervai, Constitutional Law of India, 4th ed., vol. 1 (New Delhi: Universal Law Publishing Co. Pvt. Ltd.,
2008) at p. 418 [Seervai]
17
Ambika Mills Case, supra note 1at pp. 1309-1310, ¶¶36-38.

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IV] DOCTRINE OF ECLIPSE – TRACING ITS GENESIS AND EVOLUTION

Before analyzing the judgment of the Court in Ambica Mills Case and to know the correct legal
position on the Doctrine of Eclipse, it is quite pertinent to enquire into the evolution of this
doctrine by evaluating the Supreme Court‟s interpretation of article 13 (1). The Doctrine was
inherited implicitly in the ruling of the Supreme Court in Keshavan Case; it was further qualified
by the dissenting opinion of Das J. in Behram Case and was subsequently propounded as law in
Bhikhaji Case.

[1] The Decision in Keshavan Case

The origin of this doctrine can be traced back to the pronouncement of the Supreme Court in
Keshavan Madhava Menon v. State of Bombay,18 where the Court dealt with the questions
regarding the retrospectivity of fundamental rights and the interpretation of the word "void" in
Article 13(1) of the Constitution. However, there was no express wording by the Court on
Doctrine of Eclipse but the opinion of the Court laid down the founding stone for the doctrine.

Article 13(1) provides that all pre-Constitutional laws, in so far as they are inconsistent with
fundamental rights, are void. If fundamental rights are retrospective, then all pre-Constitutional
laws inconsistent with fundamental rights must be void ab initio. On this point, both Das and
Mahajan, JJ., maintained that fundamental rights, including the freedom of speech and
expression, were granted for the first time by the Constitution and that in September 1949, when
proceedings were initiated, the appellant did not enjoy these rights.19 Hence, it was established
that, as fundamental rights became operative only on, and from the date of the Constitution
coming into force, the question of inconsistency of the existing laws with those rights must
necessarily arise only on and from such date. On the construction of article 13 (1), Court said
that the language of article is clear and thus it is prospective in operation. 20 This interpretation
has been upheld in subsequent cases. 21 The majority rejected the view that the meaning of “void”
in article 13 (1) amounts to “repeal” of the statute. According to Das J.:

18
Keshavan Case, Supra note 7.
19
Keshavan Case, supra note 7 at p. 130.
20
Keshavan Case, supra note 7 at p. 130.
21
See, e.g., Purshottam Govindji Halai v. B.M. Desai, A.I.R. 1956 S.C. 20; Pannalal Binjraj v. Union of India,
A.I.R. 1957 S.C. 397.

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 Article 13(1) cannot be read as obliterating the entire operation of the
inconsistent laws, or to wipe them out altogether from the statute book, for to
do so will be to give them retrospective effect which, we have said, they do not
possess. Such laws exist for all past transactions and for enforcing all rights
and liabilities accrued before the date of the Constitution.22 [emphasis added]

[2] Dissenting Opinion of Das J. in Beharam Case – Correct Ruling on Article 13 (1)

Before moving ahead, it is quite important to consider the opinion clash between Mahajan C.J.
and Das J. in Behram Khurshid Pesikaka v. State of Bombay.23 Mahajan C.J. after referring to the
ruling of Keshavan Case in relation to word “void” in article 13 (1), held that a pre-
Constitutional law which is declared void should be notionally obliterated from the Statute book
for the purposes of determining the rights and obligations of citizens. However, the same remains
good law when a question arises for determination of rights and obligations incurred before 26
January, 1950. 24 Das J. dissented and said that to hold that the invalid part was obliterated would
be tantamount to saying covertly that the judicial declaration had to the extend amended the
section.25

Authors like H.M. SEERVAI, have severely criticized the reasoning followed by Mahajan, C.J.,
because of his use of the term notionally obliterated. According to SEERVAI, if the view of the
Court in Keshavan that the term void does not mean repealed, and that Article 13 cannot be read
as obliterating the entire operation of inconsistent laws, is taken to be correct, then there is no
scope for an unconstitutional provision to be notionally obliterated. Thus, the learned scholar
supports the dissenting judgment of Das, J. as the correct statement of the law which is backed
by the earlier decision of the Court in Keshavan Case.

[3] The Implicit Proposition Expressed – Bhikaji Case

The prospective nature of Article 13(1), and the limited connotation accorded to the word "void"
in Keshavan Case, which was further expounded by Das, J. in his dissenting opinion in Behram

22
Keshavan Case, supra note 7 at p. 130.
23
Behram Case, supra note 7.
24
Behram Case, supra note 7, at p. 145.
25
Behram Case, supra note 7, at p. 152.

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Case, necessitated the enunciation of the Doctrine of Eclipse in the leading case of Bhikaji
Narain Dhakras v. State of Madhya Pradesh.26 In this case, the provisions of a pre-
Constitutional law27 became void after the commencement of the Constitution as they violated
article 19 (1) (g). However, Article 19(6) was amended in 1951, so as to permit such reasonable
State actions. 28

It was argued on behalf of the petitioners that the impugned Act, being void under Article 13(1),
was dead and could not be revived by any subsequent amendment of the Constitution, but had to
be re-enacted. This contention was rejected by a unanimous decision of the Supreme Court,
which laid down that after the amendment of Article 19(6) in 1951, the constitutional
impediment was removed. The Act, therefore, ceased to be unconstitutional, and became
revivified and enforceable.29

The crux of the decision was the observation that an existing law inconsistent with a fundamental
right, though inoperative from the date of commencement of the Constitution, is not dead
altogether. It continued to exist in respect of rights and liabilities which had accrued before the
date of the Constitution and remain operative as against non-citizens.30 This ratio, in substance
overruled the judgment of Mahajan J. in Behram Case. This proposition has been affirmed by
the learned scholar, Sheervai also. The Court, speaking through Das A.C.J., formulated the
Doctrine of Eclipse, in the following words31 –

“The true proposition is that the impugned law became, as it were, eclipsed, for
the time being, by the fundamental right. The effect of the Constitution (First
Amendment) Act, 1951 was to remove the shadow and to make the impugned Act
free from all blemish or infirmity.32

He reiterated that such laws remained in force qua non-citizens, and it was only against the
citizens that they remained in a dormant or moribund condition. This case was thus the

26
Bhikhaji Case, supra note 7.
27
The C.P. and Berar Motor Vehicles (Amendment) Act, 1947 which amended the section 43 of the Motor Vehicles
Act, 1939.
28
Bhikaji Case, supra note 7 at p. 782.
29
Bhikaji Case, supra note 7 at p. 784.
30
Bhikaji Case, supra note 7 at p. 784; Also see Jain, supra note 9 at p. 849.
31
Basu, supra note 4 at p. 692.
32
Bhikhaji Case, Supra note 7 at pp. 784-785.

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foundation of the Doctrine, which has since been the subject of judicial contemplation in
numerous decisions.

V] APPLICATION OF DOCTRINE OF ECLIPSE TO POST–CONSTITUTIONAL LAWS

In the author's opinion, three questions must be answered, in order to gauge the applicability of
the Doctrine to post-Constitutional laws. First, can a post-Constitutional law be revived by a
subsequent Constitutional amendment removing the Constitutional bar to its enforceability or the
post-Constitutional laws which are inconsistent shall be void ab initio and thus cannot be
revived? Second, if a post-Constitutional law violates rights conferred on citizens alone, (and
thus becomes void qua them), does it remain valid and operative qua non-citizens like foreigners
and companies, or the law will be completely null and void by the strict application of Article 13
(2)? Finally, can amending the Act in question so as to remove the blemish revive the law in
question, or will it have to be re-enacted as a whole? This Part will examine each of these
questions in detail.

In relation to the first question posed by the author, it is submitted that a post-Constitutional law
which abrogates or takes away fundamental rights will be void ab initio as against the persons on
whom such rights have been conferred. The author also contends that a post-Constitutional law
cannot be revived by a subsequent Constitutional amendment. The author rests his contention in
the light of the judgment of the Supreme Court in Sagir Ahmed v. State of U.P.,33 in which a
Constitution Bench of the Apex Court unanimously stated that the Doctrine could not be applied
to the impugned post-Constitutional law. A legislation that contravened Article 19(1) (g) and was
not protected by clause (6) of the Article, when it was enacted after the commencement of the
Constitution, could not be validated even by subsequent Constitutional amendment.34 As regard
to the operation of such law which takes away rights of citizens, as against non-citizens, the
author partially agrees with the following proposition by Das, C.J. in Behram Case –

33
AIR 1954 SC 728 : (1955) 1 SCR 707 : 1954 SCJ 819.
34
In this context, Prof. Cooley has famously observed: A statute void for unconstitutionality is dead and cannot be
vitali sed by a subsequent amendment of the Constitution removing the constitutional objection but must be re-
enacted. See COOLEY, A TREATIS ON THE CONSTITIUTIONAL LIMITATIONS WHICH RESTS UPON
THE LEGISLATIVE POWER OF THE STATES (1927) at p. 201. This contention was accepted in this case as
sound; Also see L.M. Sighvi, Constitution of India, 2nd ed., Vol. 1 (New Delhi: Modern Law Publication, 2008) at
217 [Singhvi].

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 But apart from this distinction between pre-Constitution and post-Constitution laws
on which, however, we need not rest our decision, it must be held that these
American authorities can have no application to our Constitution. All laws, existing
or future, which are inconsistent with the provisions of Part III of our Constitution,
are, by the express provision of Article 13, rendered void 'to the extent of such
inconsistency.' Such laws were not dead for all purposes. They existed for the
purpose of pre-Constitution rights and liabilities and they remained operative, even
after the Constitution, as against non citizens.35

The "American authorities" referred to in this case by the Supreme Court involved only post-
Constitutional laws which were inconsistent with the provisions of the American Constitution,
and which were held to be "still born", as it were. Thus, these American rulings clearly could not
apply to the case of pre-Constitutional laws that were perfectly valid before the Constitution's
provisions took effect. Nevertheless, this observation has been used to contend that the Court has
not drawn any distinction between pre-Constitutional and post-Constitutional laws.36 The author
submits, however, that in the latter part of the observation, the Court had in mind only the pre-
Constitutional laws; otherwise it could not have stated that the laws existed for the purpose of
pre-Constitutional rights and liabilities and that they remained operative even after the
Constitution as against noncitizens.

In Deep Chand v. State of U.P.37 it was held that there is a clear distinction between the two
clauses of Article 13. Under clause (1) a pre-Constitutional law subsists except to the extent of
its inconsistency with the provisions of Part III, whereas as per clause (2), no post-Constitutional
law can be made contravening the provisions of Part III and therefore the law to that extent,
though made, is a nullity from its inception.

Mahendra Lal Jaini v. State of U.P.38 is the most authoritative decision for the impossibility of
reviving post-Constitutional laws by a Constitutional amendment. The Court based its finding on
the two grounds. First, the language and scope of Article 13(1) and 13(2) are different. Clause
(1) clearly recognizes the existence of pre-Constitutional laws which were valid when enacted,
35
Bhikaji Case, supra note 7 at p. 781, 783.
36
Seervai, supra note 17, at 413.
37
Deep Chand Case, supra note 7.
38
Mahendralal Case, supra note 7.

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and therefore could be revived by the Doctrine. Clause (2) on the other hand begins with an
injunction to the State not to make a law which takes away or abridges the rights conferred by
Part IIVO The legislative power of Parliament and State Legislatures under Article 245 is subject
to the other provisions of the Constitution and therefore, subject to Article 13(2). Second,
"contravention" takes place only once the law is made. This is because the contravention is of the
prohibition to make any law, which takes away or abridges the fundamental rights. It is no
argument to say that simply because the Amendment removes any subsequent scope for
contravention, the law is no longer in conflict with the Constitution.

However, the scope of the principles established above stands drastically curtailed in view of the
Supreme Court decision in State of Gujarat v. Shree Ambica Mills,39 wherein Matthew, J. held
that like a pre-Constitutional law, a postConstitutional law contravening a fundamental right
could also be valid in relation to those, whose rights were not infringed upon. For instance, when
a postConstitutional law violates a fundamental right like Article 19 which is granted to citizens
alone, it would remain valid in relation to non-citizens.40 Thus the term "void" in both the clauses
of Article 13 makes a law only relatively void, and not absolutely void.

This judgment has been used to contend that the Doctrine has finally been extended to all post-
Constitutional laws as well, since it recognizes that the law is not an absolute nullity and can
operate against non-citizens. The author submits that this is not the correct proposition of law. It
is evident that a law which abridges the rights of only citizens will remain enforceable against
non-citizens, and thus, there is no question of the Doctrine of Eclipse even entering the picture.
However, as regards citizens whose rights were infringed, the law must be regarded as stillborn
and void ab initio, and therefore, in order to make it apply to citizens, the law would have to re-
enacted afresh.

From this arises the final question: When a post-Constitutional law is held inconsistent with a
fundamental right, can it be revived by amending the Act in question so as to remove the
blemish, or will it have to be re-enacted as a whole? The Delhi High Court in P.L. Mehra v. D.R.
Khanna,41 has held that the legislation will have to be re-enacted and that it cannot be revived by

39
Ambica Case, supra note 1.
40
Ambica Case, supra note 1 at pp. 1309-11.
41
A.I.R. 1971 Del. 1.

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mere amendment. This view appears to the author to emanate logically from the position adopted
by the Supreme Court in treating such a law as void ab initio. There is, therefore, no need to
apply the Doctrine of Eclipse to post-Constitutional laws, as discussed above. There is no direct
Supreme Court ruling on this point. The closest authority on this issue is Shama Rao v. State of
Maharashtra,42 wherein an Act was challenged on the ground of excessive delegation, and
pending the decision, the Legislature passed an Amendment Act seeking to remove the defect.
The Supreme Court ruled by a majority that when an Act suffers from excessive delegation, it is
stillborn and void ab initio. It cannot be revived by an amending Act seeking to remove the vice,
and must be re-enacted as a whole. It is submitted that this ruling supports the proposition that an
Act held invalid under Article 13(2) would not be revived merely by amending it, but would
have to be re-enacted. Hence, we may safely infer that Ambica Mills does not destroy the force
of the judicial pronouncements in Deep Chand and Mahendra Jaini, but merely limits the scope
of their operation, and that the Doctrine, as of now, cannot be extended to post-Constitutional
laws.

VI] JUDGMENT OF AMBICA MILLS CASE – A CRITICAL REAPPRAISAL

With a clear and unambiguous notion about the application of Doctrine of Eclipse, now I shall
proceed to examine the judgment of the Supreme Court in Ambika Mills Case. The Supreme
Court in this case held that even though a law is void quo citizens, it will be operative as against
non-citizens for the reason being the law will be void only to the extent of contravention.43 Non-
citizens cannot take advantage of such voidness for the reason being they have not been
conferred such rights. This proposition emerging out of Ambica Mills Case has been also
supported by learned scholar, like Seervai.

The Court, speaking through K.K. Methew, according to the author, has correctly interpretated
the phrase to the extent of contravention which is enshrined in article 13 (2) of the Constitution
in this case. Methew J, substantiated his reasoning by referring to the proposition laid down in
Keshava Menon case44 and held that:

42
A.I.R. 1967 S.C. 480.
43
Ambika Case, supra note 1 at p. 1310.
44
Keshavan Case, supra note 7.

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 “…even though a law which is inconsistent with fundamental rights under Article
19 would become void after the commencement of the Constitution, the law would
still continue in force in so far as non-citizens are concerned…..the word 'void' in
Article 13 (1) would not have the effect of wiping out pre-Constitution laws from
the statute book, that they will continue to be operative so far as non-citizens are
concerned, notwithstanding the fact that they are inconsistent with the
fundamental rights of citizens and therefore become void under Article 13 (1)”.45

The author submits that although the Court failed to look out the difference between the word
„void‟ as provided in article 13 (1) and article 13 (2) but this construction will not affect its
reasoning that the law shall be applicable as against non-citizens. Although the meaning of word
„void‟ for all practical purpose is same in both clauses of the article but there is one vital
difference between voidness arising out of pre-Constitutional law and post-Constitutional law.
This view has been affirmed by various scholars 46 and the Supreme Court decision in
Mahendarlal Case.47 The voidness of the pre-Constitutional laws is not from inception. Such
voidness supervened when the Constitution came into force; and so they existed and operated for
sometime and for certain purposes; the voidness of post-Constitution laws is from their very
inception and they cannot therefore, continue to exist for any purpose. 48 The voidness of post-
Constitution law emerges due to the prohibition which is incorporated in article 13 (1) that the
State shall not make any law. In the words of the Supreme Court in Mahendralal Case,

“The prohibition contained in Article 13 (2) makes the state as much incompetent
to make a law taking away or abridging the fundamental rights as it would be
where law is made against the distribution of powers contained in the Seventh
Schedule to the Constitution between Parliament and the Legislature of a State”.49

As regard to the application of law which is made by an incompetent legislature to the non-
citizens, the Ambika Mills case is not fruitful. If the wording of article 13 (2) makes a legislature

45
Ambika Mills Case, supra note 1 at p. 1307, ¶ 29.
46
Singhvi, supra note 35 at p. 222; S.C. Kashyap, Constitutional Law of India, Vol. 1 (Delhi: Universal Law
Publishing Co., 2008) at p. 457 [Kashyap].
47
Mahendralal Case, supra note 7.
48
Singhvi, supra note 35 at p. 222.
49
Mahendralal Case, supra note 7 at pp. 1029-1030.

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incompetent and yet it makes a law abridging the rights of the citizens, it shall be rendered void
only to the extent of contravention. It is submitted that the incompetency is delving as against
citizens only (to the extent of contravention) as the state was prohibited to make laws which
takes away their rights, and thus to that extent they will not be applicable to them and will stand
as still born law. As regard to non-citizen, the State is competent as the incompetency is only to
the extent the law contravenes the rights of the citizens. Thus, the law which is non est for the
citizens can be validly applicable to non-citizens.

The interpretation laid down by the Court, according to the author, is correct proposition of law
in relation to the applicability of law which abridges the rights of one section of people who has
been conferred such rights and as against other section who has not been conferred such rights.
The phrase to the extent of contravention when read with first part of clause 2, State shall not
make any law, clearly indicates that incompetency and voidness shall exist only to the extend it
contravenes the rights of citizens as they have been conferred article 19 rights. The law will be
perfectly valid as against those whose rights are not violated and legislature has competency to
enforce such laws as against them as they have not been conferred article 19 rights and as such
they cannot claim the violation of such rights in the Court of law. Thus, the Author submits that
ruling of Supreme Court in Ambica Mills stands as a good law.

VII] CONCLUSION

The Doctrine of Eclipse exemplifies a subtle, nuanced aspect of the theory of Constitutionalism
and the rule of law. It is used, in exceptional circumstances, to save unconstitutional statutes
from being totally wiped off the statute book, and to merely render them dormant or inoperative
for the time being. While ordinarily, a statute held unconstitutional cannot be revived except by
re-enactment, a statute under eclipse is revived by obliteration of the limitations generating the
taint of unconstitutionality. The question of whether the Doctrine can be extended to revive post
Constitutional laws as well, has engendered acrimonious debate among jurists50 and judges51

50
H.M. Seervai [Seervai, supra note 17] and V.N.Shukla [Shukla, supra note 8] appear to be in favour of the revival
of post-Constitutional laws by virtue of the Doctrine, whereas M.P. Jain [Jain, supra note 9], D.D. Basu [Basu,
supra note 4], S.C. Kashyap [Kashyap, supra note 47] and L.M. Singhvi [Singhvi, supra note 35] have
persuasively argued against it, citing the impossibility of reviving an Act which never had any valid existence.
51
See, on the one hand, the decision of Matthew, J., in Ambica Mills Case, supra note 7, which has been used to
argue in favour of the revival of post-Constitutional laws, and on the other hand, the decision in Mahendralal
Case, supra note 7, which denies such a possibility. See also the majority judgment against the revival of post-

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alike, and has also thrown up intriguing constitutional questions that beg for decisive judicial
determination, such as the exact connotation of the word "void" in Article 13(1) and (2), and
whether the American notion of "relatively void" is applicable to the Indian scenario. The fact of
the matter is that there has been no unambiguous pronouncement by the Supreme Court on this
issue following Ambica Mills, and thus far, the Doctrine of Eclipse has not been applied to post-
Constitutional laws, a position with which the author is, as afore mentioned in this paper,
inclined to agree. Ambica Mills has, thus helped in removing the contradictions involved in the
Supreme Court judgments we have been considering. The author concludes that the proposition
laid down by Ambica Mills Case is a sound logical foundation which is based on the correct
interpretation of Article 13 clause 1 and 2.

Constitutional laws, in P.L. Mehra v. D.R. Khanna, AI.R. 1970 Del. 1, and the dissenting opinion of V.N.
Deshpande, J.

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