Bhikaji Narain Dhakras v State of Madhya Pradesh (Supreme Court, 1955) — the doctrine of eclipse

This is the case that names and explains the doctrine of eclipse. It answers a question Keshavan Madhava Menon had left open: if a pre-Constitution law was rendered void by Article 13(1), can a later amendment of the fundamental right bring it back to life without re-enactment?

Five petitions were heard together, each by a stage-carriage operator who had for years held permits under section 58 of the Motor Vehicles Act, 1939 as amended by the C.P. & Berar Motor Vehicles (Amendment) Act, 1947. The 1947 Act had amended section 43 of the 1939 Act in its application to the Central Provinces and Berar so that the Provincial Government could, among other things, cancel any permit and take over the motor transport business to the exclusion of private operators. When the Constitution came into force on 26 January 1950 that provision became inconsistent with Article 19(1)(g), the right to carry on any occupation, trade or business, and so void under Article 13(1) "to the extent of such inconsistency". On 18 June 1951 the Constitution (First Amendment) Act, 1951 substituted a new clause (2) of Article 19, expressly made retrospective, and also amended clause (6) so as to permit a law relating to the carrying on by the State of any trade, business, industry or service, to the exclusion of citizens or otherwise; the amended clause (6) was not made retrospective. The State then moved to exclude the private operators, and they petitioned under Article 32. The Bench was S.R. Das C.J., Bhagwati, Venkatarama Ayyar, Jafer Imam and Chandrasekhara Aiyar JJ.

Was the 1947 Act, having become void on 26 January 1950 as against citizens, dead for all purposes, so that it could not be revived by the First Amendment without re-enactment; or was it merely eclipsed, and revived when clause (6) was amended?

Void is not dead. Following the meaning given to "void" in Keshavan Madhava Menon, S.R. Das C.J. said: "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 purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. It is only as against the citizens that they remained in a dormant or moribund condition."

The eclipse. Between 26 January 1950 and 18 June 1951 "the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under Article 19(1)(g). The true position 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." The Court reasoned that if a void law were dead, the reference in the amended clause (6) to saving an "existing law" creating a State monopoly would be unintelligible, for on that view every such law had already perished on 26 January 1950.

Revival. "In our judgment, after the amendment of clause (6) of Article 19 on the 18-6-1951, the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non-citizens." Because the amended clause (6) was not retrospective, the Act had no operation against citizens between 26 January 1950 and 18 June 1951, and no rights or obligations could be founded on it for that period; from 18 June 1951 it was fully enforceable.

A pre-Constitution law inconsistent with a fundamental right is not void ab initio. It is eclipsed by the right, dormant as against citizens while remaining alive for past transactions and against non-citizens, and it revives automatically, without re-enactment, when a constitutional amendment removes the inconsistency.

The compilations record that eclipse applies to pre-Constitution laws and not, as a rule, to post-Constitution laws, which are still-born if they contravene Article 13(2) (Deep Chand v State of U.P.), subject to the refinement in State of Gujarat v Shri Ambica Mills (1974) that such a law is still-born only as against those who hold the right in question, so that a law contravening a citizen's right operates against non-citizens and companies.