Doctrine of Eclipse

Art. 13 of Constitution of India- Laws inconsistent

with or in derogation of the fundamental rights
1. All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void
2. The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to
the extent of the contravention, be void
3. In this article, unless the context otherwise requires
a) “law” includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in
the territory of India the force of law;
b) “laws in force” includes laws passed or made by Legislature or other competent authority in the territory
of India before the commencement of this Constitution and not previously repealed, notwithstanding that
any such law or any part thereof may not be then in operation either at all or in particular areas
4. Nothing in this article shall apply to any amendment of this Constitution made
under Article 368.
 Keshavan Madhava Menon V. The State Of Bombay, 128 AIR
228 SCR (1951)

• The petitioner was the Secretary of People’s Publishing House India Ltd. In September 1949,
a pamphlet titled ‘Railway Mazdooron ke khilaaf nai Zazish’ was allegedly published in
Bombay by the petitioner as the company’s secretary. The pamphlet was said to violate
section 15 (1) and section 18 (1) of the Indian Press (Emergency Powers) Act, 1931. In this
case, a prosecution was started against the petitioner by the respondent in the Court of
Chief Presidency Magistrate, Bombay.
• The Constitution of India came into force on 26th January, while the proceedings of the
aforesaid case were still pending.
• On 3rd March 1950, the petitioner filed a written statement in the Court stating that after
the commencement of the Constitution, the definition of ‘news sheet’ according to the
Indian Press (Emergency Powers) Act, 1931 was ultra vires and void because of Article 19(1)
(a) read with Article 13 of the Constitution. The petitioner requested that the proceedings
in the matter be stayed until the High Court decided on the matter of law.
• Accordingly, a petition was filed in the High Court on 7th March 1950 praying that the
sections 15 (1) and 18 (1) of the Indian Press (Emergency Act), 1931 be declared void in
light of articles 13 and 19 (1) (a) of the Constitution. During this petition’s pendency,
charges were framed against the petitioner by the Chief Presidency Magistrate on 23rd
March 1950 under section 18 of the Indian Press (Emergency Powers) Act 1931.
• During the hearing of the petition on 12th April 1950, the High Court took the view that
the word ‘void’ was used in Article 13 in the same sense as the word ‘repealed’, which
attracted section 6 of the General Clauses Act.
• Therefore, the High Court held that the proceedings under Indian Press (Emergency Act),
1931 were not affected, even if the Act were inconsistent with the fundamental rights
conferred by the Constitution, and dismissed the petitioner’s application. The petitioner
appealed before the Supreme Court on the strength of the High Court’s certificate under
Article 132 (1) of the Constitution.
Issues
• Whether Sections 15(1) and 18(1) read with definitions contained in
Sections 2(6) and 2(10) of Indian Press (Emergency Powers) Act, 1931
were inconsistent with Article 19(1)(a) read with Article 19(2)?
• 2. Even if it is inconsistent with the proceedings commenced under
section 18(1) before commencement of Constitution be proceeded
with?
Decision

• The Court said that the law did not become void in its entirety or for
all times but only to the extent of such inconsistency. Therefore the
impugned law became eclipsed for the time being by the
fundamental rights. Such laws are not dead for all purposes. They
exist for the purposes of pre-Constitutional rights and liabilities and
they remain operative even after the commencement of the
Constitution, as against non-citizens. Hence, Article 13 was held to
not be applicable in this case.
• The same is true for post constitutional laws under Art. 13(2) as held
in the case of State of Gujarat vs. Ambica Mills Ltd. 1974 4 SCC.