DOCTRINE OF ECLIPSE: -

Introduc on : - This doctrine is not men oned in the cons tu on of India but ar cle 13(1) follows this
doctrine. This doctrine only applies to pre cons tu onal provisions.

Doctrine of eclipse: - ‘

- Eclipse in simple words means blocking something. The term eclipse in doctrine means it is
overshadowed by the fundamental rights and remains dormant, but it is not dead”.
- Doctrine of Eclipse states that any law which is inconsistent with fundamental rights is not
invalid, it is not totally dead but overshadowed by the fundamental right. The inconsistency
(conflict) can be removed by cons tu onal amendment. The amendment to the relevant
fundamental right will remove the Eclipse and the en re law becomes valid.
- Doctrine of eclipse is contended in ar cle 13 (1) of Indian Cons tu on.
Ar cle 13(1)- It says that any law which was made before the commencement of the
cons tu on must be consistent with the part 3 (fundamental rights) of the Indian cons tu on.
If any statute which is inconsistent with the provisions provided under part 3 (Fundamental
Rights) of the Cons tu on such statute shall become void. At the same me such statute shall
not be treated as dead but will be moribund condi on un l and unless it is evolved by the
parliament.
Bhikaji Narain Dhakras v State of Madhya Pradesh (1955) for the first me Supreme Court
established the doctrine of Eclipse in this case. The provisions of CP and Barrer motor vehicles
amendment act 1948 allowed the state government to monopolise the motor transport
business in the province. This provision became void upon the commencement of the
cons tu on in 1950 as it violated ar cle 19 (1) (g).
But in 1951 clause 6 of ar cle 19 was amended through the Cons tu on to authorise the
government to establish a monopoly in any business. The Supreme Court determined that this
amendment removed the shadow of the uncons tu onality From the CP and Barrar Motor
Vehicle Act 1948. Thus, during the eclipse period the law was temporarily suspended due to
the conflict with the fundamental rights, thus when eclipse was removed the Act resumed its
opera on.

Principles of doctrine of eclipse: -

i. Pre cons tu onal law:- The doctrine applies to laws which were enacted before the
cons tu onal commencement.
ii. Conflict with the fundamental rights: - The law in ques on must directly conflict with the
fundamental rights guaranteed by the cons tu on.
iii. Inopera veness rather than nullity: - The law does not become wholly invalid or null and
void. Instead it becomes inopera ve or unenforceable against ci zens whose fundamental
rights are violated by the law.
iv. Poten al for future opera veness: - If there is an amendment to the relevant fundamental
right in future it automa cally makes the provision impugned law opera ve again. This
means that the law can be enforced and applied once the conflict with fundamental right
is resolved through a cons tu onal amendment.
P Rathiram v Union of India (1994) In this case the cons tu onal validity of sec on 309 of
IPC, which punishes a empts to commit suicide was ques oned. The Court heard that
ar cle 2- Right to life also includes right to not live and sec on 309 was eclipsed.
 But in case of Gian Kaur vs State of Punjab (1996) It overruled the judgement of P Rathiram
v Union of India and held that right to life does not include right to not live. Thus sec on
309 IPC was again came in force.

Post cons tu onal law: -

Ar cle 13(3) Prohibits state to make any law which takes away or abridges the right conferred by part
3. i.e. Fundamental Rights of the cons tu on. If state makes such a law which is inconsistent with part
3 of the Cons tu on then, it will be declared ultra virus and void to the extent of its contraven on
with fundamental rights.

It is s ll born law and cannot be revived by removal of the cons tu onal provision by subsequent
amendment of the cons tu on. Though post cons tu onal laws inconsistent with fundamental rights
are void from their very incep on a declara on by the Court of their invalidity will be necessary. Thus,
the doctrine of eclipse does not apply to post cons tu onal law.

The case of Deep Chand versus State of U.P. established that a post cons tu onal law made under
ar cle 13(2) That contradicts a fundamental right is null and void from its incep on making it a s llborn
law. It is considered void ab-ini o.

However, in the case of State of Gujarat versus Ambika Mills the Supreme Court modified its previous
verdict as expressed in the Deep Chand versus Mahendra Lal Jain case It stated that a post
cons tu onal law inconsistent with fundamental rights is not always a nullity or non-existent for all
purposes. The Court acknowledged in some cases such law may have certain limited opera ve aspects
even if violates fundamental rights.

Conclusion: -

In essence the doctrine of eclipse provides a mechanism for the temporary suspension of pre
cons tu onal laws that violate Fundamental rights while allowing for the revival and validity through
cons tu onal amendment that remove the inconsistency.
DOCTRINE OF SEVERABILITY: -
Introduc on :

In this Indian cons tu onal structure, the severability theory holds prominent place. It secures as a
restraint on legislature’s unregulated authority, which le unchecked is capable of going wrong and
viola ng the most fundamental rights that are granted to people.

Doctrine of severability: -

- This doctrine of severability is also known as doctrine of separability. The word “to be extent
of the inconsistency or contraven on” makes it clear that when some of the provision of the
statute becomes uncons tu onal on account of in consistency with the fundamental rights,
only to the repugnant provision of the law in ques on shall be treated by the Court as void not
the whole statute.
- Basically this doctrine interlinked from the ar cle 13 because , the doctrine through ar cle 13
of Indian cons tu on opens the door for the judicial review on any law or part of it that is
found uncons tu onal or viola ve of fundamental rights according to the ar cle. The doctrine
of severability means a law which is declared as void is only to the extent of inconsistency or
contraven on with the fundamental rights of Indian cons tu on.
- The doctrine of severability states that provision or a Por on of law in a statute or an act
inconsistent or offensive with the fundamental rights of the Indian Cons tu on then such
offending part shall be declared as void and not the whole statue or an act.

Origin of doctrine of severability: -

Basically this doctrine was ordinated by a case of Nordenfelt vs Maxim Nordenfelt Guns and
Ammona on company ltd. 1849 in England, UK. Thus India adopted the doctrine of severability from
UK and by adop ng the principles of severability india upholds the doctrine of natural jus ce.

Features of doctrine of severability: -

i. Applicability: - Ar cle 13(1) applies to any law inconsistent with fundamental rights. It
prohibits the Legislature from enac ng laws that violates the fundamental rights of the
people.
ii. Nature of the disputed provision: - For the disputed provision to be considered void it must
be shown to be inconsistent with the fundamental rights. If this isn’t proven the doctrine
wouldn’t apply.
iii. Severability: - If the disputed provision is inconsistent with the fundamental rights only
that specific provision will be considered void. The rest of the statute will remain in effect
and enforceable.
However, suppose the disputed provision cannot be separated from the rest of the statute
without making the whole law in appropriate or significantly less effec ve. In that case the
en re statute may be struck down by the Court.
iv. The burden of the proof: - The person who brings the ma er to the Court and alleges that
a statute violates fundamental rights has the burden of proving it.

The landmark judgments on doctrine of severability: -

The Hon'ble Supreme Court of India has applied doctrine of severability in various case laws: -
A.K. Gopalan V State of Madras: The Court held that if the preven ve deten on provision (sec on
14) was removed, the rest of the Act would remain valid and effec ve. The viola ve part was
separate from the valid part.

D.S. Nakara V Union of India: The Court declared the inconsistent posi on of the act as invalid as
it could be easily separated from the valid part leaving the rest of the act intact.

R.M.D.C. V Union of India: The Supreme Court of India considered the doctrine of severability in
the case of R.M.D.C. Vs Union of India. The following rules regarding the severability were
established

 The Court intends to determine whether the invalid por on of a statute can be separated
from the valid part.
 If the valid and invalid parts cannot be separated from each other the invalidity of a por on
of the statute will lead to the invalidity of the en re act.
 Even if the invalid por on is separated from the valid por on the Court has the power and
duty to declare the law inconsistent with the cons tu on of India or uncons tu onal.
 The power of judicial review, allowing the courts to determine the cons tu onality of a
law is based on the principle that the cons tu on represents the will of the people. At the
same me statutes are crea on of the elected representa ves. When a statue contradicts
the cons tu on the will of the people prevails.
 The Cons tu on grants the judiciary the authority to annul acts of execu ve and judiciary
that violate the cons tu on. This power is not vested in the Legislature which is
accountable to the people.
 In assessing the cons tu onality of a provision the Court examines whether the law
complies with the cons tu on and may consider whether it contravenes various ar cles
enshrined in the cons tu on.
Doctrine of pIth and substance: -
Introduc on :

The doctrine of pith and substance is a vital toll in Cons tu onal law, par cularly in federal systems.
By focusing on the true nature and purpose of the laws, this doctrine ensures that the cons tu onal
distribu on of powers is respected, promo ng a harmonious coexistence of federal and state or
provincial authori es within a na on’s legal framework.

Doctrine of pith and substance: -

- The word pith means true nature or essence of something and substance means the most
important or essen al part of something. The defini on of this doctrine is states within their
respec ve sphere, the state and the Union Legislatures are made supreme they should not
encroach upon the spheres demarcated for others.
- In this doctrine the courts analyse the law to determine its true nature and purpose looking
beyond its incidental effects. If the dominant purpose of the law false within the Legisla ve
competence of the enac ng authority, it is deemed valid, even if iden cally encroaches on
areas reserved for another level of government.

Doctrine of pith and substance under Indian Cons tu on: -

- Ar cle 246 of the cons tu on divides Legisla ve powers between the union and the state as
outlined in the 7th schedule. The 7th schedule delineates the distribu on of legisla ve powers
between the centre and the state comprising 3 lists: - union list(list I), state list (list II) and
concurrent list (list III)
- When a law falls within the purview a fawn of the three lists men oned in 7th schedule, courts
invoke this doctrine. Thus, this doctrine is invoked when there is two conflicts or ambiguity
regarding legislature authority between the union and states. It helps determine the true
nature and character of the legisla on ensuring that each level of government address to its
designated area of jurisdic on.
However the powers bestowed on each list are certain to intersect at some point. It is
impossible to draw a clear line between the competences of separate legislatures as they will
inevitably overlap at mes.

Evolu on of the doctrine: -

- It is possible to trace the origin of this doctrine from Canada. In Canada, The case of Cushing
Vdupuy was the first case to establish this doctrine in which the Court laid the ground work
for the doctrine of incidental encroachment.
- When this concept was adopted by India it was followed by many key cons tu onal decisions
that applied doctrine’s value like: -
o Prfulla Kumar VS bank of Commerce, Kulna 1947- In this case the cons tu onality of
the Bengal money lenders act 1940 was challenged which was adopted by the State
Legislature. It was contested on the grounds that the act only applied to promissory
notes. As the subject ma er of promissory note comes under the union list it was
argued that the state had no power to create laws concerning a union ma er.
The Privy Council correctly determine that the genuine object scope and effect of the
act is money lending and interest on the same that the primary is not promissory note
and the State Legislature can pass legisla on to safeguard the true objects extent and
effect of money lending as it comes under state list.
 o State of Bombay vs FN Balsara 1951- In this case the Supreme Court upheld the validity
of the Bombay Prohibi on Act. It prohibited the possession and consump on of
alcohol in the state of Bombay. It incidentally encouraged on central government’s
power to regulate the interstate trade and commerce. The Court held that the act was
within the legisla ve competence of the state government.

Features of the doctrine: -

i. The adop on of this doctrine is necessary because otherwise every law would be
considered uncons tu onal since it encroaches on the subject ma er of another realm.
ii. The actual character of law is defined by pith and substance. The true subject ma er is
being ques oned in this regard and not its unintended consequences in another discipline.
The idea has also been used in India to allow some flexibility in an otherwise strict
distribu on of power between the Legislature.
iii. To iden fy which list is a piece of legisla on belong to, the doctrine looks at its genuine
nature and substance.
iv. It considers whether the state has the authority to enact legislature that affects a subject
from another list or not.

Need for the doctrine: -

1. One of the key reasons for the doctrine adop on and use in India was to give flexibility to an
authorised inflexible framework for power alloca on under the federal structure.
2. Another important ground establishing a need for doctrine in India is that if every legisla on
were to be declared invalid on the ground that it encroaches on the subject of another
legislature would be enormously restric ve and this would not serve the purpose of the power
being granted to Legislature.

Interpreta on of the doctrine of pith and substance: -

In the case of Zamir Ahmed La fur Rehman Sheikh v Stater Maharashtra and others 2010; According
to the courts the doctrine should be used when the Legislature’s legisla ve power in rela on to a
certain statute is called into doubt. If there was a challenge to the Legislature’s capacity the Court
would assess the laws just and content a er the act has been scru nised. It is cri cal for the courts to
evaluate the real character of the legisla on, its goal, scope and impact and to determine if the law in
issue was genuinely covered by a subject ma er listed in the legislature’s concerned list.
COLOURABLE LEGISLATION: -
Introduc on :

The doctrine of cholera legisla on is a legal principle that aims to prevent the excessive
uncons tu onal use of legisla ve authority of the government. This doctrine is also known as “fraud
on the cons tu on”.

Colourable legisla on: -

- The doctrine of cholera legisla on is derived from La n Maxim “quando aliquid prohibetur ex
directo, prohibetur et per obliquum” which means “what cant be done directly, should also
not be done indirectly. And the Black’s law dic onary defines the word “colourable “as: 1)
Appearing to be true, valid or right, 2) Intended to deceive, counterfeit, or 3) Appearance,
guise or semblance.
Thus, doctrine has been used in the cases to decide ques ons of capacity to enact a law when
a law making body violates its given power to enact a er something in an indirect way which
it cannot do in a direct way.
- Under this doctrine the judiciary has the authority to prevent the government from the abuse
of its power when the government misuses its legisla ve authority by making laws outside its
competency, the judiciary has the power to review them and strike them down if they are
found uncons tu onal.
- According to this doctrine the legi macy of the legisla on depends on its competency not on
its mo ve or inten on of such legisla on. So the judiciary take into account only that whether
such par cular legisla on is within the jurisdic on of the government authority or not while
determining whether such law is a colourable legisla on or not.

In case of R.S. Joshi Vs Ajit Mills 1977: The Supreme Court made the observa on that in the
jurisprudence of power, “ Cholera exercise of or fraud on legisla ve power” are expressions that
merely means that the legislature is incompetent to enact a par cular law, even though the level
of competency is struck from lit and at that point it is ‘colourable legisla on’.

Origin of colourable legisla on in India: -

The doctrine of tolerable legisla on was introduced in India by Bri sh administra on who
adopted this doctrine from Canada and Australia.

Principles of colourable legisla on: -

1. It can be dis nguished as a fraud on the cons tu on because legisla on cannot violate a law
though an indirect method as discussed under the case of K.C.G. Narayan Deo vs State of Orissa
2. Colourability is bound with incompetency and not with any evil and bad mo ve, If the
Legislature has the power to make the laws then the mo ve in making the law is irrelevant as
men oned in the case of Nageshwar Vs A.P.S.R.T. Corpora on.
3. If something is colourable in appearance only but not in reality then the Court looks into the
true nature of the legisla on and in that case it focuses on the object as the purpose is relevant
and not the mo ve.
4. If the Legislature is competent to do a thing directly then the fact that it a empts to do it
indirectly or in a disguised manner can’t make the respec ve act invalid.
Legal effect of the doctrine: -

1. This doctrine prevents the misuse of the legisla ve authority of the government through
mely judicial interven on.
2. The judiciary with the health of this doctrine maintains balance in the country whenever any
government authority a empts to become more powerful than the rest in an unauthorised
manner.
3. This doctrine confers the power of the judiciary to cheque the competency of the legisla on
in accordance with its jurisdic on. The courts also have the power to strike them down if they
find them on cons tu onal.
4. It prevents the abuse of authority by a single body(Legislature).

Doctrine of colorable legisla on under cons tu on: -

Ar cle 246 of the Indian Cons tu on deals with the distribu on of legisla ve power between
the parliament and the state Legislature. And in the 7th schedule of the cons tu on contains three lists
which outlines the subjects on which state and central and both state and central Legislature has
authority to make laws. As list (I) it is the central list, List (II) is the state list and list (III) is the concurrent
list on which both state and centre can make laws.

Thus, this doctrine helps to check that authority making law is competent to make such laws or not.

Limita on of the doctrine of Colourable legisla on: -

i. Subordinate legisla on: - It is exempt from this doctrine. It is only based on the ques on
of a legisla ve body’s competence to adopt a certain legisla on.
ii. Inten on and mo ves: - z It is only bound with incompetence of Legislature to make
par cular laws and not with the bad mo ve or inten on.
iii. Apply only to cons tu on: - This doctrine applies only when Legislature exceeds its
authority given under the cons tu on.
iv. Cons tu onal legi macy: - There will consistently be an assump on of cons tu onal
legi macy for the enactment of the Legislature.
Aaj sum has been se led down in the case of Ramkrishna Dalmia v Sri Jus ce S.R.
Tendolkar, That there is always a presump on in favour of cons tu onality of the
enactment and the burden is upon him who a acks it to show that there has been a clear
transgression of the cons tu onal principles.