Constitution

The Doctrine of Severability as well as the Doctrine of Eclipse, both pertain to laws that are in violation of fundamental rights, i.e., both doctrines fall within the ambit of Article 13 of the Indian Constitution.

When we delve into the Doctrine of severability, we find that it’s functionality arises when a part of a statute is declared unconstitutional, and the question arises whether the whole of the statute is to be declared void or only that part which in unconstitutional should be declared as such. To resolve this problem, the Supreme Court has devised this aforementioned doctrine, which essentially states that if an offending provision can be separated from that which is constitutional then only that part which is offending is to be declared as void, and not the entire statute.

To understand further, we may consider the precedent established in AK Gopalan v. State of Madras (AIR 1950 SC 27). The Supreme Court while declaring Section 14 of the Preventative Detention Act 1950 as ‘ultra vires’ observed that “the impugned Act minus this section can remain unaffected. The omission of the section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of legislation.” Similarly in State of Bombay v. Balsara (AIR 1951 SC 318), a case under Bombay Prohibition Act, 1949, it was observed that the provisions which have been declared void do not affect the entire statute; therefore, there is no necessity for declaring the statute as invalid.

The Doctrine of Eclipse, on the other hand, is based on the principle that a law which violates Fundamental Rights is not nullity, or ‘void ab initio’ but becomes only unenforceable, i.e., remains in a moribund condition. As it was stated in Bhikaji Narayan v. State of MP (AIR 1955 SC 781), “it is overshadowed by the fundamental rights and remains dormant; but it is not dead”. Such laws are not wiped out entirely from the statute book. They exist for all past transactions, and the enforcement of rights acquired and liabilities incurred before the present constitution came into force and for determination of right of persons who have not been give fundamental rights by the constitution, e.g, non-citizens (Keshava Madhava Menon v. State of Bombay, AIR 2951 SC 128).

To simplify and conclude, I have summarized the aforementioned conceptual differences into this table below:

It is also known as doctrine of separability. It protects our Fundamental Rights, as it is mentioned in the clause 1) of the Article 13 of the Constitution that All laws enforce in India, before the commencement of Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void. But the whole law or act would not be held invalid, but only the provisions of the law or act which are not in consistency with the Fundamental rights. This is what the Doctrine of severability is. But it is only possible if the part which is inconsistent with the law is separated from the whole law. If both the valid and invalid part is so closely mix up with each other that it cannot be separated then the whole law or act will be held invalid.

CASE LAW : A.K. Gopalan v. State of Madras
Eclipse occurs when one object overshadows the other, so as the name suggests that Doctrine of Eclipse is applied when any law or act violates the fundamental rights then the fundamental rights overshadows the other law or act and make it unenforceable but not void ab initio. They can be enforced again if the restrictions posed by the fundamental rights are removed.

CASE LAW : Bhikaji Narain Dhakras v. State of Madhya Pradesh