Constitution


What is the difference between doctrine of severability and doctrine of eclipse? Please explain. *Academic query*

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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:

DOCTRINE

DOCTRINE OF SEVERABILITY

DOCTRINE OF ECLIPSE

RELEVANT ARTICLE

Art 13(1)

Art 13(1), Art 13 (2)

DEFINITION

The doctrine of severability means that when some particular provision of a statute offends or is against a constitutional limitation, but that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute.

The doctrine of eclipse envisages fundamental rights as prospective in nature. It states that a pre-constitutional law inconsistent with the fundamental rights is not a nullity or void ab initio but only remains unenforceable i.e., remains in a dormant state for the sake of past transactions (i.e before the present constitution  came into being) and for those who don’t have fundamental rights (eg. Non-citizens)

APPLICABILITY

Applicable to Post-Constitutional Laws

Only Applicable to pre-constitutional laws

RELEVANT CASE LAWS

  • AK Gopalan v. State of Madras (AIR 1950 SC 27)
  • Bombay v. Balsara (AIR 1951 SC 318)
  • Kihota Hollohan v. Zachithu (AIR 1993 SC 412)
  • Bhikaji Narayan v. State of MP (AIR 1955 SC 781)
  • Keshava Madhava Menon v. State of Bombay (AIR 2951 SC 128)
  • State of Gujarat v. Ambica Mills (AIR 1974 SC 1300)

 

 


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