Article 13, and the Doctrine of Eclipse

In one line

A pre-constitutional law inconsistent with a fundamental right is not dead but overshadowed, and it revives if the shadow is removed.

In the wording a student can write in an exam: article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution shall, in so far as they are inconsistent with the provisions of Part III, be void to the extent of such inconsistency. Article 13(2) forbids the State to make any law taking away or abridging the rights conferred by Part III and makes any such law void to the extent of the contravention. Article 13(1) is not retrospective, so an act done before the commencement remains punishable in principle, and it does not wipe out the inconsistent law entirely: such a law remains operative for past transactions and against persons who cannot claim the fundamental right, and it is merely eclipsed, so that if the inconsistency is later removed by a constitutional amendment the law revives and operates again from the date of the amendment.

The text

Clause (1) deals with pre-constitutional laws: all laws in force in the territory of India immediately before the commencement, in so far as they are inconsistent with the provisions of Part III, shall to the extent of such inconsistency be void.

Clause (2) deals with post-constitutional laws: the State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall to the extent of the contravention be void.

Clause (3) defines the terms. Law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usage having the force of law in the territory of India. Laws in force includes laws passed or made by a Legislature or other competent authority before the commencement and not previously repealed, notwithstanding that any such law or part of it may not then be in operation either at all or in particular areas.

Clause (4), inserted by the 24th Amendment in 1971, provides that nothing in the article applies to any amendment of the Constitution made under article 368.

Two things to notice at once. The words to the extent of appear in both operative clauses, which is where severability and eclipse come from. And clause (3)(a) makes the article apply to subordinate legislation, orders and even custom, so a detention order or a rule made under a detention statute is itself law for this purpose.

The first question: is article 13(1) retrospective?

Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128.

Facts. A pamphlet was published in September 1949. The Bombay authorities treated it as a news sheet within the Indian Press (Emergency Powers) Act 1931, published without the authority required by section 15(1), and prosecuted the petitioner under section 18(1). The prosecution was pending when the Constitution came into force on 26 January 1950, and the petitioner contended that the definition of news sheet and sections 15 and 18 were void in view of article 19(1)(a), so that the prosecution could not go on.