The story of Indian Independence Act, Fundamental Rights and Doctrine of Eclipse

Lord Wavell, the Viceroy of British India for a brief period (1946 to January 1947) backed the Cabinet Mission Plan, the plan didn’t favour the two nation theory but proposed a single country with grouping of states: the provinces having more power with a weak central government. Interestingly the professors of partition: the Muslim league accepted it since it served their purpose of having separate province on the basis of religion with tremendous powers except Communication Defence and Foreign Affairs. The Indian National Congress refused this Plan. Grouping of provinces on communal grounds was not acceptable in order to secure unity and harmony. The United India with string federal character was on the cards seen, but the Cabinet Mission failed in Jan 1947 and Lord Wavell was replaced by Lord Mountbatten: A self-promotional man, with magnetic charm and not much intellectual diet. Nehru’s Congress hoped that Mountbatten shall take further their plan, but destiny had something else in store. The Indian Independence Act based on the “Mountbatten Plan” came into existence on 3rd June 1947. Mahatma Gandhi, after coming of Mountbatten plan said “Cabinet Mission plan should be in force in better and spirit”. But it was too late, now there would be two nations based on religious lines and the British suzerainty over the princely states would lapse. Which meant that these 565 princely states were free to join either Hindustan or Pakistan or remain as independent states. With the advent of Mountbatten, Congress found it too late to resurrect to the cabinet plan. The Congress, reluctantly, changed its goal of United India and accepted the partition while comforting itself with a thought that Pakistan was not viable and would be compelled by time to reunite with India.

The series of signature meetings on instruments of accession were conducted, yet when Indian Independence Act, 1947 came into force on 14th-15th August 1947, it wasn’t clear in many areas, especially in Punjab and Bengal, whether they form part of India or Pakistan With provinces and princely states coming together, a strong Centre was required to check the fissiparous tendencies of the states.

It was also, later, culminated into the 16th Amendment to the Constitution in 1963, after the Indo-China war where a political party which had a feat to form first non-congress state govt. (Communist Party of India) actively advocated for China in the war, that the Constitutional oath was amended to include the words: “I will uphold the sovereignty and integrity of India”

The Act of 1947 provided that the British shall withdraw from the sub-continent, but when? Why 15th August? Mountbatten was asked this question in an interview and he answered that “I was asked about the deadline and I had no clue, so I just said 15 August, as it was to be the 2nd anniversary of the surrender of Japan in World War II.” With this random answer of a viceroy, India was partitioned and that too in haste. The Constituent Assembly, which started its work on 6th December 1946 to promulgate a constitution for a United India (even the logo of the Constituent assembly had a map of the undivided India), was now entasked to formulate the constitution for India.

One of the most important parts of the Indian Constitution is the Part III which enshrines the Fundamental rights.

The Indian delegation first pressed for inclusion of bill of rights or fundamental rights, when they attended round table conference in England. The same wasn’t included in GOI Act, 1935.Even if it was considered at that time, there wasn’t any will or means to enforce it

When the Constitution for the Republic of India was to be framed, the precedent of the United States was followed and Fundamental Rights were enacted in the Constitution itself.

Fundamental Rights -Those rights which are human possessed by virtue of being a human These are inalienable rights, natural rights/human rights.

Most of the Fundamental rights are enforced against the state except Articles 17, 23 and 24 i.e Abolition of Untouchability and Right against exploitation. The part III can be enforced against law and executive action which violated the fundamental rights.

H.M. Seervai : By defining “ State And law” widely, the founding father of constitution ensured that fundamental rights operate over widest fold.

In AK Gopalan[1], Shastri, J observed “The people of India in delegating to the legislature ,Executive and judiciary their respective powers, reserved to themselves certain fundamental rights, so called because they had been retained by the people and made paramount to the delegated powers.

The Fundamental rights, spreading into 26 articles, are: Rights to Equality, Freedom, Against exploitation, Religion and Conscience, Cultural and Educational, Property rights and Constitutional remedies

There are some Fundamental Rights which are conferred upon only the citizens of India, eg: Protective discrimination under Art 15 and 16, right to freedom of expression and movement under Art. 19, while some Fundamental rights are available to all the persons, eg: Right to life under Article 21 of the Constitution.

Doctrine of implied fundamental rights

It is not necessary that a right to be a Fundamental Right, needs to be there in part III. Social, political, economic changes in country may entail recognition of a new fundamental rights as a F.R. [2]

[1] (1950 ) S.C.R 88

[2] Unnikrishnan V. State of Andhra Pradesh (1993) [The Supreme Court declared Right to education as a Fundamental right under the preview of right to life, although right to education was not explicitly mentioned in part III.]

Article 13 gives teeth to the fundamental rights. Article 13 read with Art. 32 provides judicial review.

Laws in consistent or in derogation to fundamental right

1. Art. 13 (1) states: “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”

Clause (1) is with respect to pre-constitutional law only. Any law which has been into force before the commencement of the Constitution i.e. before 26th January 1950 shall be void[1] as much as they are inconsistent to part III.

2. Art. 13 (2) states: “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”

Clause (2) is with respect to Post-Constitutional laws only. It proscribes the state from making any law which shall be in contravention to part III and if any such law is enacted, it shall be void ab initio (born dead) as much as they are inconsistent to part III.

Judicial review as part of basic structure

H.R. Khanna J in Kesavananda Bharati [2] observed “As long as some fundamental rights remain in Constitution, the power of judicial review has to be exercised to see that guarantee afforded by the right is not contravened”

Dowling,J[3] puts this concept as “Study of constitutional law may be described a study of judicial review doctrine in action.”

When we study the concept of judicial review, which shall be dealt in great detail in the later classes, it is clear that any law laid down by legislature or delegated legislation by the executive as far as its inconsistency with Part III shall be void [13(1)] or Void ab initio [13(2)], but whether Article 13 deals with law made under Article 142 r/w 141 by the Judiciary? There are two views pertaining to it. First view relies upon Art. 137 which says that the Supreme Court shall have power to review any judgment pronounced or order made by it, while the second view is that when a law is laid down under 142 r/w 141, judicial mind is inherent in it so it can’t be violative of part III ex-facie, and moreover Art 13 doesn’t provide for Judge made law as law under clause (3), so Art 13 won’t come into picture. In Ashok Kumar Gupta V. Union of India (1997), the obiter was in coherence with the second view, while in Lala Ram V. Supreme Court of India (1967), it was held that rules laid down by the Supreme Court under Art. 145 is subject to judicial review and it has to satisfy the test of Art. 13.

Doctrine of Eclipse

Eclipse means to ‘Hide’ behind something, a shadow or veil over an entity which hides the latter for a while. Once this shadow is removed, that entity shall be ad free from blemishes or infirmity.
The doctrine can be understood clearly through the case of Bhikaji vs Madhya Pradesh[4] :

In 1948, the state government excluded private players from motor transport business and monopolised it. This became, with the advent of Constitution in 1950, inconsistent with Art 19 (1)(g). Since the law was pre-constitutional law, it became void as per Art. 13 (1). In 1951, Art 19 (1)(g) was amended so as to permit the state government to monopolise any business. Now the question was, whether the 1948 law has become dead with the coming of Constitution in 1950 or whether it went into a coma state and can be revived after 1951 amendment? It was held that, “The doctrine of Eclipse envisages that a pre-constitution law inconsistent with a Fundamental Right is wiped out from the statute book after the commencement of the Constitution.” It just goes into a morbid stat and is not dead. The law in question was eclipsed for a time being by the relevant FR. The law would cease to be unconstitutional and become Revived and enforceable once that FR is amended.

The Doctrine of Eclipse is essentially applies only to the pre-constitutional law and not post constitutional laws sine the pre constitutional law in contravention to part III become void while any post constitutional law becomes void-ab-initio i.e. born dead and born dead can’t be revived. An exception to this general proposition is case of L.Jagannath V. Authorised officers[5] where an Act was declared violative of of Art. 14, 19 and 31(2). Since it was a post constitutional law, it was void ab initio but the law was put in IX Schedule on the Constitution so it became out of purview of judicial review and was revived as doctrine of eclipse was applied to it. This is the the last such case, in the knowledge of the author, where doctrine of eclipse was applied to a post-constitutional law. It shall remain the last because of the fact that any law kept in IX schedule after 24th April 1973 (Date of pronouncement of Kesavananda Bharati judgement) shall not be immune from judicial review, [6]hence it can’t be revived after applying doctrine of eclipse

[1] See Doctrine of Eclipse to understand the relevance of the tem void in clause 1 of Art. 13

[2] (1973) 4 SCC 225

[3] United States Supreme Court

[4] AIR 1955 SC 781

[5] AIR 1972 SC 425

[6] For detailed analysis, refer to I.R. Coelho V. State of Tamil Nadu (2007) 2 SCC1. {The discussion shall be dealt while dealing with “Amendment to the Constitution” topic.

In case of any suggestion, edition or contention please feel to contact the author Nitish Rai Parwani at nitimanthan@gmail.com