Name – Utkarsh Mishra

College – Symbiosis Law School, Noida

Course – BBA LLB(Hons.)

Year – 2ND year (4TH Semester)

Plagiarism Status – 3%
Bhikaji Narayan Dhakas v. State of M.P(AIR 1955 SC 781)

The case was important for the Indian Judiciary on the following purview. The British Empire had
just left the country and there were ample of laws that were unconstitutional and did not concede
with the letter and spirit of the constitution since it was a relatively new piece of law and was made
kept in mind the welfare of the people and making India a better country, a notion that was pretty
absent during the time of the British Empire which focused only on mutilating the economy of the
nation and exploiting our resources.

Background of the Case

“Judicial Review” is defined as the implication of judicial restraint on the Executive and
Legislative organs of the Government. This concept has been derived from the theory of limited
government and the theory of two laws- the ordinary and the Supreme (in this case the Constitution
which prevails over any laws made by the law-making bodies and declares them void and this is
done by an authority which is the judiciary).

The case focused on the Laws that were enacted before the existence of the Constitution and are
known by the term, “Pre-Constitutional” and were dormant on the ground that they were invalid
on the grounds of the Constitution and until they were taken up for scrutiny by the judiciary or
made valid through an amendment in the constitution. The case, did not although focus on the
validity of Post-Constitutional Laws which were discussed in another case (State of Gujarat v. Shri
Ambika Mills). This was a Constitutional bench headed by Chief Justice Sudhi Ranjan Das.

Facts of the Case

1. By an amendment made in 1947 in the MV Act in 1947, the provincial government had
been authorized in taking over the entire operation of road transport in the province wither
to compete with the private operators or creating a monopoly and making them leave the
market.
2. On the commencement of The Constitution on 26th January, 1950 the law obviously came
into conflict with the Article 19(1)(g) which gave the citizens the right to practice any trade,
occupation or Business. But this Article was curtailed by the First Amendment on 18th
 June, 1951 which amended the Article 19(6) of the constitution and gave the power to the
government to acquire partial or complete monopoly over any trade or business.
3. The State Government, thereby exercising its powers under the pre-constitutional law had
made a notification in the gazette on 4th February, 1955. This notification was impugned
on the basis that the pre-constitutional law had become void and as such there was no law
under which the notification could be issued.
4. The SC decided that the 1947 law, which had become void on 26th January 1950 got
revivified on 18th June, 1951 with the birth of the First Amendment Act.

Contentions put forward by both the parties

The Petitioners

Sri Narain Andley and Rajinder Narain, appearing on behalf of the Petitioners contended that the
C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948) which amended the Motor
Vehicles Act, 1939 (Central Act IV of 1939) was unconstitutional as it was void under Art. 13(1)
since it was inconsistent with Article 19(1)(g) and Art. 31(2) of the Constitution. Reliance was
placed on Shagir Ahmad v. The State of U.P. & Others, [1955] 1 S.C.R. 707 and Behram Khurshed
Pesikaka v. The State of Bombay, [1965] 1 S.C.R. 613. It was, notwithstanding, battled in the
interest of the petitioners that the impugned Act being void under Art. 13(1) was dead and couldn't
be revivified by any ensuing amendment of the Constitution. It must be re-enacted.

The Respondents

T. L. Shevde, Advocate-General of Madhya Pradesh (I. N. Shroff, with him) appeared on behalf
of the respondents. It was contended that in spite of the fact that as a result of the said decision the
impugned Act was rendered void, the Constitution (First Amendment) Act, 1951, and the
Constitution (Fourth Amendment) Act, 1955, had the impact of removing the irregularity and the
Amending Act (III of 1948) ended up as being operative once more. The Respondents relied on
Keshava Madhava Menon v. The State of Bombay [1961] S.C.R. 288.

Judgement
The bench in a 3:2 Judgement held that the case Shagir Ahmed v. The State of U.P was inapplicable
and the contentions relied upon by the respondents were well-founded. The Judgement in Keshava
Madhava Menon v. The State of Bombay [1961] S.C.R. 288 was well relied up on and it was stated
that Article 13(1) rendered an act void only up to the inconsistency and if that inconsistency was
removed then the act is valid. Any law is thus considered dormant but not dead and thus it was
within the shadow of the Fundamental Rights and therefore, the doctrine of eclipse was coined.

Overview of the judgement

This judgement formulated the Law of Doctrine of Eclipse and reflected upon the following issues:
-

1. Laws violating the Fundamental Rights remain in a moribund condition. It is overshadowed

by the Fundamental Rights and remain dormant, inactivated but is not dead.
2. Such laws exist for all past transactions. The rights or liabilities that arise before the
constitution came into force remain intact.
3. Such laws are into existence for persons that are not covered by the Fundamental Rights,
i.e., non-citizens. This is only in respect of citizens that these rights remain inactivated or
dormant.
4. Such laws can always be revived by an amendment to the constitution. If any of the laws
were inconsistent with any part of the constitution, they can be revivified by a constitutional
amendment and would come in force and become effective. For example – The First
Amendment made the law that was questioned in the judgement free from all blemishes
and infirmities.
5. Cases like Deep Chand v. State of Uttar Pradesh AIR 1959 SC 648 and Mahendra Singh
Jain v. State of Uttar Pradesh AIR 1963 SC 1019 referred to this judgement and laid down
that any post-constitutional law that violates the fundamental rights is dead from the point
of inception or considered still-born, as stated by the judiciary. Thus, the doctrine of Eclipse
is not applicable for a Post-Constitutional Law and is only considered for a Pre-
Constitutional Law.

Concepts Highlighted
The primary highlighted concept was the Doctrine of Eclipse. The application of this concept
was also updated (the ambit of Eclipse Doctrine was expanded) and used in two other cases.

In State of Gujarat v. Ambica Mills (1974) 4 SCC 656, it was held that the post-constitutional
law that is inconsistent with fundamental rights is not an absolute nullity but can be enforced
on non-citizens who are not protected by fundamental rights.

Also, in Dulare Lodh v. 3rd Additional District Judge, Kanpur 1984 AIR 1260 the Court
indirectly applied the doctrine of Eclipse to a post-constitutional law when a landlord got a
degree of eviction from a tenant under a post-constitutional law. But due to some amendment
the degree could not be executed. After 13 years, another amendment to the same law was
passed with retrospective effect which made the original decree executable and thus the decree,
which was lying dormant was revived again.