Doctrine Of Laches, Doctrine of Waiver and Doctrine of Eclipse

This article has been written by GAURANG TAKKAR from Army Institute of Law, Mohali. It was written by him in due course of internship under Legal Soch Foundation.

1. The Doctrine of Laches-

This doctrine is based on the notion that only those who are conscious and vigilant about their rights and duties will be assisted and helped by courts and will not help those who are snoozing over their rights and are indolent. Under this doctrine, a party is held guilty when they cause an unreasonable delay in approaching the court to resolve their grievance. Unlike the limitation act, which provides specific time limits to be adhered to while filing complaints and payment and appeal, etc., under various acts, there is no explicit mention of a time duration that would be considered reasonable. It depends on the substance and the circumstances prevailing. The delay if justified by some valid reasons can be accepted.

In the case of V. Bhasker Rao vs State of Andhra Pradesh, the list of seniority was released twelve times during eight years showing the respondent above the petitioner but it wasn’t challenged. Thus, the court held that writ cannot be filed under Article 32 of the Indian Constitution challenging this status now. In the case of Trilok Chand Motichand vs H.B. Munshi, it was suggested that having a time limit to file a writ under Article 32 should not be fixed and the issue should be dealt with case-wise because the facts and circumstances of all the cases are different. The whole issue is based on why the delay happened, which Fundamental right is violated, and the remedy for the same.

2. The Doctrine of Waiver-

According to Laski, Rights are “those conditions of social life without which no man can seek, in general, to be himself at his best”. Every person possesses certain legal rights bestowed upon them by some statute, contract, or the constitution. The thing which is of major concern is whether these rights can be waived off by an individual and the answer to this is “YES”. The Doctrine of waiver is defined under Black’s Law Dictionary as a voluntary renunciation of a right by an individual. This doctrine is based on the principle that an individual knows what is best for him and is the best judge of his own. In India, rights given to an individual by way of a contract or statute can be waived off but not the ones specified by the constitution of India.

In the case of Behram Khurshed Pesikaka vs The State of Bombay, it was observed that the fundamental rights given to an individual through the constitution of India are placed on a higher pedestal than other rights provided to him/her and thus, they cannot be waived off. The court said that “They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy”. In the case of Olga Tellis vs Bombay Municipal Corporation also, similar observations were made.

3. Doctrine of Eclipse

Article 13(1) of the Indian Constitution deals with the doctrine of eclipse. The article states that any law which came into being before the commencement of the constitution must be in sync with the Fundamental rights given under part III of the constitution. If any law is deemed inconsistent with the Fundamental rights, then it will be struck off from the statute but if there is a part of the law that is not consistent with the provisions of the constitution, then the whole act won’t be void but that part only.

This doctrine suggests that the law which is inconsistent with the rights under Part III is not declared null and void. Instead, it remains in a dormant state. The term eclipse means that such laws are not considered dead but remain in a dormant state because those can be applied against non-citizens who are not bestowed with fundamental rights under the constitution.

The doctrine emerged from the landmark judgment of Bhikhaji vs State of M.P. In this case, the MP government formulated an act before the commencement of the constitution in 1950 dealing with motor transport. The law was challenged under the right to freedom to practice any profession, occupation company or business, etc. under Article 19(1)(g). Later on, an amendment was made to this act and thus the apex court held that as the law is updated by the amendment, the law will remain valid according to the doctrine of eclipse. There are some elements of this doctrine which are as follows –

• The law must be enacted before the constitution came into effect

• There must be a conflict between the law and the fundamental right

• The law stays in a dormant condition

• Any future amendment will make the law in question valid.

This doctrine doesn’t apply to laws formulated after the commencement of the constitution. In the case of Deep Chand vs State of Uttar Pradesh, the apex court held that any law framed after 26th January 1950 if conflicts with the fundamental rights will be deemed void ab initio (void from the very beginning).