In the Supreme Court of India Civil Appellate Jurisdiction Equivalent citations: 1951 AIR 128, 1951 SCR 228 Appellants Keshavan Madhavan Menon Respondent State of Bombay Decided on 22nd January 1951 Bench J. Kania, C.J; Chandrasekhara Aiyar; K. Mukherjea; C. Mahajan; Patanjali Sastri; K. Das; Saiyid Fazl Ali, Judge
It was the time when India was adapting herself with the Constitution of India. There were many cases that deal with the interpretation of the constitutional provisions by challenging the statutes created by the Indian Parliament and various state Legislatures. But the most important confusion that existed is the continuance of pre-existing laws. Most of the laws were created by the Alien government with the aim of repressing the Indians and have effective control over Indians. With the advent of the constitution, the Indian citizens were guaranteed with the fundamental rights. The language of the constitution and judicial review is constructed in such a way that no existing law will be struck down as a whole but only to the extent of its inconsistency. The question arose whether the fundamental rights and freedom guaranteed to each citizen has retrospective effect or prospective effect and this issue was dealt effectively in the present case which is critically analysed.
Constitution and Statutory Provisions
- 6 of General Clauses Act, 1897.
- 38 of Interpretation Act, 1889 (England).
- § 2(6), 2(10), 15 and 18 of Indian Press (Emergency Powers) Act, 1931.
- 1 of the Press and Registration of Books Act (XXV of 1867).
- Articles 13, 19(1)(a), 19(2), 252, 254, 357, 372 and 395 of Constitution of India.
The appellant is the Secretary of People’s Publishing House Ltd., a registered Company under Indian Companies Act. In September, 1949, a pamphlet was published under the name Railway Mazdooran ke Khilaf Nai Zazish in Bombay. It was contended that the appellant has committed an offence under the Indian Press (emergency Powers) Act, 1931. The prosecution proceedings were initiated against the petitioner. But the trial court decided that it involves a question of law. During the pendency of the case proceedings, the Constitution was enacted and came into force on January 26, 1950. On 3rd march, 1950, the petitioner filed a written statement submitted that the definition of newssheet as given in § 2(6) of the Indian Press (Emergency Powers) Act, 1931 and §§ 15 and 18 thereof were ultravires. It is void in the view of Article 19(1)(a) and Article 13 and hearing of the case should be stayed till the High Court of Bombay decides that question of law.
It was followed by a petition filed in the High Court on March 7, 1950, under Article 228 of the Constitution. It was also prayed by the petitioner that the Hon’ble Court must declare §§ 15 and 18 to be read with § 2(6) and (10) create liability for restrictive measure for a citizen and they are ultravires of Article 19(1)(a) and are therefore void and also to acquit the petitioner. The charge was framed by Chief Presidency Magistrate.
The charge was framed by Chief Presidency Magistrate on 23rd March, 1950
The trial court dealt with the case but held that the court cannot deal with the present charge as it involves a question of law.
The petition was filed by the appellant before the Hon’ble High Court of Bombay under Article 228 of the Constitution and two important questions rose,
Issues which are in challenge
1. Whether § 15(1) and 18(1) read with definitions contained in §§ 2(6) and 2(10) of Indian Press (Emergency Powers) Act, 1931 were inconsistent with Article 19(1)(a) read with Article 19(2)?
2. Even if it is inconsistent with the proceedings commenced under § 18(1) before commencement of Constitution be proceeded with?
The Bombay High Court held that the word ‘void’ used in Article 13(1) of the Constitution of India connotes the meaning ‘repealed’ which attracts § 6 of General Clauses Act in consonance with Article 367 of the Constitution of India. The proceedings initiated before the commencement of the Constitution will not get affected and dismissed the petition filed by the petitioner.
The High Court disposed the case of in favour of the respondent and with the strength of the certificate for appeal from the Hon’ble High Court, the petition was filed before the Hon’ble Supreme Court to render a final judgment. The Apex Court has upheld the judgment of the High Court dealing with the same issues framed by the Hon’ble Bombay High Court.
Contentions of the Appellant:
- The Pamphlet was published as a ‘book’ within the meaning of § 1 of the Press and Registration of Books Act (XXV of 1867), and the provisions have been duly complied with.
- Indian Press (Emergency Powers) Act, 1931 is one of the repressive laws enacted by the Alien (British) Government to stifle the liberty of Indians, especially of Indian press.
- With the advent of independence and enactment of Constitution, Indians guaranteed themselves with fundamental rights of free citizens of Democratic Republic.
- Article 13 brushed aside all laws inconsistent with the fundamental rights including existing laws.
- It is against the essence of Constitution that the citizens being persecuted by law which is against the Fundamental Rights and that law must be declared void.
- The counsel contended that it was not necessary for him to declare the law void ab initio or all past and closed transactions to be reopened but after commencement of the Constitution those inconsistent laws must not be looked at for any purpose especially for framing a charge or punishing a free citizen. References has also been made to Articles 249(3), 250, 357, 358 and 369 of the Constitution of India, 1950 to differentiate between the meanings of “void” and “repeal”.
- As the void law cannot be utilized further, the pending proceedings must fall to ground.
Contentions of the Respondent:
- The pamphlet was a ‘newssheet’ within the meaning of § 2(6) of the Indian Press (Emergency Powers) Act, 1931.
- The pamphlet has been published without authority that is required under § 15(1) of the Act.
- The petitioner has committed an offence under § 18(1) of the Act.
- The argument claimed to be the spirit of the Constitution cannot be guided by the sentiment and emotion but based on the language of the Constitution itself.
- Article 372(2) allows the President to repeal or modify a law. Similarly his Excellency can modify the Indian Press (Emergency Powers) Act, 1931. The repeal on whole or part will attract § 6 of the general Clauses Act, which saves the proceedings existed before unless an express provision is mentioned.
- It is therefore clear that the idea of preservation of part inchoate rights or liabilities and pending proceeding to enforce the same is not foreign or abhorrent to Constitution of India. Thereby, the Court rejects the application that the existing law’s persecution is against the spirit of the Constitution.
- The court interprets that under Article 13, a law will be held void to the extent of inconsistency and all laws will have prospective operation till it is made expressly retrospective. The court held that the language of Article 13 did not allow retrospective operation and will not render the law void ab initio or for all purposes.
- The fundamental rights came into force from the date of commencement of Constitution only and inconsistency of existing laws must arise only from that date of creation of fundamental rights and not before.
- The inconsistent laws are only void to the extent of conflict with the fundamental rights and the voidness of the existing law is limited to the future exercise of Fundamental Rights. Such laws exist for the past transactions and for enforcing all the rights and liabilities accrued before the date of Constitution.
- The position is similar to that of the temporary laws and in case of temporary laws, no further proceedings are allowed unless it is saved by the statute itself through saving clause or some other saving laws.
- There is no fundamental right that a person shall not be prosecuted and punished for an offence before the Constitution came into force.
- The person gets fundamental rights through constitution by Article 19. Here the freedom of speech and expression is conferred to appellant through Article 19(1)(a).
- Before Constitution, no citizen will be having the right or freedom Article 13 will come into play only when Article 19(1)(a) comes into lay but at the time of persecution, the appellant did not have this freedom of speech and expression and thus Article 13 will not apply here.
- He cannot claim protection or escape the consequence of his act or any principles of construction of statutes.
- There is no need for saving clause or assisting legislations like General Clauses Act or Interpretation Act of England as Article 13 did not have the language to give retrospective effect to the fundamental rights.
- It should be equally repugnant to the spirit of the constitution that men who have already been convicted under such repressive law before the commencement of the Constitution should not be in jail.
- If an offender has not been persecuted and punished before the expiry of temporary statute and in absence of saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time.
- Thus it was on this principle the express provision was made in several articles for saving things done or omitted to be done under the expiring laws.
- It is up to the government or legislation to make changes in laws but not the courts. The courts have power only to give relief to the inchoate rights and liabilities of the existing claims.
- The principle of Qua repeal is of artificial nature created by English Parliament and Courts and it is not the result of reason and justice.
- Whereas General Clauses Act and Interpretation Act us found on reason and justice and mostly into the rule of convenience.
- Rule of Justice, Equity and good conscience has become a rule of common law in the country and should be applied even to cases where statutes become void by reason of being repugnant to the Constitution.
- The dissenting opinion is rendered by Judges Saiyid Fazl Ali and B. K. Mukherjea.
- It was recorded by the Hon’ble judges that: “When the statute is repealed it must be considered as if it never exists in records of Parliament and for actions which were commenced, prosecuted and concluded while it was an existing law. It must be considered except as to the transactions that dwell in the past and closed as if it had never existed”.
- For a repealed Act, the law ceases to operate, by its own limitation or repeal at any time before judgment and thus no judgment can be given on the law that ceased to exist.
- If a statute giving a special remedy is repealed without a saving clause in favour of pending suits, then all suits must stop where the repeal finds them.
- The law must be considered as if it was never passed and no further proceeds to be allowed, except for the purposes of those actions or suits which were commenced, persecuted and concluded while it was an existing law.
- In England, to avoid the trouble of including a saving clause in every repealed Act (even America faced similar interpretation problems), the Parliament of England included § 38(2) in Interpretation Act, 1889 that said
a) Previous operation of the Act will not be questioned including investigations, legal proceedings or remedies.
b) These Proceedings can be instituted, continued or enforced in respect of rights, liabilities and penalties under the repealed Act.
- 6 of General Clauses Act is similar to § 38 of the Interpretation Act of England and unless the laws are repealed § 6 will not apply and thus the earlier principles established through Courts will apply.
- The words used in Article 13 are “shall be void” replacing “shall stand abrogated” which show that the intention of the constitution is not to repeal the Act as a whole. The intention is explicit on referring to Articles 252, 254, 357, 372 and 395 of the Constitution of India, where the word repealed is used.
- The word void is used only in two Articles 154 and 13. The existing laws dealt with matters before the commencement of Constitution. From the date of force of Constitution of India, some laws ceased to be effectual and they can no longer be applied.
- In absence of saving clause to govern Article 13(1) it can be so construed as to permit offences commenced prior to 26th January 1950 to be punished. The appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused.
The present case is not overruled till now and it is held to be a valuable precedent and many cases were decided based on the ratio delivered in this case. Since it is the first case to deal with the effect of the fundamental rights, the subsequent legislations were also made keeping into the ratio and obiter of this judgment into consideration. Though there is difference of opinion among the judges, all of them had consensus of mind regarding the prospective effect of the fundamental rights. This construction of Article 13 proved to be effective and in the following the importance of judicial review is appreciated by making it a basic structure of Constitution.
The court held that the fundamental rights are having only the prospective effect and if given retrospective effect it will affect the functioning of the pre-existing laws. Most importantly, the pre-existing laws cannot be struck down for only reason that it was created before the enactment of the constitution. The intention of each and every statute must be taken into consideration along with its impact before declaring the law as invalid and unconstitutional. The language of Article 13 which is giving the power of judicial review to the Constitutional courts and allows them to declare a law invalid only to the extent of unconstitutionality. Moreover, in case of criminal laws, the provisions relating to the benefits of the offender is given retrospective effective but here there was no existence of fundamental right when the pre-existing law was in force. Thus the court held that the persecution of the appellant is valid and it is dealing with the inchoate rights, liabilities and penalties that are mentioned in the Indian Press (Emergency Powers) Act.
1. Kay v. Goodwin, (1830) 6 Bing. 576.
2. Craies on Statute Law (4th, pp. 347-348)
3. Surtees v. Ellison, (1829) 9 B. & c. 752.
4. Crawford’s Book on “Statutory Construction”, pp. 599-600.
5. Wall v. Chesapeake and Ohio Ry Company, 125 N.E. 20.
6. General Clauses Act, 1897.
7. Interpretation Act, 1889.
8. Constitution of India, 1950.