Keshavan Madhava Menon vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 22 January 1951

Coram: Hiralal J. Kania, Saiyid Fazal Ali, Mehr Chand Mahajan, N. Chandrasekhara Aiyar, B.K. Mukherjea

In the matter of Keshavan Madhava Menon versus the State of Bombay, the Supreme Court delivered its judgment on the twenty-second day of January, 1951. The petitioner was Keshavan Madhava Menon and the respondent was the State of Bombay. The opinion was authored by a bench comprising Chief Justice Hiralal J. Kania, and Justice Saiyid Fazal Ali, Justice Mehr Chand Mahajan, Justice N. Chandrasekhara Aiyar and Justice B. K. Mukherjea. The decision was reported in the 1951 All India Reporter at page 128 and in the 1951 Supreme Court Reports at page 228, and it has been cited in numerous subsequent reports, including those of 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, 1959, 1960, 1962, 1963, 1964, 1970, 1972, 1973, 1974, 1979, and others, reflecting its wide influence on later jurisprudence.

The central issue addressed by the Court concerned the operation of Article 13(1) of the Constitution of India, 1950, particularly whether that provision operated retrospectively to invalidate a law that was in force before the Constitution commenced. The specific context involved a prosecution for contravention of the Indian Press (Emergency Powers) Act, 1931, sections 15 and 18, which had been instituted while the Constitution was still pending enactment. The petitioners argued that the Constitution, having declared laws inconsistent with fundamental rights void, should render the earlier statute ineffective even for prosecutions that began before the Constitution’s commencement. The Court examined whether there existed any statutory provision that saved pending proceedings and considered the effect of the expiry of temporary statutes compared with the operation of Article 13(1).

In delivering its opinion, the Court held that Article 13(1) of the Constitution did not render existing laws that conflicted with fundamental rights void ab initio. Rather, the provision operated only to make such laws ineffectual and void for the purpose of exercising fundamental rights from the date the Constitution came into force. Consequently, the provision had no retrospective effect on actions that were completed before the Constitution’s commencement. The Court explained that if an act had been committed before the Constitution began to operate, in violation of a law that was valid at that time, a prosecution that had been initiated before the Constitution’s commencement could continue, and the accused could be punished under that law even after the Constitution had taken effect. The Court further clarified that on the expiry of a temporary statute, no further proceedings could be taken under that statute unless the statute itself expressly saved pending proceedings. Where an offence had been committed under a temporary statute, and proceedings had been initiated but the offence had not been prosecuted and punished before the statute’s expiry, the absence of a saving clause meant that the pending prosecution could not be continued after the statute lapsed.

When a temporary statute expires, a prosecution that has not yet been completed cannot be continued merely because time has passed; the lapse of the statute terminates the proceeding.

The operation of Article 13(1) of the Constitution is fundamentally different from the mere expiry of a temporary law or from the repeal of a law by a later enactment. Article 13(1) does not automatically nullify a law retrospectively, and it does not operate in the same way as the simple cessation of a statute’s force.

A court must discern the meaning of the Constitution by examining the actual words used in the text. The court cannot allow personal beliefs or desired interpretations of the Constitution’s spirit to override the literal language of the constitutional provisions when the language does not support those beliefs.

In the opinions of Justices Fazl Ali and Mukherjea, acting in opposition to the prevailing view, it was held that although Article 13(1) has no retrospective effect and therefore does not disturb past transactions that are completed or rights that have already vested, the article does affect matters that were still unsettled at the moment the Constitution came into force. Specifically, for proceedings that were pending at the time the Constitution became effective and that had not yet reached a final judgment, a law declared void by Article 13(1) could not be applied to those proceedings.

The proper inquiry, the Court explained, is to examine the state of the law at the moment a question arises as to whether a person has committed an offence. If, at that point, the law that defined the conduct as an offence has become completely ineffective and meaningless, then the prosecution cannot validly frame a charge, and the accused cannot be lawfully convicted.

The Bombay High Court’s earlier decision was affirmed by the Supreme Court.

The appeal was filed under Article 132(1) of the Constitution against a judgment and order dated 12 April 1950 issued by the High Court of Judicature at Bombay, where Chief Justice Chagla, together with Justices Bavdekar and Shah, had delivered the decision. The appeal was entered as Case No. IX of 1950. Counsel for the appellant was A.S.R. Chari, while the respondent was represented by M.C. Setalvad, Attorney-General for India, assisted by G.N. Joshi.

The judgment of the Supreme Court was delivered on 22 January 1951. The bench comprised Chief Justice Kania, and Justices Patanjali Sastri, Das, and Chandrasekhara Aiyar. Separate judgments were authored by Justices Das, Mahajan, and Fazl Ali, with Justice Mukherjea concurring with Justice Fazl Ali.

At all relevant times, the petitioner—who is the appellant before this Court—served as the Secretary of People’s Publishing House, Limited, a company incorporated under the Indian Companies Act and having its registered office at 190-B, Khetwadi Main Road, Bombay. In September 1949, a pamphlet titled “Railway Mazdooron ke khilaf Nai Zazish” was alleged to have been published in Bombay by the petitioner in his capacity as the company’s secretary.

The petitioner’s counsel maintained that the pamphlet should be classified as a “book” within the meaning of Section 1 of the Press and Registration of Books Act (XXV of 1867), and asserted that all the procedural requirements of that Act had been complied with. In contrast, the authorities of the Bombay Government argued that the pamphlet fell within the definition of a “news-sheet” under Section 2(6) of the Indian Press (Emergency Powers) Act, 1931, and therefore its publication without the permission required by Section 15(1) of that Act constituted an offence.

In the matter at hand, a prosecution was instituted against the petitioner under section 18(1) of the Indian Press (Emergency Powers) Act, 1931, because the authorities considered the pamphlet to be a “news sheet” within the meaning of section 2(6) of that Act. The prosecution was lodged in the Court of the Chief Presidency Magistrate, Bombay, and was recorded as Case No. 1102/P of 1949. While these criminal proceedings were pending, the Constitution of India came into force on 26 January 1950. On 3 March 1950, the petitioner filed a written statement in which, among other submissions, he contended that the definition of “news sheet” contained in section 2(6) of the Indian Press (Emergency Powers) Act, together with sections 15 and 18 of the same Act, were beyond the legislative competence and therefore void, because they infringed the freedom of speech guaranteed by article 19(1)(a) read with article 13 of the Constitution. The petitioner also prayed that the trial be stayed until the High Court resolved the constitutional question.

Subsequently, on 7 March 1950, the petitioner instituted a petition in the Bombay High Court under article 228 of the Constitution. The petition sought the transmission of the record of Case No. 1102/P of 1949 to the High Court, a declaration that sections 15 and 18, read with the definitions in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, were ultra vires article 19(1)(a) and consequently void and inoperative, and an order of acquittal. During the pendency of this petition, the Chief Presidency Magistrate framed a formal charge against the petitioner on 23 March 1950, invoking section 18 of the Press (Emergency Powers) Act.

The High Court heard the article 228 petition on 12 April 1950 before a Bench comprising Chief Justice Chagla, and Justices Bavdekar and Shah. The Bench considered two questions: first, whether sections 15(1) and 18(1), together with the definitions in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, were inconsistent with article 19(1)(a) read with clause (2) of that article; and second, assuming an inconsistency, whether proceedings that had begun under section 18(1) before the Constitution’s commencement could nevertheless be continued. The Court deemed it unnecessary to rule on the first question and limited its decision to the second. It interpreted the word “void” in article 13(1) to mean “repealed,” thereby invoking section 6 of the General Clauses Act, which, by virtue of article 367, applied to constitutional interpretation. Consequently, the Court concluded that criminal proceedings already pending on the date the Constitution came into effect were not disturbed, even if the underlying Act later proved inconsistent with the fundamental right to freedom of speech and thus became void under article 13(1). Relying on this reasoning, the High Court answered the second question affirmatively and dismissed the petitioner’s application.

The Court answered the second question in the affirmative and accordingly dismissed the petitioner’s application. The petitioner thereafter filed an appeal before this Court, relying upon a certificate that had been issued by the High Court under article 132(1) of the Constitution. Counsel for the appellant argued that the Indian Press (Emergency Powers) Act of 1931 was one of several oppressive statutes that had been enacted by a foreign government specifically to suppress the freedom of Indian subjects, especially the freedom of the Indian press. He contended that with the attainment of independence the people of India began to breathe freely, and that the Constitution they adopted expressly guaranteed fundamental rights to the citizens of a democratic republic. According to counsel, article 13(1) of the Constitution swept away all remnants of subordination imposed by the former colonial rulers and declared any law inconsistent with those fundamental rights to be void as if such law had never been enacted. On that basis, counsel submitted that it was contrary to the spirit of the Constitution to permit a free Indian citizen to continue to be subject to prosecution under a retrograde statute that, by virtue of its inconsistency with fundamental rights, must be declared void. Counsel further maintained that it was unnecessary to argue that such inconsistent statutes were void ab initio or that all past and concluded transactions could be reopened. Rather, he asserted that from the date the Constitution came into force, namely 26 January 1950, any law that had become void could not be invoked for any purpose, and certainly could not be used as a basis for framing a charge or imposing punishment on a free citizen. Because a void law could no longer be employed, counsel argued that any prosecutions pending under that law must collapse. Allowing pending proceedings to continue under a statute that had become void at the moment the Constitution commenced, he said, would extend the operation of a law that had, by constitutional provision, ceased to have effect, which ran counter to the Constitution’s spirit. While such an argument appeals to sentiment and emotion, the Court noted that the true spirit of the Constitution must be discerned from its language. A belief about the Constitution’s spirit cannot prevail where the constitutional text does not support it. Moreover, article 372(2) empowers the President to adapt or modify existing statutes through repeal or amendment. Nothing prevents the President, exercising the authority granted by that article, from repealing, for example, the entire Indian Press (Emergency Powers) Act or any portion thereof.

The Court observed that the Constitution empowered the President, under article 372(2), to amend or repeal any existing law, including a portion or the entirety of the Indian Press (Emergency Powers) Act, 1931. If the President exercised that power, the repeal would instantly invoke section 6 of the General Clauses Act, which preserved any criminal prosecutions that were already pending at the moment of repeal, unless the repealing legislation expressly provided otherwise. In other words, pending prosecutions under the Indian Press (Emergency Powers) Act would continue despite the Act’s repeal, because the law itself protected those ongoing proceedings. The Court noted that this principle of saving past inchoate rights, liabilities, and pending actions is fully consistent with the Constitution and not at all foreign or abhorrent to its scheme. Consequently, the Court could not accept the counsel’s argument that the “spirit of the Constitution” barred continuation of proceedings that originated under a law that had become void after the Constitution came into force. Moreover, the Court reasoned that if it were contrary to the Constitution’s spirit to allow such prosecutions to proceed, the same reasoning would make it equally repugnant to allow persons already convicted under that repressive law before the Constitution’s commencement to remain incarcerated. Therefore, the Court concluded that article 13(1) must be interpreted strictly according to its textual language, following established rules of constitutional construction, without being swayed by any assumed or imagined spirit of the Constitution.

Turning to the text of article 13(1), the Court reiterated that it reads: “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.” The Court explained that, as a general rule, statutes are presumed to operate prospectively unless they are expressly made retrospective or such effect is necessarily implied. There was nothing in article 13(1) that indicated an intention to apply the provision retrospectively; on the contrary, the language pointed clearly in the opposite direction. The Court highlighted that Part III of the Constitution, titled “Fundamental Rights,” introduced a set of rights for the first time, rights that did not exist before the Constitution’s commencement. Accordingly, article 13(1) declared that any pre-existing law that conflicted with these newly created fundamental rights would be void only to the extent of that conflict. Because the fundamental rights became operative only from the date the Constitution came into force, the point of inconsistency between an old law and those rights could arise only from that same date. Thus, the Court concluded that article 13(1) operates prospectively, rendering inconsistent laws void only from the commencement of the Constitution onward and not applying a retrospective nullity to the statutes themselves.

In the judgment, it was observed that the fundamental rights contained in Part III of the Constitution became effective only from the date the Constitution itself came into force. Consequently, any question of whether pre-existing statutes conflicted with those rights could arise only from that same date. The Court therefore concluded that Article 13(1) could not be given a retrospective operation; its effect was entirely prospective. The Court further clarified that Article 13(1) did not render every inconsistent pre-existing law void from the beginning or for all purposes. Rather, the provision declared that any such law was void only to the extent of its inconsistency with the newly created fundamental rights. In other words, after the Constitution commenced, no existing law could be allowed to obstruct the exercise of any fundamental right. The voidness of an inconsistent law was therefore limited to its future application against the exercise of those rights. The Court emphasized that Article 13(1) could not be read as erasing the entire operation of the inconsistent statutes or removing them altogether from the statute book, for such a reading would impart a retrospective effect, which the provision expressly lacked. Accordingly, the laws continued to govern past transactions and to enforce rights and liabilities that had accrued before the Constitution’s commencement.

The Court noted that counsel for the appellant cited Articles 249(3), 250, 357, 358 and 369, which contain explicit saving clauses for actions performed under statutes that had expired. Each of those articles dealt with temporary statutes and, as is well known, the expiry of a temporary statute precluded any further proceedings under it unless the statute itself saved pending proceedings. The Court explained that, for example, if an offence had been committed under a temporary statute and prosecution had not been completed before the statute’s expiry, the absence of a saving provision would bar continuation of the prosecution after the expiry. That principle underlay the express saving provisions in the mentioned articles. However, because Article 13(1) was wholly prospective and not intended to have any retrospective effect, there was no need to insert a saving clause in it. The effect of Article 13(1) was therefore distinct from the effect of the expiry of a temporary statute or the repeal of a law by a subsequent statute. The provision merely nullified the inconsistent portion of a law insofar as it conflicted with the exercise of fundamental rights after the Constitution’s commencement, without undoing the law’s operation for past acts.

Article 13 (1) operates only to nullify or render ineffectual any existing law that is inconsistent with the exercise of fundamental rights, but this operation begins only on or after the date when the Constitution commenced. The provision does not apply retrospectively; consequently, an act performed before the Constitution came into force, even if it violated a law that later becomes void with respect to fundamental rights, is not erased by the declaration of inconsistency. To hold that the earlier act were extinguished would give the law a retroactive effect, which the Constitution does not intend. No fundamental right exists that shields a person from prosecution and punishment for an offence committed prior to the Constitution’s commencement. Thus, for past acts the offending law continues to exist, although it no longer applies to future exercises of fundamental rights. In view of this reasoning, the Court concurred with the High Court’s determination on the second question, albeit reaching the conclusion on different grounds. Because the High Court’s conclusion was accepted, the Court saw no need to re-examine the reasons that the High Court had articulated. Accordingly, the appeal was dismissed as it failed to establish any error in the earlier judgment.

Justice Fazl Ali expressed dissent from the majority opinion, stating that he could not agree with the view adopted by his colleagues. He observed that the facts were straightforward and would clarify the issue to be decided. On 9 December 1949, the appellant was arrested and a prosecution was instituted against him under section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) before the Court of the Chief Presidency Magistrate at Bombay. The prosecution alleged that the appellant had published an Urdu pamphlet titled “Railway Mazdoorun Ke Khilaf Nai Sazish,” which was a news-sheet within the meaning of section 2(6) of the Act, and that it had been issued without the authority required by section 15(1). Accordingly, the appellant was charged with an offence punishable under section 18(1). While the criminal proceeding was still pending, the Constitution of India commenced on 26 January 1950, after which the appellant contended that sections 2(6), 15 and 18 of the Act were void because they conflicted with article 19(1)(a) of the Constitution, and therefore the case could not continue. Pursuing this argument, the appellant filed a petition under article 228 of the Constitution in the Bombay High Court, seeking a record of the case and a declaration that sections 15 and 18, read with sections 2(6) and 2(10), were void and inoperative, and that he should be acquitted. That petition was heard before a Full Bench of the Bombay High Court.

In addressing the question presented, the Court together with the learned Judges forming the Bench proceeded on the premise that the statutory provisions challenged by the appellant conflicted with the fundamental freedom protected by article 19(1)(a) of the Constitution of India. The Court articulated that article 13(1) effectively nullified any existing legislative provisions that were inconsistent with any of the constitutional fundamental rights. Consequently, the Court explained that, by virtue of section 6 of the General Clauses Act, which is incorporated for the purpose of constitutional interpretation through article 367, any criminal or civil proceedings that were already underway at the time of that inconsistency were not to be disturbed. Following the dismissal of the appellant’s petition before the High Court, the appellant pursued a further remedy by filing the present appeal before the Supreme Court. During the oral arguments, counsel for both sides devoted considerable attention to the legal consequences that arise for cases pending before the courts when a statute is either repealed or ceases to exist because its temporary tenure has expired. The Court referred to the treatise Craies on Statute Law, where the author described the general rule concerning a temporary Act: unless the Act itself contains a special saving provision, the expiration of such a temporary law terminates all authority to institute new proceedings under it, and the law loses any further effect. Accordingly, offences committed against a temporary statute must be prosecuted and punished before the statute expires; once the statute has expired, any existing prosecution automatically comes to an end. The Court noted that this principle had been endorsed by the Federal Court in the case of J.K. Gas Plant Manufacturing Co., (Rampur) Ltd., and Others v. King Emperor, which adopted the same view. Regarding the effect of a repeal, the Court cited the passage from Craies summarising the position that prevailed in England before the 1889 Interpretation Act: Lord Tenterden, speaking in Surtees v. Ellison, observed that a repealed Act must be regarded, except for transactions that are already concluded, as if it had never existed. Justice Tindal, in Kay v. Goodwin, expanded this observation by stating that the repeal of a statute erases it completely from the parliamentary record as though it had never been enacted, and it may be regarded as nonexistent except for actions that were initiated, prosecuted, and concluded while the statute remained in force. The Court also referred to Crawford’s work on Statutory Construction, which set out the American perspective that a repeal ordinarily divests any nascent rights that arose under the repealed legislation and destroys any accrued causes of action based upon it. Thus, a repeal, unless it contains a saving clause, generally extinguishes any proceedings, whether they have not yet begun or are pending at the time the repealing law takes effect, provided those proceedings have not reached a final judgment.

According to the author, a repeal that lacks a saving clause will extinguish any legal proceedings, whether those proceedings have not yet been initiated or are pending at the time the repealing Act comes into force, provided that they have not been prosecuted to a final judgment, and consequently such a repeal prevents the creation of any vested right (Pp. 599-600). In a footnote supporting this proposition, the author refers to several cases, first noting that in Cleveland, etc., R. Co. v. Mumford (Ind.) the repeal of a statute during trial barred the rendering of a judgment. The footnote further observes that a legal conviction for an offence cannot occur unless the conduct was contrary to law at the moment it was committed, and similarly a judgment cannot be entered unless the relevant law was in force at the time of both the indictment and the judgment. Consequently, if the law ceases to operate either by its own limitation or by repeal at any point before a judgment is delivered, no judgment may be rendered. For this reason, it has become customary to include a saving clause in repealing legislation so that the repeal operates only prospectively and does not disturb proceedings that were already underway. The footnote cites (1) (1830) 6 Bing. 576 and (2) 197 N.E. 826 as authorities for these principles.

The author then reproduces a passage from the decision in Wall v. Chesapeake & Ohio Ry., Company, stating that it is well settled that if a statute providing a special remedy is repealed without a saving clause in favour of pending suits, all such suits must terminate at the point the repeal takes effect. The passage explains that if final relief has not been granted before the repeal becomes operative, that relief cannot be granted thereafter. It further adds that when a case is on appeal and the law changes during the pendency of that appeal, the appellate court must decide the case according to the law that is in force at the time its decision is rendered. The effect of the repeal, according to the passage, is to erase the repealed statute completely, as if it had never been enacted, and the law must be treated as non-existent except for actions or suits that were commenced, prosecuted and concluded while the statute was still in force. Pending judicial proceedings based on a repealed statute cannot continue after the repeal, and this rule remains in effect until the matter reaches a final judgment from the court of last resort. At that stage, the highest court must align its decision with the law that exists at the moment of its pronouncement, and it may reverse a judgment that was correct in the subordinate tribunal if, during the appeal, a statute essential to that judgment has been absolutely repealed (P. 601). The author concludes by noting that historically in England it was common practice to embed in most repealing statutes a clause that saved anything duly done or suffered under the repealed law.

To avoid the need for inserting a saving clause in almost every repealing statute, section 38(2) of the Interpretation Act 1889 was enacted. That provision states that, unless a contrary intention appears, a repeal does not affect the previous operation of the repealed enactment or anything duly done or suffered under it, and it allows any investigations, legal proceedings or remedies to be instituted, continued or enforced with respect to rights, liabilities and penalties created under the repealed Act as if the repealing Act had never been passed. The commentary by Crawford, quoted in his book, observes a similar difficulty that arose in the United States and explains how American legislatures responded: “Due to the numerous troublesome problems which constantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall not affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute.” In India, the earliest legislative effort to guard against the ordinary legal effect of a repeal is found in section 6 of Act I of 1868. That provision was later elaborated by section 6 of the General Clauses Act 1897, which mirrors the language of section 38(2) of the English Interpretation Act. Consequently, the present position in both India and England is that a repeal no longer produces the drastic effect it once did, because an express saving provision has been inserted in the relevant enactments to counteract that effect. Nevertheless, in situations not covered by the language of the General Clauses Act, the earlier principle continues to operate. The learned Attorney-General conceded that it is doubtful whether section 6 of that Act applies to a repeal by implication, and it is clear that the rule governing the expiry of a temporary statute remains unchanged, since both section 6 of the General Clauses Act and section 38(2) of the Interpretation Act apply only where an Act is repealed. It should be remembered that the soundness of the law consistently applied to cases governed by statutes that have ceased to be in force—whether because they were repealed or expired—has never been questioned, and it cannot be dismissed as an archaic rule peculiar to English common law. This body of law has been articulated by eminent judges in both England and America and rests upon common sense and reason.

In this case the Court observed that the principle articulated in England and in America rests on good sense and reason. The Court then turned to the question of the correct legal effect when a provision of a law that is in force is declared void under article 13(1) of the Constitution. The Court examined the historical record of the Constituent Assembly debates and found that the original draft of the Constitution used the expression “shall stand abrogated” in place of the present wording “shall be void” in article 13(1). During those debates a principal issue was what impact the use of that phrasing would have on proceedings that were pending and on acts that had been duly performed or suffered under the law in question. The Assembly eventually adopted the present form of the article, substituting the words “shall be void” for “shall stand abrogated.” The Court noted that if the latter wording had been retained, it could have been argued that it effected a repeal and therefore attracted section 6 of the General Clauses Act. By abandoning that language the Assembly chose the strongest possible expression, namely “void.” The Court quoted the definition of “void” from Black’s Law Dictionary, third edition, which characterises the term as “null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid.” The Court then surveyed the Constitution and observed that the framers employed the word “repeal” wherever necessary, for example in articles 252, 254, 357, 372 and 395. They also employed terms such as “invalid” in articles 245, 255 and 276, “cease to have effect” in articles 358 and 372, and “shall be inoperative.” The word “void” appears only in article 13(1) and article 154, both of which deal with statutes that are repugnant to a law of higher sanctity. The Court further noted that where the drafters intended to preserve actions already performed or to exempt certain omissions, they used specific saving language, for example in articles 249, 250, 357, 358 and 369. The Court concluded that the careful and precise drafting evident throughout the Constitution discouraged the inference of any unwritten saving provision into article 13(1). Moreover, the Court was not persuaded that a declaration of voidness under article 13(1) should produce a milder effect on legal transactions than the ordinary repeal or expiration of a statute. Accordingly, the Court held that the ordinary, strong meaning of the term “void” and its contextual usage governed the effect of article 13(1).

The Court observed that the meaning of the word “void” as employed in the Constitution could not be disregarded. It noted that the framers of the Constitution evidently disapproved of any law that conflicted with the fundamental rights guaranteed by the Constitution. In the Court’s view, it would be contrary to the framers’ intention to hold that, after the Constitution came into force, statutes which were inconsistent with fundamental rights would continue to be treated as valid and effective for certain purposes, as if the Constitution had never been enacted. The Court found it difficult to read such a meaning into the language of article 13 (1). It affirmed, without doubt, that article 13 (1) does not operate retrospectively; therefore, transactions that have already been completed and rights that have already vested remain untouched. However, the Court turned to matters that were still incomplete when the Constitution became effective—proceedings that had not yet been started, or that were pending at the time of the Constitution’s enforcement and had not yet reached a final judgment. On this point, the Court raised the serious question of whether a law that the Constitution has declared completely ineffective can still be applied to such unfinished matters. Relying on principle and on established authority, the Court concluded that a law which has ceased to be effective can no longer be applied. It illustrated this principle with the decision in R. v. Mawgan (Inhabitants) (1888) 8 A. and E. 496, where a petition concerning the non-repair of a highway had been filed under 13 Geo. III, c. 78, s. 24, but the Act was repealed before the case was tried. Lord Denman C.J. observed, “If the question had related merely to the present-ment, that no doubt is complete. But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding.” Littledale J. added, “Do not say that what is already done has become bad, but that no more can be done.” The Court held that this reasoning precisely governed the present case.

The Court noted that counsel had argued that accepting this view would logically require reopening all convictions already recorded and all transactions that were closed. The Court rejected that argument, stating that it would ignore the well-established law that has been accepted for centuries: when a statute is treated as dead, completed transactions cannot be revived, and actions that were commenced, prosecuted and concluded while the statute was in force cannot be reopened. During the arguments, a further question was raised concerning the effect on an appeal that was pending when the Constitution came into force, where the original conviction had been recorded before 26 January 1950. The Court remarked that the law applicable to such a situation was well known and had been correctly summarized by legal authority, indicating that pending judicial proceedings based on a statute cannot continue after that statute has been repealed, and that the rule remains in force until the final judgment of the highest court is rendered. This principle, the Court explained, prevents the revival of judgments that were rendered under a law that has since become inoperative.

The Court noted that the principle governing pending judicial proceedings after a statute has been repealed had been accurately expressed by Crawford. Crawford stated: “Pending judicial proceedings based upon a statute cannot proceed after its repeal. The rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal.” (1888) 8 A. & E. 496. The Court indicated that this rule applies until the highest court renders a final decision, at which point the court must apply the law in force at the time of its decision, and it may set aside a lower-court judgment if the statutory basis for that judgment has been removed by a complete repeal.

At this juncture, the Court said it would briefly consider two points raised by counsel in support of the contrary view. The first point argued that, in the absence of a saving clause governing article 13(1), that article could be interpreted to allow punishment for offences committed before 26 January 1950. The argument was presented in the following manner: the law that conflicted with fundamental rights had been valid up to 25 January, and because article 13(1) was to be construed prospectively rather than retrospectively, every act constituting an offence under the old law remained punishable after 26 January. The Court observed that the same reasoning could be applied to offences under a repealed or temporary statute that had expired, yet such arguments had never succeeded. The essential question, the Court held, was whether a person who had not been convicted before the statute ceased to exist could still be prosecuted under that statute. The answer, historically, had always been negative, and there was no reason to change that approach for a statute that had become void and ineffective. The second point contended that although section 6 of the General Clauses Act might not apply directly, the underlying principle of that section should still be applied. The Court replied that the Legislature, exercising its wisdom, confined section 6 to a very specific situation; while it could have drafted a broader provision, it chose not to. It was well known that similar situations had arisen concerning statutes that had expired or been declared void, yet the Legislature had not provided a specific rule for them. Consequently, the Court found no justification for expanding the clear and definite provision in the manner proposed.

It was observed that the statutory provision could not be expanded in the way that had been attempted. No case was found in which the principle that underlies section 38(2) of the Interpretation Act or section 6 of the General Clauses Act had been invoked or applied. In the matter before the Court, it was necessary to examine the law as it stood at the moment the question of whether a person had committed an offence arose. The Court held that if the law which created the offence had become wholly ineffective and nugatory, then neither could a charge be framed nor could the accused be convicted. Accordingly, the Court stated that, assuming the High Court’s premise was correct, the appellant was entitled to a declaration that he could not be convicted of the offence with which he was charged. The judgment was delivered by Mahajan J. The appellant was identified as the secretary of People’s Publishing House Ltd., Bombay. In September 1949 he published a pamphlet titled “Railway Mazdoorum Ke Khilaf Nai Sazish.” On 9 December 1949 he was arrested and a prosecution was instituted against him in the Court of the Chief Presidency Magistrate at Bombay under section 18(1) of the Indian Press (Emergency Powers) Act (XXIII of 1931). The prosecution was based on the fact that the pamphlet had been published without the authority required under section 16 of the same Act.

On 8 March 1950 an application was filed on the appellant’s behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India, seeking to quash the proceedings. The application contended that sections 16 and 18 of Act XXIII of 1931 were ultra vires Part III of the Constitution and therefore void, and that no prosecution could continue under those sections after the Constitution came into force. The High Court rejected the application, holding that proceedings instituted against the appellant before the commencement of the Constitution could not be affected by the constitutional provisions that became operative on 26 January 1950. Dissatisfied with that decision, the appellant appealed to this Court. The sole question for determination on appeal was whether proceedings instituted under section 18(1) of the Indian Press (Emergency Powers) Act, XXIII of 1931, before the Constitution of India came into force, were affected by the constitutional provisions. The High Court had answered this question in the negative, and the Court expressed agreement with that view. In agreement with the observations of the learned Chief Justice of Bombay, the Court noted that it was hard to accept that the Constituent Assembly intended that, with respect to laws declared void under article 13, all vested rights and all existing proceedings should be disturbed merely because particular statutes ceased to operate due to inconsistency with the Constitution.

In this case the Court observed that the constitutional guarantee of fundamental rights could not be said to operate retrospectively, and no argument was advanced that Part III of the Constitution possessed any retroactive effect. The appellant, at the time he issued the pamphlet in September 1949, did not enjoy any of the fundamental rights later guaranteed by the Constitution, and his conduct plainly fell within the mischief that Section 18 of the Indian Press (Emergency Powers) Act, Act XXIII of 1931, was intended to prevent; consequently he was subject to the penalties prescribed by that provision. Nonetheless, counsel for the appellant, Mr Chari, contended that the wording of Article 13(1) of the Constitution meant that any proceedings that had been commenced before the Constitution came into force could not be carried on after its commencement if the governing law had become inconsistent with the Constitution. To support this proposition he relied on a rule of construction recorded in Maxwell on the Interpretation of Statutes (page 404), which states that when an Act expires or is repealed, it is, unless a contrary provision exists, treated as never having existed except for matters already concluded; thus, if a penal law was broken, the offender could not be punished under it if the law expired before conviction, even though the prosecution had begun while the law was in force. The Court noted that this rule traced its origin to a statement of Chief Justice Tindal in Kay v. Goodwin, wherein the learned Chief Justice observed that repealing a statute obliterates it from the parliamentary record as if it had never been passed, and that it may be regarded as a law that never existed except for actions that were commenced, prosecuted, and concluded while the law was still operative. Under English common law this principle meant that all pending actions and prosecutions had to cease when the repealing statute took effect. The Court then explained that the rule was altered by the Interpretation Act of 1889, section 38, which provides that, unless a contrary intention appears, a repeal does not affect any investigation, legal proceeding—including the initiation of criminal proceedings—or any remedy relating to any right, privilege, obligation, liability, penalty, forfeiture, or punishment, and that such investigations, proceedings, or remedies may be instituted, continued, or enforced, and any penalty or punishment may be imposed as if the repealing Act had never been enacted. A comparable provision exists in India in section 6 of the General Clauses Act of 1868 and 1897. The High Court had held that the provisions of Article 13(1) were analogous to the repeal of a statute and therefore that section 6 of the General Clauses Act applied to the construction of those constitutional provisions; consequently, the Court concluded that the coming into force of the Constitution did not in any manner affect the continuation of the proceedings that had been initiated against the appellant under the law then in force at the time of the pamphlet’s publication.

The Court noted that the operation of the Constitution did not in any manner interfere with the continuation of the criminal proceedings that had been initiated against the appellant under the statute that was in force at the time the pamphlet was published, relying on the authorities (1) 180 E.R. 1403; (1830) 6 Bing. 576. It was contended by counsel that the High Court erred in applying section 6 of the General Clauses Act to the construction of article 13(1) of the Constitution because the provisions of that article were not comparable to a repeal and did not amount to a repeal of the existing law. He argued that only the legislature possessed the power to repeal a law, whereas article 13 vested the judiciary with the authority to declare any law inconsistent with the Constitution to be void. In his view this judicial power exceeded the effect of a legislative repeal, for a declaration of voidness rendered the offending statute entirely inoperative from the date the Constitution came into force, namely 26 January 1950, and consequently no legal action could be taken under that statute thereafter. Accordingly, he maintained that the court could not frame a charge under a statute that had been declared void, nor could it pass a conviction based on such a statute. Counsel further asserted that a statute inconsistent with the Constitution became dead upon the Constitution’s commencement and that a dead statute could not support any legal action. He emphasized that the freedoms guaranteed by Part III of the Constitution must not be compromised by maintaining prosecutions or actions under laws enacted by a foreign authority that conflicted with those freedoms. It was argued that several statutes which the Constitution intended to be declared void were those originally passed by a foreign government to subjugate the people of the country, and that persisting with prosecutions under those statutes after the Constitution’s commencement would be wholly contrary and repugnant not only to the text of the Constitution but also to its spirit. It was admitted that transactions finally concluded under such statutes could not be reopened, but that prosecutions and actions still pending should be terminated, because any further proceeding would be illegal and contrary to the freedoms guaranteed by the Constitution. Reference was made to articles 249, 250, 357, 358, and 369 to illustrate that the constitutional scheme intended that proceedings begun under existing laws that became inoperative on the appointed date should not be allowed to continue thereafter.

In this matter the Court observed that although the Constitution sometimes used phrasing to show that existing proceedings should continue after 26 January 1950, Article 13 contained no such saving words; consequently it must be presumed that the Constituent Assembly did not intend that actions taken under laws which became inoperative on that date should be allowed to proceed thereafter. The Court reproduced Article 13(1) in full: “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.” The freedom relevant to the appellant is found in Article 19(1)(a), which provides: “All citizens shall have the right to freedom of speech and expression.” The Court accepted that after 26 January 1950 there had been no infringement of the appellant’s freedom of speech or expression, but in September 1949 the appellant had not enjoyed either complete freedom of speech or full freedom of expression. The Court explained that Article 13(1) becomes operative only in relation to the freedom guaranteed by Article 19(1); it does not declare any law void in isolation from the existence of the fundamental rights set out in Part III. Accordingly, a citizen must first possess a fundamental right before he can ask a court to declare a law inconsistent with that right void; if the citizen does not possess the right, he cannot seek such a declaration. The appellant, the Court noted, was not in possession of any fundamental right on the day he published the pamphlet, and the question before the Court was whether he could invoke the constitutional rights that became effective on 26 January 1950 to escape the consequences of his earlier act on any principles of statutory construction. Counsel for the appellant argued that the rules applicable to repealed statutes were not applicable here, whether those rules derived from the common law of England, the Interpretation Act, or the General Clauses Act. Those rules, the counsel said, pertain to statutes that have been expressly repealed or that have ceased to operate by the mere passage of time. The Court held that none of those rules could be applied to the construction of a provision such as Article 13(1) of the Constitution, which is framed in a distinct constitutional language. Moreover, beyond the rule of construction that governs repealed or temporary statutes, the Court was not made aware of any other rule of construction that would render a person who committed an offence while an Act was in force unpunishable after the Act’s termination. The Court indicated that considerations of convenience as well as principles of justice and reason would guide its further analysis.

In this case the Court observed that, on principles of justice and reason, penalties that were imposed under a law that was in force at the time an offence was committed must continue to operate even after that law has ceased to exist, so that persons who violated its provisions may still be punished thereafter. The Court further noted that individuals who, while a statute was in effect, had acquired rights under that statute could not be disadvantaged by a later declaration that the statute would become inoperative from a specified date. Regarding the repeal of a statute, the Court referred to the view of Tindal C.J. that repeal removes a law completely from the parliamentary record as if it had never been enacted; however, that common-law rule has been displaced by statutory provisions and therefore it is difficult to apply that rule on any sentimental basis to statutes that are declared void or are said to have no effect after a certain date. The Court explained that the word “void” does not have a greater impact on a statute than the word “repeal”. Under the common-law rule, a repeal operates retrospectively on past transactions in the absence of a saving clause or of provisions such as those found in the Interpretation Act, 1889, or the General Clauses Act, 1897. By contrast, a statutory provision that declares an existing law to be void to the extent of its repugnancy from a particular date does not operate retrospectively and cannot affect prosecutions or actions that are already pending under that law. Consequently, the Court held that in such a situation there is no need to introduce a saving clause, nor is there any requirement for assistance from legislative instruments like the Interpretation Act or the General Clauses Act. To hold that a prospective declaration that a statute is void would affect pending cases would amount to giving that declaration an indirect retrospective operation, a result that the Court considered to be inconsistent with the clear language used in the various articles of Part III of the Constitution. The Court found merit in the Attorney-General’s submission that the wording of article 13(1) of the Constitution clearly demonstrates an intention not to give any retrospective effect to the provisions of Part III, and that a declaration that laws repugnant to Part III are void should operate only from 26 January 1950. According to the Court’s opinion, an existing statute, even after a court declares it void, remains on the statute book until 25 January 1950 and continues to exist thereafter, but any of its provisions that are repugnant to the fundamental rights guaranteed by the Constitution cannot be given effect. Thus, the effect of article 13(1) is purely prospective and applies only to freedoms that are infringed by the State after the Constitution has come into force.

The Court observed that the provisions of Part III of the Constitution do not reach back to nullify acts that were committed before the Constitution came into force and that fell within the scope of the law then applicable. The Court noted that the citation made by counsel for the petitioner to various constitutional articles that contain saving clauses was of limited assistance. It explained that a saving clause is required only when a statutory provision is intended to operate retrospectively and the legislature wishes to preserve the effect of past actions against that retrospective operation. Conversely, when a provision is clearly drafted not to have retrospective effect, there is no need to introduce a saving clause. The constitutional articles referred to by counsel were described as provisions that, absent a saving clause, would have been given a retrospective character under the usual principles of statutory interpretation. The Court further regarded the petitioner’s contention—that the framers of the Constitution could not have intended that prosecutions initiated under statutes enacted by a former foreign authority, which now infringe the fundamental freedoms guaranteed in Part III, should continue after the nation attained independence and became a democratic republic—as initially plausible. However, after further consideration, the Court concluded that this line of reasoning appealed more to emotion than to logical analysis and was not grounded in any established rule of statutory construction.

Applying the accepted principles of statutory construction, the Court held that a law which expressly lacks any retrospective operation cannot affect pending prosecutions or actions, and a Constitution that is not retrospective in its operation likewise cannot interfere with prosecutions that were lawfully commenced for offences completed under the law that was in force at the time of the act. The Court indicated that the remedy for the resulting incongruity and the relief required in such circumstances lies with the executive and the legislature, not with the judiciary. It explained that, if a sedition case originally instituted by an alien government were to continue after the Constitution’s commencement, the court is not empowered to refuse to try the case or to impose a merely symbolic sentence by interpreting the Constitution as having retrospective effect. Instead, the Republic’s government or its legislature may, by executive or legislative measures, bring an end to such undesirable proceedings. Moreover, such action can not only terminate pending prosecutions but also provide relief to individuals who are still serving sentences imposed under the alien-government sedition statutes. Finally, the Court remarked that it would be unreasonable to deny relief to offenders whose cases have been delayed beyond 26 January 1950, thereby preventing the imposition of punishment for violations of statutes that have become inconsistent with the Constitution.

The Court observed that it was not appropriate for the judiciary to allow punishments to continue against persons whose sentences had already been imposed under statutes that had been enacted solely to sustain foreign rule. In the Court’s view, those situations and the earlier case involving sentences passed under similar legislation were alike, and the appropriate remedy lay not with the courts but with the executive branch of the Republic. The Court then considered the argument presented by counsel for Mr Chari, who contended that, on the Constitution’s commencement on 26 January 1950, every proceeding that had been instituted under laws that later became repugnant to, and inconsistent with, the Constitution should be halted. The Court warned that accepting that contention would produce absurd results, a point to which Mr Chari himself conceded. For example, if an individual had been convicted of sedition or of an offence under one of the safety Acts—provisions that the Constitution later declared repugnant—and if that person’s appeal against the conviction was still pending before the High Court, Mr Chari’s view would deny the Court any jurisdiction to hear the appeal because the underlying law would be void. Consequently, the Court would be powerless to grant relief even where the conviction had been erroneous. The Court further explained that, just as a court cannot frame a charge or convict a person under a law that is inconsistent with the Constitution, it likewise lacks authority to continue any proceeding for the accused’s benefit under such a law. During the arguments, extensive emphasis was placed on the interpretation of the term “void.” It was argued that, in its broadest sense, “void” meant that a law declared void was void ab initio—that is, it was defective from the moment it was enacted. If that expansive meaning were adopted, every law that existed on 26 January 1950 and that Article 13(1) subsequently declared void because of its incompatibility with the Constitution would be considered invalid from the time of its passage, even though individuals subject to it did not enjoy fundamental rights at that time. Counsel for Mr Chari sought to equate this wide definition of “void” with the meaning attributed to “repeal” by Chief Justice Tindal in the cited case. While acknowledging the contributions of the eminent judges who shaped English common law during the early British era, the Court respectfully remarked that the doctrine of “repeal” as developed by those judges was artificial. The Chief Justice’s dictum that a repeal completely erases a statute from parliamentary records, as if it had never been enacted, was, in the Court’s opinion, based on an extended interpretation that exceeds the ordinary dictionary meaning of the word. The Court noted that when a statute has been in force for a long period—say, fifty years—people have inevitably suffered penalties under it and have acquired rights pursuant to it.

In the Court’s view, when a statute has been in force for a long period, during which individuals have either been punished under it or have acquired rights based on it, it would be unrealistic to claim that the statute is entirely erased from existence upon its repeal, as if it had never been enacted by Parliament. Such a claim would disregard the concrete realities that have arisen from the statute’s operation. A more reasonable and just approach, according to the Court, is to acknowledge that the law was valid and effective at the time of its passage, but that, from the date of its repeal, it no longer produces legal effects. The Parliament, however, retains the authority to stipulate that a repealing enactment shall operate retrospectively, and it may also define the extent of that retrospective operation, thereby allowing past transactions to be impacted to the degree that the repealing provision expressly provides.

The Court explained that the common-law rule developed by English judges, which treated repeal as a complete obliteration of the earlier law, was not consistent with reason and justice. Consequently, the legislative practice emerged whereby each repealing statute included a saving clause that protected existing transactions from being disturbed by the repeal. This practice was ultimately codified when the English Interpretation Act of 1889 abolished the common-law rule. In India, a comparable provision was introduced in 1868 through section 6 of the General Clauses Act, mirroring the English Interpretation Act. For more than eighty years, Indian courts have applied this rule of construction, which holds that past transactions—whether completed or ongoing—cannot be affected by the repeal of an earlier statute or by the commencement of a new one. The Court held that the rule embodied in the General Clauses Act and the English Interpretation Act aligns better with reason, justice, and practical convenience, and therefore should be preferred over the earlier common-law rule. Nevertheless, the Court observed that, in the present case, it was unnecessary to invoke either the common-law rule or the General Clauses Act, because the language of article 13 itself provides a sufficient answer to the issue. The Court also referred to the rule of construction applicable to temporary statutes, noting that under English law a statute that expires cannot be used as a basis for new actions after its expiry unless its provisions clearly indicate a contrary intention, while actions completed while the statute was in force remain unaffected. This principle, the Court found, is logical, consistent with reason and justice, and does not raise retrospective or prospective concerns when a statute naturally ceases to exist.

The Court observed that when a statute was limited in duration and its intended effect was that actions performed under it should continue, such actions were allowed to continue after the statute’s natural expiry; otherwise, actions would not continue. It held that any rule concerning the construction of such statutes did not apply to interpreting the Constitution of India, and therefore referencing that rule was irrelevant for the decision. The Court also referred to the American rule of construction for statutes declared void as repugnant to the United States Constitution. It noted that under that rule a statute that is repugnant to the Constitution is void from its inception and any act done under it is also void and illegal. American courts had set aside convictions obtained under such unconstitutional statutes by issuing appropriate writs. The Court stated that when a statute is void from its birth, any act, whether completed or incomplete, is wholly illegal and the affected person must receive some form of relief. However, the Court said this rule did not apply to laws that existed and were constitutional under the Government of India Act, 1935. It added that for any law enacted after 25 January 1950 that is repugnant to the Constitution, Indian courts must follow the same principle as in America, and convictions under such a law must be set aside using powers granted by the Constitution. The only rule of construction relevant to article 13 was the rule for determining whether a statute had retrospective operation. Applying the well-known canons of construction, the Court concluded that article 13 was not intended to have any retrospective effect; instead its wording indicated that it recognized the validity of existing laws up to the Constitution’s commencement and even thereafter, except to the extent of their repugnancy to any provision of Part III. Accordingly, article 13 could not affect any past transactions, whether complete or incomplete. The Court referred to article 372(2), which empowered the President to adapt existing laws to the Constitution by amendment, repeal, or adaptation. It noted that the President could have repealed the Press (Emergency Powers) Act and aligned it with Part III, and that such repeal would have immediately invoked the General Clauses Act, allowing the pending prosecution to continue.

The Court observed that, had the President exercised the power of repeal granted by Part III of the Constitution, the provisions of the General Clauses Act would have become instantly applicable to that situation, and consequently the prosecution then pending against the appellant would have been required to proceed under those statutory provisions. The Court further noted that if the Constitution, in such a circumstance, envisages the continuation of pending proceedings that were instituted under existing laws, it would be difficult to adopt an interpretation of the wording used in article 13(1) of the Constitution that deviated from the interpretation consistent with that circumstance. By adopting the construction set out by the Court, any incongruous result is avoided. In view of the decision already reached, the Court found it unnecessary to address the alternative submission advanced by the learned Attorney-General, which contended that the term “void” employed in article 13 of the Constitution was synonymous with the word “repeal” and that the drafters had deliberately chosen “void” in order to encompass cases of custom and usage that were also repugnant to the provisions of Part III. The Attorney-General also urged that article 13(1) expressly repealed all laws inconsistent with the Constitution and that the sole function of the courts was to identify which of those laws conflicted with Part III, with the declaration of voidness or repeal arising directly from article 13 itself rather than from any judicial decision. Moreover, the Court held that it was unnecessary to examine the further argument of the Attorney-General that, since 1868, the rule of statutory construction laid down in section 6 of the General Clauses Act, 1868, constitutes a principle of justice, equity and good conscience that has become part of the common law and should therefore be applied even where statutes become void because they are repugnant to the Constitution, despite the express inapplicability of that statute to the construction of article 13(1). For the reasons stated, the Court found no merit in the appeal and accordingly dismissed it. Justice Mukherjea, agreeing wholly with the reasoning of his learned brother Justice Fazl Ali, concurred in both the reasons and the conclusion, and ordered that the appeal be dismissed. The agents for the parties were recorded as P. G. Gokhale for the appellant and P. A. Mehta for the respondent.