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PETITIONER:

KESHAVAN MADHAVA MENON

Vs.

RESPONDENT:

THE STATE OF BOMBAY.

DATE OF JUDGMENT:

22/01/1951

BENCH:

DAS, SUDHI RANJAN

BENCH:

DAS, SUDHI RANJAN

KANIA, HIRALAL J. (CJ)

FAZAL ALI, SAIYID

SASTRI, M. PATANJALI

MAHAJAN, MEHR CHAND

AIYAR, N. CHANDRASEKHARA

MUKHERJEA, B.K.

CITATION:

1951 AIR 128 1951 SCR 228

CITATOR INFO :

MV 1951 SC 253 (30,31)

F 1952 SC 235 (3,5,9,23,24,25)

E 1952 SC 339 (15)

R 1953 SC 156 (16)

D 1953 SC 394 (8)

RF 1954 SC 158 (13)

R 1955 SC 13 (14)

R 1955 SC 123 (34,50,51,65)

R 1955 SC 781 (9)

RF 1956 SC 503 (13)

F 1957 SC 397 (43)

F 1957 SC 540 (25)

F 1958 SC 86 (22)

D 1958 SC 468 (40)

E 1959 SC 149 (45,60,92,93)

F 1959 SC 648 (19,21,23,25,33)

R 1960 SC 862 (15)

R 1962 SC1737 (14)

RF 1963 SC1019 (15,23)

D 1964 SC1284 (18,20)

RF 1970 SC 470 (26)

R 1972 SC 425 (17)

RF 1972 SC2205 (26)

RF 1973 SC1461 (26)

RF 1974 SC1300 (28,30,32,33)

RF 1979 SC 25 (38,40)

RF 1979 SC 602 (6)

ACT:

Constitution of India, 1950, Art. 13 (1)--Whether retro-

spective --Prosecution for contravention of Indian Press

(Emergency Powers) Act, 1931, ss. 15, 18--Constitution

passed during pendency of prosecution--Laws inconsistent

with fundamental rights declared void-Whether prosecution

can be continued--Absence of provision saving pending'

proceedings--Effect of--Expiry of temporary laws or

repeal of laws, and laws becoming void by statutory declara-

tion-Difference--Interpretation--Spirit of the Constitution.

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HEADNOTE:

Held by the Court (KANIA C.J., PATANJALI SASTRI, MEHR

CHAND MAHAJAN, DAS and CHANDRASEKHARA AIYAR JJ.--FAZL ALI

and MUKHERJEA JJ., dissenting)--Article 13(1) of the Indian

Constitution does not make existing laws which are incon-

sistent with fundamental rights void ab initio, but only

renders such laws ineffectual and void with respect to the

exercise of fundamental rights on and after the date of the

commencement of the Constitution. It has no retrospective

effect, and if therefore an act was done before the com-

mencement of the new Constitution in contravention of the

provisions of any law which was a valid law at the time of

the commission of the act, a prosecution for such an act,

which was commenced before the Constitution came into force

can be proceeded with and the accused punished according to

that law. even after the commencement of the new Constitu-

tion.

On the expiry of a temporary statute no further proceed-

ings can be taken under it unless the statute itself saved

pending proceedings and if an offence had been committed

under a temporary statute and proceedings were initiated but

the offender had not been prosecuted and punished before the

expiry of the statute, then in the absence of a saving

clause the pending prosecution cannot be proceeded with

after the expiry of the statute by efflux of time. The

effect of Art. 13(1) is quite different from that of the

expiry of a temporary statute or the repeal of a statute by

a subsequent statute.

A court of law has to gather the spirit of the Constitu-

tion from the language/of the Constitution. What one may

believe or wish to be the spirit of the Constitution cannot

prevail if the language of the Constitution does not support

that view.

229

Per FAZL ALI and MUKHERJEA JJ. (contra)-Though Art.

13(1) has no retrospective operation, and transactions which

are past and closed and rights which have already vested

will remain untouched, with regard to inchoate matters which

were still not determined when the Constitution came into

force, and as regards proceedings which were pending at the

time of the enforcement of the Constitution and not yet

prosecuted to a final judgment, a law which has become void

under Art. 13(1) of the Constitution cannot be applied.

What has to be looked at is the state of the law at the time

when the question arises as to whether a person has commit-

ted an offence, and if it is found that the law which made

the act an offence has become completely ineffectual and

nugatory, then neither can a charge be framed nor can the

accused person be convicted.

Judgment of the Bombay High Court affirmed.

JUDGMENT:

APPELLATE JURISDICTION: Appeal under Art. 132(1) of the

Constitution from a judgment and order dated 12th April,

1950, of the High Court of Judicature at Bombay (Chagla

C.J., Bavdekar and Shah JJ.): Case No. I X of 1950.

A.S.R. Chari, for the appellant.

M.C. Setalvad, Attorney-General for India (G. N.

Joshi, with him) for the respondent.

1951. Jan. 22. The judgment of Kania C.J., Patanjali

Sastri J. Das J. and Chandrasekhara Aiyar J. was delivered

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by Das J. Mahajan J. and Fazl Ali J. delivered separate

judgments. Mukherjea J. agreed with Fazl Ali J.

DAs J.--At all material times the petitioner, who is the

appellant before us, was the Secretary of People's Publish-

ing House, Ltd., a company incorporated under the Indian

Companies Act with its registered office at 190-B, Khetwadi

Main Road in Bombay. In September, 1949, a pamphlet

entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged

to have been published in Bombay by the petitioner as the

secretary of that company. Learned counsel for the peti-

tioner states that the pamphlet was published as a "book"

within the meaning of section 1 of the Press and Registra-

tion of Books Act (XXV of 1867) and that the provisions of

that Act had been duly complied

230

with. The Bombay Government authorities, however, took the

view that the pamphlet was a "news sheet" within the meaning

of section 2 (6) of the Indian Press (Emergency Powers) Act,

1931, and that as it had been published without the authori-

ty required by section 15 (1) of that Act, the petitioner

had committed an offence punishable under section 18 (1) of

the same Act. A prosecution under that Act was accordingly

started against the petitioner in the Court of the Chief

Presidency Magistrate, Bombay, and was registered as Case

No. 1102/P of 1949. During the pendency of the proceedings

the Constitution of India came into force on January 26,

1950. On March 3, 1950, the petitioner filed a written

statement submitting, inter alia, that the definition of

"news sheet" as given in section 2 (6) of the Indian Press

(Emergency Powers) Act, 1931, and sections 15 and 18 thereof

were ultra vires and void in view of article 19(1)(a) read

with article 13 and that the hearing of the case should be

stayed till the High Court decided that question of law.

This was followed up by a petition filed in the High Court

on March 7, 1950, under article 228 of the Constitution,

praying that the record of Case No. 1102/P of 1949 be sent

for, that it be declared that sections 15 and 18 read with

section 2 (6) and (10), in so far as they create liability

for restrictive measure for a citizen, are ultra vires of

article 19 (1) (a)and are, therefore, void and inoperative

and that the petitioner be ordered to be acquitted. During

the pendency of this petition the Chief Presidency Magis-

trate on March 23, 1950, framed a charge against the peti-

tioner under section 18 of the Press (Emergency Powers) Act,

1931.

The petition under article 228 was heard on April 12,

1950, by a Bench of the Bombay High Court consisting of

Chagla C.J. and Bavdekar and Shah JJ. Two questions were

raised before the Bench, namely---

(1) Whether sections 15 (1) and 18 (1) read with the

definitions contained in sections 2 (6) and 2 (.10) of the

Indian Press (Emergency Powers) Act, 1931, were

231

inconsistent with article 19 (1) (a) read with clause (2) of

that article ? and

(2) Assuming that they were inconsistent, whether the

proceedings commenced under section 18 (1) of that Act

before the commencement of the Constitution could neverthe-

less be proceeded with ?

The High Court considered it unnecessary to deal with or

decide the first question and disposed of the application

only on the second question. The High Court took the view

that the word "void" was used in article 13 (1) in the sense

of "repealed" and that consequently it attracted section 6

of the General Clauses Act, which Act by article 367 was

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made applicable for the interpretation of the Constitution.

The High Court, therefore, reached the conclusion that

proceedings under the Indian Press (Emergency Powers)

Act, 1931, which were pending at the date of the commence-

ment of the Constitution were not affected, even if the Act

were inconsistent with the fundamental rights conferred by

article 19 (1)(a)and as such became void under article 13

(1) of the Constitution after January 26, 1950. The High

Court accordingly answered the second question in the af-

firmative and dismissed the petitioner's application.

The petitioner has now come up on appeal before us on the

strength of a certificate granted by the High Court under

article 132 (1) of the Constitution.

Learned counsel appearing in support of this appeal

urged that the Indian Press (Emergency Powers) Act, 1931,

was one of the many repressive laws enacted by an alien

Government with a view to stifle the liberty of the Indian

subjects and particularly of the Indian Press; that, with

the advent of independence the people of India began to

breathe freely and by the Constitution which they gave unto

themselves they took care to guarantee to themselves the

fundamental rights of free citizens of a democratic republic

and that article 13 (1) of that Constitution brushed aside

all vestiges of subordination which the tyranny of the alien

rulers had imposed upon them and declared all

232

laws inconsistent with the fundamental rights to be void as

if they had never been passed and had never existed. It

was, therefore, against the spirit of the Constitution,

argued the learned counsel, that a free citizen of India

should still continue to be persecuted under such a retro-

grade law which, being inconsistent with the fundamental

rights, must be declared to be void. Learned counsel urged

that it was not necessary for him to contend that such

inconsistent laws became void ab initio or that all past and

closed transactions could be reopened but he contended that

on and from January 26, 1950, when the Constitution came

into force such inconsistent laws which became void could

not be looked at for any purpose and far less could they be

utilised for the purpose of framing a charge or punishing a

free citizen. As the void law cannot be utilised any long-

er, the pending prosecutions, according to learned counsel,

must fall to the ground. To permit pending proceedings

under a law which, after the commencement of the Constitu-

tion had become void, to proceed further, after the Consti-

tution has taken effect, is to prolong the efficacy of the

law notwithstanding that it has become void on and from the

date the Constitution came into force and that is against

the spirit of the Constitution.

An argument founded on what is claimed to be the spirit

of the Constitution is always attractive, for it has a

powerful appeal to sentiment and emotion; but a court of law

has to gather the spirit of the Constitution from the lan-

guage of the Constitution. What one may believe or think to

be the spirit of the Constitution cannot prevail if the

language of the Constitution does not support that view.

Article 372 (2) gives power to the President to adapt and

modify existing laws by way of repeal or amendment. There

is nothing to prevent the President, in exercise of the

powers conferred on him by that article, from repealing, say

the whole or any part of the Indian Press (Emergency Powers)

Act, 1931. If the President does so, then such repeal will

at once attract section 6 of the General Clauses Act. In

such a situation all prosecutions under

233

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the Indian Press (Emergency Powers) Act, 1931, which were

pending at the date of its repeal by the President would be

saved and must be proceeded with notwithstanding the repeal

of that Act unless an express provision was otherwise made

in the repealing Act. It is therefore clear that the

idea of the preservation of past inchoate rights or liabili-

ties and pending proceedings to enforce the same is not

foreign or abhorrent to the Constitution of India. We are,

therefore, unable to accept the contention about the spirit

of the Constitution as invoked by the learned counsel in aid

of his plea that pending proceedings under a law which has

become void cannot be proceeded with. Further, if it is

against the spirit of the Constitution to continue the

pending prosecutions under such a void law, surely it should

be equally repugnant to that spirit that men who have al-

ready been convicted under such repressive law before the

Constitution of India came into force should continue to rot

in jail. It is, therefore, quite clear that the court should

construe the language of article 13(1) according to the

established rules of interpretation and arrive at its true

meaning uninfluenced by any assumed spirit of the Constitu-

tion.

Article 13 (1) with which we are concerned for the pur-

poses of this application is in these terms: -

"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."

It will be noticed that all that this clause declares is

that all existing laws, in so far as they are inconsistent

with the provisions of Part II1 shall, to the extent of such

inconsistency, be void. Every statute is prima facie pro-

spective unless it is expressly or by necessary implications

made to have retrospective operation. There is no reason why

this rule of interpretation should not be applied for the

purpose of interpreting our Constitution. We find nothing

in the language of article 13 (1) which may be read as

indicating an

234

intention to give it retrospective operation. On the con-

trary, the language clearly points the other way. The provi-

sions of Part III guarantee what are called fundamental

rights. Indeed, the heading of Part III is "Fundamental

Rights". These rights are given, for the first time, by and

under our Constitution. Before the Constitution came into

force there was no such thing as fundamental right. What

article 13(1) provides is that all existing laws which clash

with the exercise of the fundamental rights (which are for

the first time created by the Constitution) shall to that

extent be void. As the fundamental rights became operative

only on and from the date of the Constitution the question

of the inconsistency of the existing laws with those rights

must necessarily arise on and from the date those rights

came into being. It must follow, therefore, that article

13(1) can have no retrospective effect but is wholly pro-

spective in its operation. After this first point is noted,

it should further be seen that article 13 (1) does not in

terms make the existing laws which are inconsistent with the

fundamental rights void ab initio or for all purposes. On

the contrary, it provides that all existing laws, in so far

as they are inconsistent with the fundamental rights, shall

be void to the extent of their inconsistency. They are not

void for all purposes but they are void only to the extent

they come into conflict with the fundamental rights. In

other words, on and after the commencement of the Constitu-

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tion no existing law will be permitted to stand in the way

of the exercise of any of the fundamental rights. Therefore,

the voidness of the existing law is limited to the future

exercise of the fundamental rights. Article 13(1) cannot be

read as obliterating the entire operation of the inconsist-

ent laws, or to wipe them out altogether from the statute

book, for to do so will be to give them retrospective

effect which, we have said, they do not possess. Such laws

exist for all past transactions and for enforcing all rights

and liabilities accrued before the date of the Constitution.

Learned counsel for the appellant has drawn our attention to

articles 249 (3), 250, 357, 358

235

and 369 where express provision has been made for saving

things done under the laws which expired. It will be no-

ticed that each of those articles was concerned with expiry

of temporary statutes. It is well known that on the expiry

of a temporary statute no further proceedings can be taken

under it, unless the statute itself saved pending proceed-

ings. If therefore, an offence had been committed under a

temporary statute and the proceedings were initiated but the

offender had not been prosecuted and punished before the

expiry of the statute, then, in the absence of any saving

clause, the pending prosecution could not be proceeded with

after the expiry of the statute by efflux of time. It was

on this principle that express provision was made in the

several articles noted above for saving things done or

omitted to be done under the expiring laws referred to

therein. As explained above, article 13 (1) is entirely

prospective in its operation and as it was not intended to

have any retrospective effect there was no necessity at all

for inserting in that article any such saving clause. The

effect of article 13 (1) is quite different from the effect

of the expiry of a temporary statute or the repeal of a

statute by a. subsequent statute. As already explained,

article 13 (1) only has the effect of nullifying or

rendering all inconsistent existing laws ineffectual or

nugatory and devoid of any legal force or binding effect

only with respect to the exercise of fundamental rights on

and after the date of the commencement of the Constitution.

It has no retrospective effect and if, therefore, an act was

done before the commencement of the Constitution in contra-

vention of the provisions of any law which, after the Con-

stitution, becomes void with respect to the exercise of any

of the fundamental rights, the inconsistent law is not wiped

out so far as the past act is concerned, for, to say that it

is, will be to give the law retrospective effect. There is

no. fundamental right that a person shall not be prosecuted

and punished for an offence committed before the Constitu-

tion came into force. So far as the past acts

31

236

are concerned the law exists, notwithstanding that it does

not exist with respect to the future exercise of fundamental

rights. We, therefore, agree with the conclusion arrived at

by the High Court on the second question, although on dif-

ferent grounds. In view of that conclusion, we do not

consider it necessary to examine the reasons of the High

Court for its conclusion. In our opinion, therefore, this

appeal fails, and is dismissed.

FAZL ALI J.--I regret that I cannot agree with the view

which the majority of my colleagues are inclined to take in

this case.

The facts of the case are simple and will bring out the

point to be decided. On the 9th December, 1949, the appel-

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lant was arrested and a prosecution was started against him

under section 18(1) of the Indian Press (Emergency Powers)

Act (XXIII of 1931) in the Court of the Chief Presidency

Magistrate at Bombay for publishing a pamphlet in Urdu

entitled "Railway Mazdoorun Ke Khilaf Nai Sazish." The

prosecution case was that the pamphlet was a news-sheet

within the meaning of section 2(6) of the Act and that since

it had been published without the authority required by

section 1.5(1) of the Act, the appellant had committed an

offence punishable under section 18(1) of the Act. While the

prosecution was pending, the Constitution of India came into

force on the 26th January, 1950, and thereafter the appel-

lant raised the contention that sections 2(6), 15 and 18 of

the Act were void, being inconsistent with article 19(1) (a)

of the Constitution and therefore the case against him could

not proceed. Having raised this contention, the appellant

filed a petition in the High Court at Bombay under article

228 of the Constitution asking the High Court to send for

the record of the case and declare that sections 15 and 18of

the Indian Press (Emergency Powers) Act read with section

2(6) and (10) thereof were void and inoperative and the

petitioner should be ordered to be acquitted. The

petition was heard by a Full Bench of the Bombay High

Court, and the learned Judges constituting the Bench, in

237

deciding the point raised, assumed that the provisions of

the Act impugned by the appellant were inconsistent with the

fundamental right guaranteed by article 19(1)(a) of the

Constitution of India, and held that

article 13(1) had virtually the effect of repealing such

provisions of existing laws as were inconsistent with any of

the fundamental rights and that consequently under section 6

of the General Clauses Act, which is made applicable for the

interpretation of the Constitution by article 367, pending

proceedings were not affected. The appellant's petition to

the High Court having been dismissed, he preferred this

appeal in the Supreme Court.

One of the points discussed elaborately by the learned

counsel appearing for the parties in the course of their

arguments was as to what was the effect upon pending pro-

ceedings when an Act was repealed or when a temporary Act

expired. In Craies on Statute Law, the effect of the expiry

of a temporary Act is stated to be as follows :--

"As a general rule, and unless it contains some special

provision to the contrary, after a temporary Act has expired

no proceedings can be taken upon it, and it ceases to have

any further effect. Therefore, offences committed against

temporary Acts must be prosecuted and punished before the

Act expires, and as soon as the Act expires any proceedings

which are being taken against a person will ipso facto

terminate." (4th Ed., pp. 347-348).

This statement of law by Craies was referred to with

approval and adopted by the Federal Court in J.K. Gas Plant

Manufacturing Co., (Rampur) Ltd., and Others v. King Emper-

or. (1) As to the effect of the repeal of an Act, the fol-

lowing passage from Craies book seems to sum up the legal

position as it obtained in England before the enactment of

the Interpretation Act of 1889 :-

"When an Act of Parliament is repealed," said Lord

Tenterden in Surtees v. Ellison(2) "it must be

[1947] F.C.R. 141 at 166. (2) [1829] 9 B & C. 752.

238

considered (except as to transactions past and closed) as if

it had never existed. That is the general rule." Tindal

C.J. states the exception more widely. He says (in Kay v.

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Goodwin)(1): ,, The effect of repealing a statute is to

obliterate it as completely from the records of the Parlia-

ment as if it had never been passed;and it must be consid-

ered as a law that never existed except for the purpose of

those actions which were commenced, prosecuted and concluded

whilst it was an existing law." (P. 350).

Again, Crawford in his book on "Statutory Construction"

dealing with the general effect of the repeal of an Act

states the law in America to be as follows:---

''A repeal will generally, therefore, divest all incho-

ate rights which have arisen under the repealed statute, and

destroy all accrued causes of action based thereon. As a

result, such a repeal, without a saving clause, will destroy

any proceedings whether not yet begun, or whether pending at

the time of the enactment of the repealing Act, and not

already prosecuted to a final judgment so as to create a

vested right." (Pp. 599-600).

In a footnote relating to the cases which the learned

author cites in support of the above proposition, he adds:--

"See Cleveland, etc., R. Co. v. Mumford (Ind.)(2) where

the repeal of a statute during the trial prevented a judg-

ment from being rendered. Similarly, there can be no legal

conviction for an offence, unless the act be contrary to law

at the time it is committed; nor can there be a judgment,

unless the law is in force at the time of the indictment and

judgment. If the law ceases to operate, by its own limita-

tion or by a repeal, at any time before judgment, no judg-

ment can be given. Hence, it is usual in every repealing

law to make it operate prospectively only, and to insert a a

saving clause, preventing the retroactive operation of the

repeal and continuing the repealed law in force as to all

pending prosecutions, and often as to all violations of the

existing law already committed."

(1) (1830) 6 Bing. 576. (2) 197 N.E. 826.

239

The author then proceeds to quote the following passage

from Wall v. Chesapeake & Ohio Ry., Company (1):--

"It is well settled that if a statute giving a special

remedy is repealed without a saving clause in favour of

pending suits all suits must stop where the repeal finds

them. If final relief has not been granted before the

repeal went into effect, it cannot be after. If a case is

appealed, and pending the appeal the law is changed, the

appellate court must dispose of the case under the law in

force when its decision was rendered. The effect of the

repeal is to obliterate the statute repealed as completely

as if it bad never been passed, and it must be considered as

a law which never existed, except for the purposes of those

actions or suits which were commenced, prosecuted and con-

cluded while it was an existing law. Pending judicial pro-

ceedings based upon a statute cannot proceed after its

repeal. This 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 subordi-

nate tribunal from whence the appeal was taken, if it ap-

pears that pending the appeal a statute which was necessary

to support the judgment of the lower court has been with-

drawn by an absolute repeal." (P. 601).

It is well known that formerly the practice in England

used to be to insert in most of the repealing statutes a

clause saving anything duly done or suffered under the

repealed statutes and any pending legal proceeding or inves-

tigations. Ultimately, to dispense with the necessity of

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having to insert a saving clause in almost every repealing

Act, section 38 (2) was inserted in the Interpretation

Act, 1889, which provides that a repeal, unless the con-

trary intention appears, does not affect the previous opera-

tion of the repealed enactment or anything duly done or

suffered under it and any investigations, legal proceedings

or

(1) 125 N.E.20.

240

remedies may be instituted, continued or enforced in respect

of rights, liabilities and penalties under the ;repealed

Act, as if the repealing Act had not been passed.

Crawford in his book to which I have referred adverts in

these words to a similar difficulty which was experienced in

America and to the manner in which it has been met:

"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 attempt that was made to guard

against the normal legal effect of a repeal is to be found

in section 6 of Act I of 1868. This provision was further

elaborated by section 6 of the General Clauses Act of 1897

which is on the same lines as section 38 (2)of the Interpre-

tation Act of England. The position therefore now in India

as well as in England is that a repeal has not the drastic

effect which it used to have before the enactment of the

Interpretation Act in England or the General Clauses Act in

this country. But this is due entirely to the fact that an

express provision has been made in those enactments to

counteract that effect. Hence, in those cases which are not

covered by the language of the General Clauses Act, the

principle already enunciated will continue to operate.

The learned AttorneyGeneral had to concede that it was

doubtful whether section 6 of that Act is applicable where

there is a repeal by implication, and there can be no doubt

that the law as to the effect of the expiry of a temporary

statute still remains as stated in the books, because sec-

tion 6 of the General Clauses Act and section 38 (2) of the

Interpretation Act have no application except where an Act

is repealed. It should be remembered

241

that the soundness of the law which has been consistently

applied to cases governed by statutes which have ceased to

be in force, by reason of having been repealed or having

expired, has never been questioned, and it cannot be brushed

aside as if it embodied some archaic or obsolete rule pecul-

iar only to the common law of England. It is the law which

has been enunciated by eminent Judges both in England and in

America and is based on good sense and reason.

I shall now proceed to consider what would be the cor-

rect legal position, when a provision of an existing law is

held to be void under article 13 (1) of the Constitution.

From the earlier proceedings before the Constituent Assem-

bly, it appears that in the original draft of the Constitu-

tion, the words "shall stand abrogated" were used instead of

"shall be void," in article 13 (1), and one of the questions

directly before the Assembly was what would be the effect of

the use of those words upon pending proceedings and anything

duly done or suffered under the existing law. Ultimately,

the article emerged in the form in which it stands at

present, and the words "shall stand abrogated" were replaced

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by the words "shall be void." If the words "stand abrogated"

had been there, it would have been possible to argue that

those words would have the same effect as repeal and would

attract section 6 of the General Clauses Act, but those

words have been abandoned and a very strong expression,

indeed the strongest expression which could be used, has

been used in their place. The meaning of the word "void" is

stated in Black's Law Dictionary (3rd Edn.) to be as fol-

lows:---

"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."

A reference to the Constitution will show that the

framers thereof have used the word "repeal" wherever neces-

sary (see articles 252, 254, 357, 372 and 395). They have

also used such words as "invalid" (see

242

articles 245, 255 and 276), "cease to have effect" (see

articles 358 and 372),' 'shall be inoperative", etc. They

have used the word "void" only in two articles, these being

article 13 (1) and article 154, and both these articles deal

with cases where a certain law is repugnant to another law

to which greater sanctity is attached. It further appears

that where they wanted to save things done or omitted to be

done under the existing law, they have used apt language for

the purpose; see for example articles 249, 250,357, 358 and

369. The thoroughness and precision which the framers of

the Constitution have observed in the matters to which

reference has been made, disinclines me to read into article

13 (1) a saving provision of the kind which we are asked to

read into it. Nor can I be persuaded to hold that treating

an Act as void under article 13 (1) should have a milder

effect upon transactions not past and closed than the repeal

of an Act or its expiry in due course of time. In my opin-

ion, the strong sense in which the word "void" is normally

used and the context in which it has been used are not to be

completely ignored. Evidently, the framers of the Constitu-

tion did not approve of the laws which are in conflict with

the fundamental rights, and, in my judgment, it would not be

giving full effect to their intention to hold that even

after the Constitution has come into force, the laws which

are inconsistent with the fundamental rights will continue

to be treated as good and effectual laws in regard to cer-

tain matters, as if the Constitution had never been passed.

How such a meaning can be read into the words used in arti-

cle 13 (1), it is difficult for me to understand. There can

be no doubt that article 13 (1)will have no retrospective

operation, and transactions which are past and closed, and

rights which have already vested, will remain untouched. But

with regard to inchoate matters which were still not

determined when the Constitution came into force, and as

regards proceedings whether not yet begun, or pending at the

time of the enforcement of the Constitution and not yet

prosecuted to a final judgment, the very serious question

arises as to whether a law which

243

has been declared by the Constitution to be completely

ineffectual can yet be applied. On principle and on good

authority, the answer to this question would appear to me to

be that the law having ceased to be effectual can no longer

be applied. In R. v. Mawgan (Inhabitants)(1) a presentment

as to the non-repair of a highway had been made under 13

Geo. 3, c. 78, s. 24, but before the case came on to be

tried, the Act was repealed. In that case, Lord Denman C.J.

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said: "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." And Littledale J. added: "/do not

say that what is already done has become bad, but that no

more can be done." In my opinion, this is precisely the way

in which we should deal with the present case.

It was argued at the Bar that the logical outcome of

such a view would be to hold that all the convictions al-

ready recorded and all the transactions which are closed,

should be reopened, but, in my opinion, to argue on these

lines is to overlook what has been the accepted law for

centuries, namely, that when a law is treated as dead,

transactions which are past and closed cannot be revived and

actions which were commenced, prosecuted and concluded

whilst the law was operative cannot be reopened.

In the course of the arguments, a doubt was also raised

as to what would be 'the effect in the case of an appeal

pending when the Constitution came into force, from a con-

viction already recorded before the 26th January, 1950. The

law applicable to such a situation is well-known and has

been correctly summed up by Crawford in these words:--

"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

(1) (1888) 8 A. & E. 496.

244

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 abso-

lute repeal."

I think I should at this stage deal briefly with two

points which were raised in the course of the arguments in

support of the opposite view. It was urged in the first

place that without there being a saving clause to govern

article 13 (1), it can be so construed as to permit offences

committed prior to the 26th January, 1950, to be punished.

The argument has been put forward more or less in the fol-

lowing form. The law which is said to be in conflict with

the fundamental rights was a good law until the 25th

January, and, since article 13 (1) is to be construed

prospectively, and not retrospectively, every act

constituting an offence under the old law remains an

offence and can be punished even after the 26th January. It

seems to me that the same argument could be urged with

reference to matters which constituted offences under a

repealed Act or a temporary Act which has expired. But such

an argument has never succeeded. The real question is wheth-

er a person who has not been convicted before the Act has

ceased to exist or ceased to be effectual can still be

prosecuted under such an Act. The answer to this question

has always been in the negative, and I do not see why a

different answer should be given in the case of an Act which

has be-come void, i.e., which has become so ineffectual that

it cannot be cured.

The second argument which also has failed to impress me

is that if section 6 of the General Clauses Act does not in

terms apply, the principle underlying that section should be

applied. The answer to this argument is that the Legislature

in its wisdom has confined that section to a very definite

situation, and, though it was open to it to make the section

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more comprehensive and general, it has not done so. It is

well-known that situations similar to those which arise by

reason of the repeal of an Act have arisen in regard to Acts

245

which have expired or Acts which have been declared to be

void, and, though such situations must have been well-known

to the Legislature, they have not been provided for. In

these circumstances,I do not see how the very clear and

definite provision can be enlarged in the manner in which it

is attempted to be enlarged. Besides, I have not come across

any case in which the principle underlying section 38 (2) of

the Interpretation Act or section 6 of the General Clauses

Act has been invoked or applied.

In the present case, we have to look at the state of the

law at the time when the question arises as to whether a

person has committed any offence. If we find that the law

which made the act an offence has become completely ineffec-

tual and nugatory, then neither can a charge be framed nor

can the accused person be convicted. In my opinion, if the

assumption on which the High Court has proceeded is correct,

the appellant is entitled to a declaration that he cannot be

convicted for the offence of which he is accused.

MAHAJAN J.--The appellant is the secretary of the Peo-

ple's Publishing House Ltd., Bombay. In September, 1949, he

published a pamphlet entitled "Railway Mazdoorum Ke Khilaf

Nai Sazish."On the 9th December, 1949, he was arrested and a

prosecution was launched against him under section 18 (1) of

the Indian Press (Emergency Powers) Act (XXIII of 1931)in

the Court of the Chief Presidency Magistrate at Bombay in

respect of this pamphlet, as it had been published without

any authority as required under section 16 of the said Act.

On the 8th March, 1950, an application was made on his

behalf in the High Court of Judicature at Bombay under

article 228 of the Constitution of India for quashing the

proceedings started against him and it was contended that

sections 16 and 18 of Act XXIII of 1931 were ultra vires of

Part III of the Constitution of India and were thus void and

had no effect whatsoever and no prosecution launched under

these sections could be proceeded with after the coming into

force of the Constitution. The High Court refused this

246

application and held that the proceedings instituted against

the appellant before the commencement of the Constitution

could not be affected by the provisions of the Constitution

that came into force on the 26th January, 1950. Dissatis-

fied with this decision, the appellant has preferred the

present appeal to this court.

The sole point to decide in the appeal is whether pro-

ceedings instituted under section 18 (1) of the Indian Press

(Emergency Powers) Act, XXIII of 1931, before the commence-

ment of the Constitution of India are affected by its provi-

sions. The High Court has answered this question in the

negative and, in my opinion, rightly.

I am in respectful agreement with the observations of

the learned Chief Justice of Bombay that it is difficult to

believe that the Constituent Assembly contemplated that with

regard to the laws which it was declaring to be void under

article 13 all vested rights and all proceedings taken

should be disturbed and affected by particular laws ceasing

to be in force as a result of inconsistencies with the

fundamental rights guaranteed to the citizens. It is not

arguable and was not argued that Part III of the Constitu-

tion has any retrospective operation. The appellant was not

possessed of any fundamental rights in September, 1949, when

he published the pamphlet in question and his act clearly

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came within the mischief of the provisions of section 18 of

Act XXIII of 1931 and he thus became liable to the penalties

prescribed therein.

It was, however, contended by Mr. Chari, the learned

counsel for the appellant, that the effect of the language

employed in article 13 (1)of the Constitution was that the

proceedings commenced before the coming into force of the

Constitution could not be continued after its commencement

under the laws that became inconsistent with its provisions.

For this proposition he placed reliance on the rule of

construction stated in Maxwell on "Interpretation of Stat-

utes ", p. 404, which is to the following effect :--

247

"Where an Act expired or was repealed, it was formerly

regarded, in the absence of provision to the contrary, as

having never existed, except as to matters and transactions

passed and closed. Where, therefore, a penal law was broken,

the offender could not be punished under it if it expired

before he was convicted, although the prosecution was begun

while the Act was still in force." This rule seems to be

based on a statement of Tindal C.J. in Kay v. Goodwin(1).

The learned Chief Justice made the following observations

:--

"I take the effect of repealing a statute to be, to

obliterate it as completely from the records of Parliament

as if it had never been passed; and it must be considered as

a law that never existed except for the purpose of those

actions which were commenced, prosecuted and concluded

whilst it was an existing

laW."

This was the rule of the English common law which was

applied in cases of statutes which were repealed and under

this rule all pending actions and prosecutions could not be

proceeded with after the repeal of the law under which they

were started. This rule was however changed by the Inter-

pretation Act of 1889, section 38. Therein it was enacted

that unless the contrary intention appears, no repeal is to

affect any investigation, legal proceeding, including the

initiation of criminal proceedings, or remedy in respect of

any such right, privilege, obligation, liability, penalty,

forfeiture, or punishment and any such investigation,

legal proceeding or remedy may be instituted, continued or

enforced and any such penalty, forfeiture or punishment may

be imposed as if the repealing Act had not been passed. A

similar provision exists in India in section 6 of the Gener-

al Clauses Act of 1868 and 1897. The High Court held that

the provisions of article 13(1) were analogous to the repeal

of a statute and therefore section 6 of the General Clauses

Act had application to the construction of these provisions

and that being so, the coming into force of the Constitution

did

(1) 180 E.R. 1403; (1830) 6 Bing. 576.

248

not in any way affect the continuance of the proceedings

that had been commenced against the appellant under the law

that was in force at the time of the publication of the

pamphlet. Mr. Chari contended that the High Court was in

error in applying the provisions of section 6 of the General

Clauses Act to the interpretation of article 13 (1) of the

Constitution inasmuch as the provisions of this article were

not analogous to repeal and did not amount to a repeal of

the existing law. He contended that a repeal of the law

could only be by the legislature but that under article 13

power had been given to the court to declare any law incon-

sistent with the Constitution to be void; in other words,

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the power given was larger in scope and effect than the

power of repeal and the effect of the declaration that a

certain statute was void as it was repugnant to the freedom

guaranteed by the Constitution was to wipe out the statute

altogether from the date of the coming into force of the

Constitution and that nothing could be done under that

statute with effect from the 26th January, 1950, and there-

fore the court could not frame a charge under the law that

was declared void, or pass a judgment of conviction against

a person under a law that had been declared void. Mr. Chari

went to the length of saying that a statute which was incon-

sistent with the Constitution became dead on the coming into

force of the Constitution and under a dead statute no action

could be taken whatsoever. He emphasised his contention by

stressing the fact that freedoms guaranteed by Part III of

the Constitution could not be tainted by keeping alive

prosecutions and actions under laws framed by a foreign

government which were inconsistent with those freedoms. It

was said that some of the laws which the Constitution in-

tended to be declared void by the court because of their

repugnancy to the fundamental rights guaranteed to the

citizen by the Constitution were those which a foreign

government had enacted to keep the people of this country

under its domination and that to continue prosecutions under

these laws after the coming into force of the Constitution

would be wholly contrary and

249

repugnant not only to the letter of the Constitution but

also to its spirit. It was conceded that transactions

finally closed under such laws could not be reopened but

that prosecutions and actions which were still continuing

should be stopped and further action concerning them would

become illegal and would be contrary to the freedoms guaran-

teed by the Constitution. Reference was made to articles

249, 250, 357, 358, and 369 to show that the scheme of the

Constitution was that wherever it intended that the proceed-

ings commenced under existing laws which became inoperative

on the 26th January, 1950. were to continue after that date,

apt phraseology had been used to indicate that intention but

that in article 13 no such saving words were used and there-

fore it must be presumed that the Constituent Assembly did

not intend that proceedings taken under such laws were to be

continued after the 26th January, 1950.

Article 13 (1) of the Constitution is in these terms

:--

"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 guaranteed to the citizen which has applica-

tion to the case of the appellant is in article 19 (1) (a)

and this article is in these terms :--

"All citizens shall have the right to freedom of speech

and expression."

It is admitted that after the 26th January, 1950, there

has been no infringement of the appellant's right of freedom

of speech or expression. In September, 1949, he did not

enjoy either complete freedom of speech or full freedom of

expression. It is in relation to the freedom guaranteed in

article 19(1) of the Constitution to the citizen that the

provisions of article 13 (1) come into play. This article

does not declare any law void independently of the existence

of the freedoms guaranteed by Part III. A citizen must be

possessed

250

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of a fundamental right before he can ask the court to de-

clare a law which is inconsistent with it void ;but if a

citizen is not possessed of the right, he cannot claim this

relief. The appellant in the present case was not possessed

of any fundamental right on the day that he published the

pamphlet and in these circumstances the question is whether

he can claim protection under the rights guaranteed to him

on 26th January, 1950, for escaping the consequence of his

act on any principles of construction of statutes. Accord-

ing to the contention of the learned counsel, the principles

applicable to repealed statutes are not in terms applicable

to such a case, whether they are to be found in the rules of

the common law of England or whether they are contained in

the Interpretation Act or the General Clauses Act. Those

rules are applicable to cases either of repeal or to cases

of a statute dying a natural death by efflux of time. None

of those however have any application to the construction of

statutes framed in languages like the one contained in

article 13 (1) of the Constitution. Besides the rule of

construction which applies to repealed statutes or to tempo-

rary statutes our attention was not drawn to any other rule

of construction under which a person who commits an offence

against an Act during its existence as a law becomes unpun-

ishable on its termination. Both on considerations of con-

venience and also on grounds of justice and reason I am

inclined to think that penalties incurred under a law in

force at the time when the act was committed would survive

its extinction so that persons who violate its provisions

might afterwards be punished. Persons who during the contin-

uance of a statute have obtained rights under it cannot be

affected by a declaration that the statute with effect from

a certain date will become an inoperative statute. When in

the case of repeal of a statute, which according to Tindal

C.J. obliterates it completely from the records of Parlia-

ment as if it had never been passed, the common law rule has

been abrogated by statute, it is difficult to apply that

rule on any sentimental grounds at this date to the case of

statutes which are declared void or declared to have

251

no effect whatsoever after a certain date only. The expres-

sion "void" has no larger effect on the statute so declared

than the word "repeal". The expression "repeal" according to

common law rule obliterates a statute completely as if it

had never been passed and thus operates retrospectively on

past transactions in the absence of a saving clause or in

the absence of provisions such as are contained in the

Interpretation Act, 1889, or in the General Clauses Act,

1897, while a provision in a statute that with effect from a

particular date an existing law would be void to the extent

of the repugnancy has no such retrospective operation and

cannot affect pending prosecutions or actions taken under

such laws. There is in such a situation no necessity of

introducing a saving clause and it does not need the aid of

a legislative provision of the nature contained in the

Interpretation Act or the General Clauses Act. To hold that

a prospective declaration that a statute is void affects

pending cases is to give it indirectly retrospective opera-

tion and that result is repugnant to the clear phraseology

employed in the various articles in Part III of the Con-

stitution.

The contention of the learned Attorney-General that the

phraseology employed in article 13 (1) of the Constitution

clearly indicates that there was no intention to give any

retrospective operation to the provisions of Part III of the

Constitution and that the declaration that laws repugnant to

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Part III of the Constitution are void only operates from

26th January, 1950, has, in my opinion, force. It seems

clear that an existing statute in spite of a declaration-by

court that it is void remains in force till the 25th Janu-

ary, 1950, and continues to remain on the statute book even

after the 26th January, 1950, except that no effect can be

given to any of its provisions which are repugnant to the

fundamental rights guaranteed by the Constitution. The

effect of article 13 (1)is only prospective and it operates

in respect to the freedoms which are infringed by the State

subsequent to the coming into force of the Constitution but

the past acts of a person which came within the mischief of

the law then in force are not affected

33

252

by Part III of the Constitution. The reference made by Mr.

Chari to different articles of the Constitution where saving

clauses have been inserted to save pending proceedings or

acts is not very helpful inasmuch as where a certain provi-

sion has a retrospective effect, then it is necessary to

introduce a saving clause if things done in the past have to

be saved from the retrospective effect of the statute; but

where the provision is clearly not intended to be retrospec-

tive, then the necessity of saving clause does not arise.

The provisions of the Constitution to which Mr. Chari made

reference were of the nature that but for the saving clause

the effect of them would be retrospective in character under

the accepted canons of construction of statutes.

Mr. Chari's argument that it could not have been intend-

ed by the Constitution makers that prosecutions started

under laws passed by a foreign power and which affect the

freedoms guaranteed to the citizen under the Constitution in

Part III were to be continued after the dawn of independence

and after India had become a democratic republic to a cer-

tain extent seems to me to be plausible; but on further

thought I have come to the conclusion that this argument

appeals more to the heart than to the head and is not based

on any sound principle of construction of statutes. Under

the accepted canons of construction of statutes, if a law

has no retrospective operation of any kind whatsoever, then

such a law cannot affect pending prosecutions or actions and

the Constitution not being retrospective in its operation

could not therefore in any way affect prosecutions started

for offences that were complete under the law in force at

the time they were committed. The cure for such an incon-

gruous state of affairs and the relief for such situation

lies with the Government and the legislature and not with

the courts. If a case of sedition against an alien govern-

ment is continued after the coming into force of the Consti-

tution, the court cannot decline to proceed with it and to

pass some sentence howsoever lenient, against an accused by

placing a construction on the Constitution

253

which gives it retrospective operation, but the government

of the republic or its legislature can always by executive

or legislative action bring to a close all such distasteful

proceedings and not only can it do so in the case of pending

prosecutions but it can give relief also to persons who have

suffered under laws of sedition against an alien government

and are suffering terms of imprisonment in the jails of the

Republic. If punishment for contravention of such laws

cannot be given to offenders because decision in their case

has been delayed beyond the 26th January, 1950, it will be

highly unreasonable not to give relief and to let punish-

ments continue in case of persons, the sentence against whom

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have already been passed under laws which were solely enact-

ed to maintain the alien rule. Both cases, in my opinion,

stand on the same footing and relief in those cases lies not

with courts but with the executive government of the Repub-

lic. If Mr. Chari's argument that on the commencement of

the Constitution on 26th January, 1950, all proceedings

started under laws that became repugnant and inconsistent

with the Constitution were to be stopped was accepted, it

would lead to very strange results, and Mr. Chari had to

concede that it would be so. Suppose a person was convicted

of the offence of sedition or of an offence under one of the

safety Acts, the provisions of which are repugnant to

the Constitution, but his appeal was pending in the High

Court against his conviction, then, according to the conten-

tion of Mr. Chari, the court has no power to hear the appeal

because the law being void, no further action could be taken

in the matter. The result would be that the Court would not

be able to hear an appeal and to give relief to the accused

if he had been erroneously convicted. If a court cannot

frame a charge or convict a person under a law that is

repugnant to the Constitution equally it would not be enti-

tled to continue any proceeding for the benefit of the

accused under cover of such a law.

Great deal of emphasis was laid during the course of the

argument on the meaning to be given to the word "void" and

it was said that this word in its widest

254

sense meant that the law declared void was void ab initio,

i.e, from the very reception of the law it was bad. H that

meaning was given to this word, then it would mean that all

laws existing on the 26th January, 1950, and which were

declared void by article 13 (1) because of their being

repugnant to the Constitution were bad when they were passed

by the legislature, though at the same time the subject

enjoyed no fundamental rights. It was sought to give to this

word "void" the same wide meaning as was given to the word

"repeal" by Tindal C.J. in the case above mentioned. With

every respect to the great Judges who administered the

common law in England during the earlier period of British

history and in all humility I venture to say that the rule

evolved by them qua "repeal" was of an artificial nature.

The dictum of the learned Chief Justice that a repeal of a

statute obliterates it completely from the records of Par-

liament as if it had never been passed is to my mind based

on an extended meaning of that expression than its ordinary

dictionary sense. When a statute has been in operation, say

for a period of fifty years, people have suffered penalties

under it or have acquired rights thereunder and the law has

been enforced by courts for such a long period, then to say

that when it is repealed it is completely obliterated and

that it never had any existence and was never passed by

Parliament, is rather saying too much and is ignoring hard

real facts and amounts to shutting one's eyes to the actual-

ities of the situation. It would be more consonant with

reason and justice to say that the law existed and was good

at the time when it was passed but that since the date of

its repeal it has no longer any effect whatsoever. The

Parliament may however say in the repealing statute that it

will have retrospective operation and it may also prescribe

the limits of its retrospectivity and to that extent past

transactions may be affected by it. Because the rule of

common law evolved by the English Judges was not in conso-

nance with reason and justice, a legislative practice was

evolved under which each repealing statute contained a

saving clause under

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255

which past transactions were not allowed to be affected by

the repeal. Eventually the rule of common law was completely

abrogated by the enactment of the Interpretation Act, 1889.

In India in the year 1868, section 6 of the General Clauses

Act enacted what was later on enacted in England in the

Interpretation Act and for over eighty years it is this rule

of construction that has been adopted in this country, the

rule being that past transactions, whether closed or incho-

ate cannot be affected by the repeal of an earlier statute

or by the coming into effect of a new one. In my opinion,

the rule contained in the General Clauses Act and in the

English Interpretation Act is more in consonance with reason

and justice and is also a rule of convenience and should be

followed in this country, in preference to the rule evolved

by the English Judges in the earlier part of English legal

history. Be that as it may, it is unnecessary in this case

to have resort either to the rule of common law or to the

General Clauses Act as the language of article 13 itself

furnishes a solution to the problem.

Reference was also made to the rule of construction

applicable to temporary statutes. In the case of such

statutes, the rule of English law is that after the expiry

of the life of the statute no action can be taken under the

expired statute unless an intention can be gathered from its

provisions to the contrary, but transactions already com-

pleted during the period that these statutes had the force

of law are not in any way affected. That rule seems to be

quite logical and is consonant with reason and justice. When

the life of a statute is limited and it dies a natural

death, then no question either of its retrospective or of

prospective nature arises. If the intention of the statute

was that anything done under it has to continue, then it

will be allowed to continue; otherwise nothing done under it

will be continued after its natural death. Any rule applica-

ble to construction of such a statute has no application to

the interpretation of the Constitution of India and the

reference to this rule, in my opinion, is not relevant for

the decision of this

256

Reference was also made to the rule of construction laid

down by the American courts in respect of statutes de-

clared void because of their being repugnant to the Consti-

tution of the United States of America. It is obvious that

if a statute has been enacted and is repugnant to the Con-

stitution, the statute is void since its very birth and

anything done under it is also void and illegal. The courts

in America have followed the logical result of this rule and

even convictions made under such an unconstitutional statute

have been set aside by issuing appropriate writs. If a

statute is void from its very birth then anything done

under it, whether closed, completed, or inchoate, will be

wholly illegal and relief in one shape or another has to be

given to the person affected by such an unconstitutional

law. This rule, however, is not applicable in regard to laws

which were existing and were constitutional according to the

Government of India Act, 1935. Of course, if any law is

made after the 25th January, 1950, which is repugnant to the

Constitution, then the same rule will have to be followed by

courts in India as is followed in America and even convic-

tions made under such an unconstitutional law will have to

be set aside by resort to exercise of powers given to this

court by the Constitution.

The only rule of construction applicable to the inter-

pretation of article 13 of the Constitution is the one that

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concerns the determination of the question whether a statute

is intended to have any retrospective operations. If the

well-known canons of construction on this point are applied,

then it has to be held that article 13 was not intended to

have any retrospective effect whatever; on the other hand,

its language denotes that it recognized the validity of the

existing laws up to the date of the commencement of the

Constitution and even after its commencement except to the

extent of their repugnancy to any provisions of Part III of

the Constitution. On this construction of article 13 it

cannot affect any past transactions, whether closed or

inchoate. Reference in this connection may be made to the

provisions of

257

article 372(2) of the Constitution. Under this article the

President has been given power to adapt existing laws and to

bring them in accordance with the articles of the Constitu-

tion by a process of amendment, repeal or adaptation. The

President could have repealed the Press (Emergency Powers)

Act and brought the law in accordance with the provisions of

Part III of the Constitution and if he had used the powers

of repeal given to him by this article, the provisions of

the General Clauses Act would have been immediately attract-

ed to that situation and the pending prosecution of the

appellant would have to be continued in view of those provi-

sions. If in that situation the Constitution contemplates

the continuance of pending proceedings under existing laws,

it becomes difficult to place a different interpretation on

the phraseology employed in article 13(1) of the Constitu-

tion, than the one that is in accord with that situation.

By the construction that I have placed on this article that

incongruous result is avoided.

In view of the decision above arrived at it seems unnec-

essary to pronounce on the alternative argument of the

learned Attorney-General to the effect that the expression '

'void', used in article 13 of the Constitution is synonymous

with the word "repeal" and that it was an apt word used in

the context to indicate the same intention. It was said

that the word "repeal" was not used in the article but

instead the expression "void" was employed therein by the

draftsmen in order to include within its ambit cases of

custom and usage where such custom and usage were also

repugnant to the provisions of Part III of the Constitution.

It was also urged that by article 13 (1)the Constitution in

express terms repealed all laws inconsistent with its provi-

sions and that the only power given to the court was to find

out which of these laws was inconsistent with the provisions

of Part III. The declaration that these laws were void or

repealed was by the force of the provisions of article 13

itself and did not result from the decision of the courts.

It is also unnecessary to examine the further argument of

the learned

258

Attorney-General that in any case since 1868 in this country

the rule of construction of statutes is the one laid down by

section 6 of the General Clauses Act,1868, and that though

in express terms that statute may not be applicable to the

construction of article 13(1) of the Constitution, yet that

rule is a rule of justice, equity and good conscience and

has become a rule of common law in this country and should

be applied even to cases where statutes become void by rea

son of their being repugnant to the Constitution.

For the reasons given above I see no force in this

appeal and I would accordingly dismiss it.

MUKHERJEA J.-I am in entire agreement with the view

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taken by my learned brother Fazl Ali J. in his judgment and

I concur both in his reasons and his conclusion.

Appeal dismissed.

Agent for the appellant: P.G. Gokhale.

Agent for the respondent: P.A. Mehta.