nder article 1321 of the Constitution from a judgment and order dated 12th April 1950 of the High Court of Judicature at Bombay Chagla CJ Bavdekar and Shah JJ Case No I X of 1950
ASR Chari for the appellant
MC Setalvad Attorney General for India G N Joshi with him for the respondent
Jan 22
The judgment of Kania CJ Patanjali Sastri J Das J and Chandrasekhara Aiyar J was delivered 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 1102P 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 191a 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 1102P 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 aand 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 CJ 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 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 1aand 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 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 131 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 131 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 131 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 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 131 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 lant was arrested and a prosecution was started against him under section 181 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 26 of the Act and that since it had been published without the authority required by section 151 of the Act the appellant had committed an offence punishable under section 181 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 26 15 and 18 of the Act were void being inconsistent with article 191 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 26 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 191a of the Constitution of India and held that article 131 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 JK Gas Plant Manufacturing Co Rampur Ltd and Others vs 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 vs Ellison2 it must be at 166
2 238 considered except as to transactions past and closed as if it had never existed
That is the general rule
 Tindal CJ states the exception more widely
He says in Kay vs Goodwin1  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 passedand 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 vs Mumford Ind2 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  2 239 The author then proceeds to quote the following passage from Wall vs 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 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 NE20
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 2of 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 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 effectunable 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 250357 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 1will 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 vs Mawgan Inhabitants1 a presentment as to the non repair of a highway had been made under 13 Geo 3 c 78 section 24 but before the case came on to be tried the Act was repealed
In that case Lord Denman CJ 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  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 ie 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 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 circumstancesI 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 1931in 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 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 1of 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 CJ in Kay vs Goodwin1
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 131 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 ER 1403 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 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 191 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 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 CJ 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  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 
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 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 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 1is 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 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 ie 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 CJ 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 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 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 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 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 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 3722 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 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 131 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 1the 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 Act1868 and that though in express terms that statute may not be applicable to the construction of article 131 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 taken by my learned brother Fazl Ali J in his judgment and I concur both in his reasons and his conclusion
Appeal dismissed


Summary:
Held by the Court KANIA CJ PATANJALI SASTRI MEHR CHAND MAHAJAN DAS and CHANDRASEKHARA AIYAR JJ
FAZL ALI and MUKHERJEA JJ dissenting Article 131 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 article 131 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 languageof 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 article 131 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 article 131 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