dedol-hf/india-case-legal-rag huggingface dataset:
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-
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-
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.
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
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
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.
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