dedol-hf/india-case-legal-rag huggingface dataset:
judgment  of the lower court has been withdrawn by an  abso-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repealed Act or a temporary Act which has expired.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
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
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,
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
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
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
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