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KESHAVAN MADHAVA MENON V. STATE OF BOMBAY AIR 1951 SC 128

KESHAVAN MADHAVA MENON V. STATE OF BOMBAY AIR 1951 SC 128

 

FACTS

The appellant (a secretary at the People’s Publishing House Ltd., Bombay) was arrested and a prosecution was started against him under Section 18(1) of the Indian Press (Emergency Powers) Act, 1931 in the Court of the Chief Presidency Magistrate at Bombay for publishing a pamphlet in Urdu entitled “Railway Mazdoorun Ke Khilaf Nai Sazish.” While the prosecution was pending, the Constitution of India came into force on the 26 January 1950, and thereafter the appellant raised the contention that Sections 2(6), 15 and 18 of the Act were void, as they were inconsistent with Article 19(1)(a) of the Constitution. Hence  the case against him could not proceed. The appellant further filed a writ petition under Article 228 of the Constitution asking the High Court to send for the  record of the case and declare that Sections 15 and 18 of the Indian Press (Emergency Powers) Act read with Section 2(6) and Section (10) were void and inoperative. He further prayed for his acquittal.

 

ISSUE

The two issues dealt with within the current case were-

  • 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 inconsistent with Article 19(1)(a) read with clause (2) of that Article
  • Whether the proceedings commenced under Section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with, assuming that the Sections were inconsistent

 

JUDGEMENT OF THE HIGH COURT

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 The court observed that the word “void” was used in Article 13(1) in the sense of “repealed” and that consequently it attracted Section 6 of the General Clauses Act, which Act by Article 367 was made applicable for the interpretation of the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. Hence, the proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commencement of the Constitution, were not affected, even if the Act were inconsistent with the fundamental rights conferred by Article 19(1)(a), and as such became void under Article 13(1) of the Constitution after January 26, 1950. Therefore, the Hon'ble court answered the second question in the affirmative and dismissed the petitioner’s application.

 

JUDGEMENT AND ANALYSIS

  1. This Hon'ble court observed that Article 13(1) states that all existing laws, if they are inconsistent with the provisions of part III of the Constitution, shall be void to the extent of such inconsistency. Before the inception of the Constitution, there was no such thing as Fundamental Rights. 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. Normally, unless explicitly specified, laws have a prospective effect. Since no explicit mention of retrospective effect was seen in Article 13, it shall only be prospective in its operation.
  2. This court also observed that the Article 13(1) does not 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 shall be void to the extent of their inconsistencies with fundamental rights. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights.
  3. The court also examined that “void” does not mean “repealed” and if Article 13(1) cannot be read as “obliterating” the entire operation of inconsistent laws, it is submitted that there is no scope for an unconstitutional provision being “notionally taken to be obliterated.
  4. Hence, it was held that There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. The court affirms with the conclusion arrived at by the high court in the second question.