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PETITIONER: KESHAVAN MADHAVA MENON

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 22/01/1951

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA MUKHERJEA, B.K.

CITATION:  1951 AIR  128            1951 SCR  228  CITATOR INFO :  MV         1951 SC 253  (30,31)  F          1952 SC 235  (3,5,9,23,24,25)  E          1952 SC 339  (15)  R          1953 SC 156  (16)  D          1953 SC 394  (8)  RF         1954 SC 158  (13)  R          1955 SC  13  (14)  R          1955 SC 123  (34,50,51,65)  R          1955 SC 781  (9)  RF         1956 SC 503  (13)  F          1957 SC 397  (43)  F          1957 SC 540  (25)  F          1958 SC  86  (22)  D          1958 SC 468  (40)  E          1959 SC 149  (45,60,92,93)  F          1959 SC 648  (19,21,23,25,33)  R          1960 SC 862  (15)  R          1962 SC1737  (14)  RF         1963 SC1019  (15,23)  D          1964 SC1284  (18,20)  RF         1970 SC 470  (26)  R          1972 SC 425  (17)  RF         1972 SC2205  (26)  RF         1973 SC1461  (26)  RF         1974 SC1300  (28,30,32,33)  RF         1979 SC  25  (38,40)  RF         1979 SC 602  (6)

ACT:     Constitution of India, 1950, Art. 13 (1)--Whether retro- spective  --Prosecution  for contravention of  Indian  Press (Emergency  Powers)  Act,  1931,  ss.  15,  18--Constitution passed  during  pendency of  prosecution--Laws  inconsistent with  fundamental rights declared  void-Whether  prosecution can  be  continued--Absence  of  provision  saving  pending’ proceedings--Effect   of--Expiry   of   temporary  laws   or repeal of laws, and laws becoming void by statutory declara- tion-Difference--Interpretation--Spirit of the Constitution.

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HEADNOTE:     Held by the Court (KANIA C.J.,  PATANJALI  SASTRI,  MEHR CHAND  MAHAJAN, DAS and CHANDRASEKHARA AIYAR  JJ.--FAZL  ALI and MUKHERJEA JJ., dissenting)--Article 13(1) of the  Indian Constitution  does not make existing laws which  are  incon- sistent  with  fundamental rights void ab initio,  but  only renders  such laws ineffectual and void with respect to  the exercise of fundamental rights on and after the date of  the commencement  of the Constitution.  It has no  retrospective effect,  and  if therefore an act was done before  the  com- mencement  of the new Constitution in contravention  of  the provisions  of any law which was a valid law at the time  of the  commission of the act, a prosecution for such  an  act, which was commenced before the Constitution came into  force can be proceeded with and the accused punished according  to that  law. even after the commencement of the new  Constitu- tion.     On the expiry of a temporary statute no further proceed- ings  can be taken under it unless the statute itself  saved pending  proceedings  and if an offence had  been  committed under a temporary statute and proceedings were initiated but the offender had not been prosecuted and punished before the expiry  of  the  statute, then in the absence  of  a  saving clause  the  pending prosecution cannot  be  proceeded  with after  the  expiry  of the statute by efflux  of  time.  The effect  of  Art. 13(1) is quite different from that  of  the expiry of a temporary statute or the repeal of a statute  by a subsequent statute.     A court of law has to gather the spirit of the Constitu- tion  from the language/of the Constitution.  What  one  may believe or wish to be the spirit of the Constitution  cannot prevail if the language of the Constitution does not support that view. 229     Per  FAZL  ALI and MUKHERJEA  JJ.  (contra)-Though  Art. 13(1) has no retrospective operation, and transactions which are  past  and closed and rights which have  already  vested will remain untouched, with regard to inchoate matters which were still not determined  when the Constitution  came  into force, and as regards proceedings which were pending at  the time  of  the enforcement of the Constitution  and  not  yet prosecuted to a final judgment, a law which has become  void under  Art.  13(1) of the Constitution  cannot  be  applied. What has to be looked at is the state of the law at the time when the question arises as to whether a person has  commit- ted  an offence, and if it is found that the law which  made the  act  an offence has become completely  ineffectual  and nugatory,  then neither can a charge be framed nor  can  the accused person be convicted. Judgment of the Bombay High Court affirmed.

JUDGMENT:     APPELLATE JURISDICTION: Appeal under Art. 132(1) of  the Constitution  from  a judgment and order dated  12th  April, 1950,  of  the High Court of Judicature  at  Bombay  (Chagla C.J., Bavdekar and  Shah JJ.): Case No. I X of 1950. A.S.R. Chari, for the appellant.     M.C.   Setalvad,   Attorney-General for   India  (G.  N. Joshi, with him) for the respondent.     1951.  Jan.  22. The judgment of Kania  C.J.,  Patanjali Sastri  J. Das J. and Chandrasekhara Aiyar J. was  delivered

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by  Das  J. Mahajan J. and Fazl Ali  J.  delivered  separate judgments.  Mukherjea J. agreed with Fazl Ali J.     DAs J.--At all material times the petitioner, who is the appellant before us, was the Secretary of People’s  Publish- ing  House, Ltd., a  company  incorporated under the  Indian Companies Act with its registered office at 190-B,  Khetwadi Main  Road  in  Bombay.  In September,  1949,   a   pamphlet entitled "Railway Mazdooron ke khilaf Nai Zazish" is alleged to  have been published in Bombay by the petitioner  as  the secretary  of that company.  Learned counsel for  the  peti- tioner  states that the pamphlet was published as  a  "book" within  the meaning of section 1 of the Press and  Registra- tion  of Books Act (XXV of 1867) and that the provisions  of that Act had been duly complied 230 with.  The Bombay Government authorities, however, took  the view that the pamphlet was a "news sheet" within the meaning of section 2 (6) of the Indian Press (Emergency Powers) Act, 1931, and that as it had been published without the authori- ty  required by section 15 (1) of that Act,  the  petitioner had committed an offence punishable under section 18 (1)  of the  same Act. A prosecution under that Act was  accordingly started   against the petitioner in the Court of  the  Chief Presidency Magistrate, Bombay, and  was  registered as  Case No.  1102/P of 1949. During the pendency of the  proceedings the  Constitution  of India came into force on  January  26, 1950.  On  March  3, 1950, the petitioner  filed  a  written statement  submitting,  inter alia, that the  definition  of "news  sheet" as given in section 2 (6) of the Indian  Press (Emergency Powers) Act, 1931, and sections 15 and 18 thereof were  ultra vires and void in view of article 19(1)(a)  read with  article 13 and that the hearing of the case should  be stayed  till  the High Court decided that question  of  law. This  was followed up by a petition filed in the High  Court on  March  7, 1950, under article 228 of  the  Constitution, praying  that the record of Case No. 1102/P of 1949 be  sent for,  that it be declared that sections 15 and 18 read  with section  2 (6) and (10), in so far as they create  liability for  restrictive measure for a citizen, are ultra  vires  of article  19 (1) (a)and are, therefore, void and  inoperative and that the petitioner be ordered to be acquitted.   During the  pendency of this petition the Chief  Presidency  Magis- trate  on March 23, 1950, framed a charge against the  peti- tioner under section 18 of the Press (Emergency Powers) Act, 1931.     The  petition under article 228 was heard on  April  12, 1950,  by  a Bench of the Bombay High  Court  consisting  of Chagla  C.J.  and Bavdekar and Shah JJ. Two  questions  were raised before the Bench, namely---     (1)  Whether  sections 15 (1) and 18 (1) read  with  the definitions  contained in sections 2 (6) and 2 (.10) of  the Indian Press (Emergency Powers) Act, 1931, were 231 inconsistent with article 19 (1) (a) read with clause (2) of that article ? and     (2)  Assuming that they were inconsistent,  whether  the proceedings  commenced  under  section 18 (1)  of  that  Act before the commencement of the Constitution could  neverthe- less be proceeded with ?     The High Court considered it unnecessary to deal with or decide  the first question and disposed of  the  application only  on the second question.  The High Court took the  view that the word "void" was used in article 13 (1) in the sense of  "repealed" and that consequently it attracted section  6 of  the  General Clauses Act, which Act by article  367  was

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made applicable for the interpretation of the  Constitution. The  High  Court,  therefore, reached  the  conclusion  that proceedings   under the  Indian  Press   (Emergency  Powers) Act,  1931, which were pending at the date of the  commence- ment of the Constitution were not affected, even if the  Act were  inconsistent with the fundamental rights conferred  by article  19 (1)(a)and as such became void under  article  13 (1)  of the Constitution after January 26, 1950.   The  High Court  accordingly answered the second question in  the  af- firmative  and  dismissed  the   petitioner’s   application. The  petitioner has now come up on appeal before us  on  the strength  of a certificate granted by the High  Court  under article 132 (1) of the Constitution.     Learned  counsel  appearing in support  of  this  appeal urged  that the Indian Press (Emergency Powers)  Act,  1931, was  one  of the many repressive laws enacted  by  an  alien Government  with a view to stifle the liberty of the  Indian subjects  and particularly of the Indian Press;  that,  with the  advent  of independence the people of  India  began  to breathe freely and by the Constitution which they gave  unto themselves  they  took care to guarantee to  themselves  the fundamental rights of free citizens of a democratic republic and  that article 13 (1) of that Constitution brushed  aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all 232 laws inconsistent with the fundamental rights to be void  as if  they had never been passed and had never   existed.   It was,  therefore,  against the spirit  of  the  Constitution, argued  the  learned counsel, that a free citizen  of  India should  still continue to be persecuted under such a  retro- grade  law  which, being inconsistent with  the  fundamental rights,  must be declared to be void. Learned counsel  urged that  it  was  not necessary for him to  contend  that  such inconsistent laws became void ab initio or that all past and closed transactions could be reopened but he contended  that on  and  from January 26, 1950, when the  Constitution  came into  force such inconsistent laws which became  void  could not be looked at for any purpose and far less could they  be utilised for the purpose of framing a charge or punishing  a free citizen.  As the void law cannot be utilised any  long- er, the pending prosecutions, according to learned  counsel, must  fall  to the ground.  To  permit  pending  proceedings under  a law which, after the commencement of the  Constitu- tion had become void, to proceed further, after the  Consti- tution  has taken effect, is to prolong the efficacy of  the law notwithstanding that it has become void on and from  the date  the Constitution came into force and that  is  against the spirit of the Constitution.     An argument founded on what is claimed to be the  spirit of  the  Constitution  is always attractive, for  it  has  a powerful appeal to sentiment and emotion; but a court of law has  to gather the spirit of the Constitution from the  lan- guage of the Constitution.  What one may believe or think to be  the  spirit of the Constitution cannot  prevail  if  the language  of  the Constitution does not support  that  view. Article  372 (2) gives power to the President to  adapt  and modify  existing laws by way of repeal or amendment.   There is  nothing  to prevent the President, in  exercise  of  the powers conferred on him by that article, from repealing, say the whole or any part of the Indian Press (Emergency Powers) Act,  1931. If the President does so, then such repeal  will at  once  attract section 6 of the General Clauses  Act.  In such a situation all prosecutions under 233

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the  Indian Press (Emergency Powers) Act, 1931,  which  were pending at the date of its repeal by the President would  be saved and must be proceeded with notwithstanding the  repeal of  that Act unless an express provision was otherwise  made in  the  repealing Act. It     is therefore clear  that  the idea of the preservation of past inchoate rights or liabili- ties  and  pending proceedings to enforce the  same  is  not foreign  or abhorrent to the Constitution of India. We  are, therefore, unable to accept the contention about the  spirit of the Constitution as invoked by the learned counsel in aid of  his plea that pending proceedings under a law which  has become  void  cannot be proceeded with.  Further, if  it  is against  the  spirit  of the Constitution  to  continue  the pending prosecutions under such a void law, surely it should be  equally repugnant to that spirit that men who  have  al- ready  been convicted under such repressive law  before  the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear that the court should construe  the  language of article 13(1)  according  to  the established rules of interpretation and  arrive at its  true meaning uninfluenced by any assumed spirit of the  Constitu- tion.   Article  13 (1) with which we are concerned for  the  pur- poses of this application is in these terms: -   "All laws in force in the territory of India immediately before  the commencement of this Constitution, in so far  as they  are  inconsistent with the provisions  of  this  Part, shall, to the extent of such inconsistency, be void."     It will be noticed that all that this clause declares is that  all existing laws, in so far as they are  inconsistent with the provisions of Part II1 shall, to the extent of such inconsistency,  be void. Every statute is prima  facie  pro- spective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this  rule of interpretation should not be applied  for  the purpose  of interpreting our Constitution.  We find  nothing in  the  language  of article 13 (1) which may  be  read  as indicating an 234 intention  to give it retrospective operation.  On the  con- trary, the language clearly points the other way. The provi- sions  of  Part III guarantee what  are  called  fundamental rights.   Indeed,  the heading of Part III  is  "Fundamental Rights".  These rights are given, for the first time, by and under  our Constitution. Before the Constitution  came  into force  there was no such thing as fundamental  right.   What article 13(1) provides is that all existing laws which clash with  the exercise of the fundamental rights (which are  for the  first time created by the Constitution) shall  to  that extent be void.  As the fundamental rights became  operative only  on and from the date of the Constitution the  question of the inconsistency of the existing laws with those  rights must  necessarily  arise on and from the date  those  rights came  into  being. It must follow, therefore,  that  article 13(1)  can have no retrospective effect but is  wholly  pro- spective in its operation. After this first point is  noted, it  should further be seen that article 13 (1) does  not  in terms make the existing laws which are inconsistent with the fundamental  rights void ab initio or for all purposes.   On the contrary, it provides that all existing laws, in so  far as they are inconsistent with the fundamental rights,  shall be  void to the extent of their inconsistency. They are  not void  for all purposes but they are void only to the  extent they  come  into conflict with the  fundamental  rights.  In other words, on and after the commencement of the  Constitu-

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tion  no existing law will be permitted to stand in the  way of the exercise of any of the fundamental rights. Therefore, the  voidness of the existing law is limited to  the  future exercise of the fundamental rights.  Article 13(1) cannot be read as obliterating the entire operation of the  inconsist- ent  laws, or to wipe them out altogether from  the  statute book,   for  to  do so will be to  give  them  retrospective effect which, we have said, they do not possess.  Such  laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. Learned counsel for the appellant has drawn our attention to articles 249 (3), 250, 357, 358 235 and  369  where express provision has been made  for  saving things  done under the laws which expired.  It will  be  no- ticed that each of those articles was concerned with  expiry of  temporary statutes. It is well known that on the  expiry of  a temporary statute no further proceedings can be  taken under  it, unless the statute itself saved pending  proceed- ings.  If therefore, an offence had been committed  under  a temporary statute and the proceedings were initiated but the offender  had  not been prosecuted and punished  before  the expiry  of the statute, then, in the absence of  any  saving clause, the pending prosecution could not be proceeded  with after  the expiry of the statute by efflux of time.  It  was on  this  principle that express provision was made  in  the several  articles  noted  above for saving  things  done  or omitted  to  be  done under the expiring  laws  referred  to therein.    As explained above, article 13 (1)  is  entirely prospective  in its operation and as it was not intended  to have any retrospective effect there was no necessity at  all for  inserting in that article any such saving clause.   The effect of article 13 (1) is quite different from the  effect of  the  expiry of a temporary statute or the  repeal  of  a statute  by  a. subsequent statute.  As  already  explained, article   13  (1)   only  has the effect  of  nullifying  or rendering  all  inconsistent existing  laws  ineffectual  or nugatory  and  devoid of any legal force or  binding  effect only  with respect to the exercise of fundamental rights  on and after the date of the commencement of the  Constitution. It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in  contra- vention  of the provisions of any law which, after the  Con- stitution, becomes void with respect to the exercise of  any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is,  will be to give the law retrospective effect. There  is no. fundamental right that a person shall not be  prosecuted and  punished for an offence committed before the  Constitu- tion came into force.  So far as the past acts 31 236 are  concerned the law exists, notwithstanding that it  does not exist with respect to the future exercise of fundamental rights.  We, therefore, agree with the conclusion arrived at by  the High Court on the second question, although on  dif- ferent  grounds.   In  view of that conclusion,  we  do  not consider  it  necessary to examine the reasons of  the  High Court  for its conclusion. In our opinion,  therefore,  this appeal fails, and is dismissed.     FAZL ALI J.--I regret that I cannot agree with the  view which the majority of my colleagues are inclined to take  in this case.     The facts of the case are simple and will bring out  the point  to be decided. On the 9th December, 1949, the  appel-

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lant was arrested and a prosecution was started against  him under  section 18(1) of the Indian Press (Emergency  Powers) Act  (XXIII  of 1931) in the Court of the  Chief  Presidency Magistrate  at  Bombay  for publishing a  pamphlet  in  Urdu entitled  "Railway  Mazdoorun Ke Khilaf  Nai  Sazish."   The prosecution  case  was that the pamphlet  was  a  news-sheet within the meaning of section 2(6) of the Act and that since it  had  been published without the  authority  required  by section  1.5(1) of the Act, the appellant had  committed  an offence punishable under section 18(1) of the Act. While the prosecution was pending, the Constitution of India came into force  on the 26th January, 1950, and thereafter the  appel- lant raised the contention that sections 2(6), 15 and 18  of the Act were void, being inconsistent with article 19(1) (a) of the Constitution and therefore the case against him could not  proceed. Having raised this contention,  the  appellant filed  a petition in the High Court at Bombay under  article 228  of the Constitution asking the High Court to  send  for the record of the case and declare that sections 15 and 18of the  Indian Press (Emergency Powers) Act read  with  section 2(6)  and  (10) thereof were void and  inoperative  and  the petitioner  should  be  ordered  to   be   acquitted.    The petition   was  heard  by a Full Bench of  the  Bombay  High Court, and the learned Judges constituting the Bench, in 237 deciding  the point raised, assumed that the  provisions  of the Act impugned by the appellant were inconsistent with the fundamental  right  guaranteed by article  19(1)(a)  of  the Constitution of India, and held that article  13(1)  had virtually the effect of  repealing  such provisions of existing laws as were inconsistent with any of the fundamental rights and that consequently under section 6 of the General Clauses Act, which is made applicable for the interpretation of the Constitution by  article 367,  pending proceedings  were not affected. The appellant’s petition  to the  High  Court having been dismissed,  he  preferred  this appeal in the Supreme Court.     One  of the points discussed elaborately by the  learned counsel  appearing  for the parties in the course  of  their arguments  was as to what was the effect upon  pending  pro- ceedings  when an Act was repealed or when a  temporary  Act expired.  In Craies on Statute Law, the effect of the expiry of a temporary Act is stated to be as follows :--     "As a general rule, and unless it contains some  special provision to the contrary, after a temporary Act has expired no  proceedings can be taken upon it, and it ceases to  have any  further effect.  Therefore, offences committed  against temporary  Acts must be prosecuted and punished  before  the Act expires, and as soon as the Act expires any  proceedings which  are  being  taken  against a person will  ipso  facto terminate."  (4th Ed., pp. 347-348).     This  statement  of law by Craies was referred  to  with approval and adopted by the Federal Court in J.K. Gas  Plant Manufacturing Co., (Rampur) Ltd., and Others v. King  Emper- or.  (1) As to the effect of the repeal of an Act, the  fol- lowing  passage from Craies book seems to sum up  the  legal position  as it obtained in England before the enactment  of the Interpretation Act of 1889 :-     "When  an  Act  of Parliament is  repealed,"  said  Lord Tenterden in Surtees v. Ellison(2) "it must be [1947] F.C.R. 141 at 166.     (2) [1829] 9 B & C. 752. 238 considered (except as to transactions past and closed) as if it  had never existed.  That is the general  rule."   Tindal C.J.  states the exception more widely.  He says (in Kay  v.

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Goodwin)(1):  ,,  The effect of repealing a  statute  is  to obliterate it as completely from the records of the  Parlia- ment  as if it had never been passed;and it must be  consid- ered  as a law that never existed except for the purpose  of those actions which were commenced, prosecuted and concluded whilst it was an existing law." (P. 350).     Again, Crawford in his book on "Statutory  Construction" dealing  with  the general effect of the repeal  of  an  Act states the law in America to be as follows:---     ’’A repeal will generally, therefore, divest all  incho- ate rights which have arisen under the repealed statute, and destroy  all  accrued causes of action based thereon.  As  a result, such a repeal, without a saving clause, will destroy any proceedings whether not yet begun, or whether pending at the  time  of the enactment of the repealing  Act,  and  not already  prosecuted  to a final judgment so as to  create  a vested right." (Pp. 599-600).     In  a footnote relating to the cases which  the  learned author cites in support of the above proposition, he adds:--     "See Cleveland, etc., R. Co. v. Mumford (Ind.)(2)  where the  repeal of a statute during the trial prevented a  judg- ment from being rendered.  Similarly, there can be no  legal conviction for an offence, unless the act be contrary to law at  the time it is committed; nor can there be  a  judgment, unless the law is in force at the time of the indictment and judgment.  If the law ceases to operate, by its own  limita- tion  or by a repeal, at any time before judgment, no  judg- ment  can be given.  Hence, it is usual in  every  repealing law to make it operate prospectively only, and to insert a a saving  clause, preventing the retroactive operation of  the repeal  and continuing the repealed law in force as  to  all pending prosecutions, and often as to all violations of  the existing law already committed." (1) (1830) 6 Bing. 576.        (2) 197 N.E. 826. 239     The author then proceeds to quote the following  passage from Wall v. Chesapeake & Ohio Ry., Company (1):--     "It  is well settled that if a statute giving a  special remedy  is  repealed without a saving clause  in  favour  of pending  suits  all suits must stop where the  repeal  finds them.   If  final  relief has not been  granted  before  the repeal  went into effect, it cannot be after.  If a case  is appealed,  and  pending the appeal the law is  changed,  the appellate  court must dispose of the case under the  law  in force  when  its decision was rendered. The  effect  of  the repeal  is to obliterate the statute repealed as  completely as if it bad never been passed, and it must be considered as a law which never existed, except for the purposes of  those actions  or suits which were commenced, prosecuted and  con- cluded  while it was an existing law. Pending judicial  pro- ceedings  based  upon  a statute cannot  proceed  after  its repeal.   This  rule holds true until the  proceedings  have reached  a final judgment in the court of last  resort,  for that court, when it comes to announce its decision, conforms it  to  the law then existing, and may therefore  reverse  a judgment  which was correct when pronounced in the  subordi- nate  tribunal from whence the appeal was taken, if  it  ap- pears that pending  the appeal a statute which was necessary to  support the judgment of the lower court has  been  with- drawn by an absolute repeal." (P. 601).     It is  well known that formerly the practice in  England used  to  be to insert in most of the repealing  statutes  a clause  saving  anything  duly done or  suffered  under  the repealed statutes and any pending legal proceeding or inves- tigations.   Ultimately, to dispense with the  necessity  of

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having to insert a saving clause in  almost  every repealing Act,  section 38 (2) was inserted  in   the   Interpretation Act,   1889, which provides that a repeal, unless  the  con- trary intention appears, does not affect the previous opera- tion  of  the repealed enactment or anything  duly  done  or suffered under it and any investigations, legal  proceedings or (1) 125 N.E.20. 240 remedies may be instituted, continued or enforced in respect of  rights,  liabilities and penalties under  the  ;repealed Act, as if the repealing Act had not been passed.     Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met:     "Due   to   the  numerous  troublesome   problems  which constantly arose with the repeal of statutes, as well as  to the numerous cases where hardship was caused, statutes  have been enacted in several States expressly providing that  the repeal  of a statute shall not affect any rights, causes  of action,  penalties, forfeitures, and pending suits,  accrued or instituted under the repealed statute."     In  India, the earliest attempt that was made  to  guard against  the normal legal effect of a repeal is to be  found in  section 6 of Act I of 1868.  This provision was  further elaborated  by section 6 of the General Clauses Act of  1897 which is on the same lines as section 38 (2)of the Interpre- tation  Act of England. The position therefore now in  India as  well as in England is that a repeal has not the  drastic effect  which  it used to have before the enactment  of  the Interpretation Act in England or the General Clauses Act  in this country.  But this is due entirely to the fact that  an express  provision  has  been made in  those  enactments  to counteract that effect.  Hence, in those cases which are not covered  by  the language of the General  Clauses  Act,  the principle  already  enunciated will  continue   to  operate. The  learned  AttorneyGeneral  had to concede  that  it  was doubtful  whether section 6 of that Act is applicable  where there is a repeal by implication, and there can be no  doubt that  the law as to the effect of the expiry of a  temporary statute  still remains as stated in the books, because  sec- tion 6 of the General Clauses Act and section 38 (2) of  the Interpretation  Act have no application except where an  Act is repealed.  It should be remembered 241 that  the soundness of the law which has  been  consistently applied  to cases governed by statutes which have ceased  to be  in  force, by reason of having been repealed  or  having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule pecul- iar only to the common law of England.  It is the law  which has been enunciated by eminent Judges both in England and in America and is based on good sense and reason.     I  shall now proceed to consider what would be the  cor- rect legal position, when a provision of an existing law  is held  to be void under article 13 (1) of  the  Constitution. From  the earlier proceedings before the Constituent  Assem- bly, it appears that in the original draft of the  Constitu- tion, the words "shall stand abrogated" were used instead of "shall be void," in article 13 (1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly  done or suffered under the existing  law.  Ultimately, the  article  emerged  in the form in  which  it  stands  at present, and the words "shall stand abrogated" were replaced

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by the words "shall be void." If the words "stand abrogated" had  been there, it would have been possible to  argue  that those  words would have the same effect as repeal and  would attract  section  6 of the General Clauses  Act,  but  those words  have  been abandoned and a  very  strong  expression, indeed  the  strongest expression which could be  used,  has been used in their place.  The meaning of the word "void" is stated  in Black’s Law Dictionary (3rd Edn.) to be  as  fol- lows:---     "null  and void; ineffectual; nugatory; having no  legal force or binding effect;unable in law to support the purpose for which it was intended; nugatory and ineffectual so  that nothing can cure it; not valid."     A  reference  to  the Constitution will  show  that  the framers thereof have used the word "repeal" wherever  neces- sary  (see articles 252, 254, 357, 372 and 395).  They  have also used such words as "invalid" (see 242 articles  245,  255 and 276), "cease to  have  effect"  (see articles  358 and 372),’ ’shall be inoperative",  etc.  They have used the word "void" only in two articles, these  being article 13 (1) and article 154, and both these articles deal with  cases where a certain law is repugnant to another  law to  which greater sanctity is attached. It  further  appears that where they wanted to save things done or omitted to  be done under the existing law, they have used apt language for the purpose; see for example articles 249, 250,357, 358  and 369.   The thoroughness and precision which the  framers  of the  Constitution  have  observed in the  matters  to  which reference has been made, disinclines me to read into article 13 (1) a saving provision of the kind which we are asked  to read into it.  Nor can I be persuaded to hold that  treating an  Act  as void under article 13 (1) should have  a  milder effect upon transactions not past and closed than the repeal of  an Act or its expiry in due course of time. In my  opin- ion,  the strong sense in which the word "void" is  normally used and the context in which it has been used are not to be completely ignored.  Evidently, the framers of the Constitu- tion did not approve of the laws which are in conflict  with the fundamental rights, and, in my judgment, it would not be giving  full  effect to their intention to  hold  that  even after  the Constitution has come into force, the laws  which are  inconsistent with the fundamental rights will  continue to  be treated as good and effectual laws in regard to  cer- tain matters, as if the Constitution had never been  passed. How such a meaning can be read into the words used in  arti- cle 13 (1), it is difficult for me to understand. There  can be  no doubt that article 13 (1)will have  no  retrospective operation,  and transactions which are past and closed,  and rights which have already vested, will remain untouched. But with  regard  to inchoate matters which were  still      not determined  when  the Constitution came into force,  and  as regards proceedings whether not yet begun, or pending at the time  of  the enforcement of the Constitution  and  not  yet prosecuted  to a final judgment, the very  serious  question arises as to whether a law which 243 has  been  declared  by the Constitution  to  be  completely ineffectual  can  yet be applied. On principle and  on  good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no  longer be applied.  In R. v. Mawgan (Inhabitants)(1) a  presentment as  to  the non-repair of a highway had been made  under  13 Geo.  3,  c. 78, s. 24, but before the case came  on  to  be tried, the Act was repealed. In that case, Lord Denman  C.J.

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said:  "If the question had related merely to  the  present- ment,  that no doubt is complete. But dum loquimur, we  have lost the power of giving effect to anything that takes place under  that proceeding." And Littledale J. added:  "/do  not say  that what is already done has become bad, but  that  no more can be done." In my opinion, this is precisely the  way in which we should deal with the present case.     It  was  argued at the Bar that the logical  outcome  of such  a view would be to hold that all the  convictions  al- ready  recorded and all the transactions which  are  closed, should  be reopened, but, in my opinion, to argue  on  these lines  is  to overlook what has been the  accepted  law  for centuries,  namely,  that  when a law is  treated  as  dead, transactions which are past and closed cannot be revived and actions  which  were  commenced,  prosecuted  and  concluded whilst the law was operative cannot be reopened.     In the course of the arguments, a doubt was also  raised as  to  what would be ’the effect in the case of  an  appeal pending  when the Constitution came into force, from a  con- viction already recorded before the 26th January, 1950.  The law  applicable  to such a situation is well-known  and  has been correctly summed up by Crawford in these words:--     "Pending  judicial  proceedings  based  upon  a  statute cannot proceed after its repeal.  The rule holds true  until the  proceedings have reached a final judgment in the  court of  last resort, for that court, when it comes  to  announce its decision, conforms it to the law then existing, and  may therefore reverse a judgment which was (1) (1888) 8 A. & E. 496. 244 correct  when  pronounced in the subordinate  tribunal  from whence  the  appeal was taken, if it appears  that   pending the.  appeal  a statute which was necessary to  support  the judgment  of the lower court has been withdrawn by an  abso- lute repeal."     I  think  I should at this stage deal briefly  with  two points  which were raised in the course of the arguments  in support  of  the opposite view.  It was urged in  the  first place  that  without there being a saving clause  to  govern article 13 (1), it can be so construed as to permit offences committed  prior to the 26th January, 1950, to be  punished. The  argument has been put forward more or less in the  fol- lowing  form. The law which is said to be in  conflict  with the  fundamental  rights  was a good   law  until  the  25th January,  and,  since article 13  (1) is to   be   construed prospectively,  and   not     retrospectively,  every    act constituting  an  offence   under the  old  law  remains  an offence and can be punished even after the 26th January.  It seems  to  me  that the same argument could  be  urged  with reference  to  matters which constituted  offences  under  a repealed Act or a temporary Act which has expired. But  such an argument has never succeeded. The real question is wheth- er  a person who has not been convicted before the  Act  has ceased  to  exist  or ceased to be effectual  can  still  be prosecuted  under such an Act.  The answer to this  question has  always  been in the negative, and I do not  see  why  a different answer should be given in the case of an Act which has be-come void, i.e., which has become so ineffectual that it cannot be cured.     The second argument which also has failed to impress  me is that if section 6 of the General Clauses Act does not  in terms apply, the principle underlying that section should be applied. The answer to this argument is that the Legislature in  its wisdom has confined that section to a very  definite situation, and, though it was open to it to make the section

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more  comprehensive and general, it has not done so.  It  is well-known  that situations similar to those which arise  by reason of the repeal of an Act have arisen in regard to Acts 245 which  have expired or Acts which have been declared  to  be void, and, though such situations must have been  well-known to  the  Legislature, they have not been  provided  for.  In these  circumstances,I  do not see how the  very  clear  and definite provision can be enlarged in the manner in which it is attempted to be enlarged. Besides, I have not come across any case in which the principle underlying section 38 (2) of the  Interpretation Act or section 6 of the General  Clauses Act has been invoked or applied.     In the present case, we have to look at the state of the law  at  the time when the question arises as to  whether  a person  has committed any offence. If we find that  the  law which made the act an offence has become completely ineffec- tual  and nugatory, then neither can a charge be framed  nor can  the accused person be convicted. In my opinion, if  the assumption on which the High Court has proceeded is correct, the appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused.     MAHAJAN  J.--The appellant is the secretary of the  Peo- ple’s Publishing House Ltd., Bombay. In September, 1949,  he published  a pamphlet entitled "Railway Mazdoorum Ke  Khilaf Nai Sazish."On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18 (1) of the  Indian Press (Emergency Powers) Act (XXIII  of  1931)in the  Court of the Chief Presidency Magistrate at  Bombay  in respect  of this pamphlet, as it had been published  without any authority as required under section 16 of the said  Act. On  the  8th  March, 1950, an application was  made  on  his behalf  in  the  High Court of Judicature  at  Bombay  under article  228 of the Constitution of India for  quashing  the proceedings  started against him and it was  contended  that sections 16 and 18 of Act XXIII of 1931 were ultra vires  of Part III of the Constitution of India and were thus void and had  no effect whatsoever and no prosecution launched  under these sections could be proceeded with after the coming into force of the Constitution. The High Court refused this 246 application and held that the proceedings instituted against the  appellant before the commencement of  the  Constitution could not be affected by the provisions of the  Constitution that  came into force on the 26th January, 1950.   Dissatis- fied  with  this decision, the appellant has  preferred  the present appeal to this court.     The  sole point to decide in the appeal is whether  pro- ceedings instituted under section 18 (1) of the Indian Press (Emergency Powers) Act, XXIII of 1931, before the  commence- ment of the Constitution of India are affected by its provi- sions.  The  High Court has answered this  question  in  the negative and, in my opinion, rightly.     I  am in respectful agreement with the  observations  of the learned Chief Justice of Bombay that it is difficult  to believe that the Constituent Assembly contemplated that with regard  to the laws which it was declaring to be void  under article  13  all  vested rights and  all  proceedings  taken should be disturbed and affected by particular laws  ceasing to  be  in  force as a result of  inconsistencies  with  the fundamental  rights  guaranteed to the citizens. It  is  not arguable  and was not argued that Part III of the  Constitu- tion has any retrospective operation. The appellant was  not possessed of any fundamental rights in September, 1949, when he  published the pamphlet in question and his  act  clearly

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came within the mischief of the provisions of section 18  of Act XXIII of 1931 and he thus became liable to the penalties prescribed therein.     It  was, however, contended by Mr. Chari,   the  learned counsel  for the appellant, that the effect of the  language employed  in article 13 (1)of the Constitution was that  the proceedings  commenced before the coming into force  of  the Constitution  could not be continued after its  commencement under the laws that became inconsistent with its provisions. For  this  proposition  he placed reliance on  the  rule  of construction  stated in Maxwell on "Interpretation of  Stat- utes ", p. 404, which is to the following effect :-- 247     "Where  an Act expired or was repealed, it was  formerly regarded,  in the absence of provision to the  contrary,  as having never existed, except as to matters and  transactions passed and closed. Where, therefore, a penal law was broken, the  offender could not be punished under it if  it  expired before he was convicted, although the prosecution was  begun while  the  Act was still in force." This rule seems  to  be based  on a statement of Tindal C.J. in Kay  v.  Goodwin(1). The  learned Chief Justice made the  following  observations :--     "I  take  the effect of repealing a statute  to  be,  to obliterate  it as completely from the records of  Parliament as if it had never been passed; and it must be considered as a  law  that never existed except for the purpose  of  those actions  which  were  commenced,  prosecuted  and  concluded whilst it was an existing laW."     This  was the rule of the English common law  which  was applied  in cases of statutes which were repealed and  under this rule all pending actions and prosecutions could not  be proceeded with after the repeal of the law under which  they were  started.  This rule was however changed by the  Inter- pretation  Act of 1889, section 38. Therein it  was  enacted that unless the contrary intention appears, no repeal is  to affect  any investigation, legal proceeding,  including  the initiation  of criminal proceedings, or remedy in respect of any  such right, privilege, obligation, liability,  penalty, forfeiture,  or  punishment and  any   such   investigation, legal  proceeding or remedy may be instituted, continued  or enforced and any such penalty, forfeiture or punishment  may be  imposed as if the repealing Act had not been passed.   A similar provision exists in India in section 6 of the Gener- al  Clauses Act of 1868 and 1897. The High Court  held  that the provisions of article 13(1) were analogous to the repeal of a statute and therefore section 6 of the General  Clauses Act had application to the construction of these  provisions and that being so, the coming into force of the Constitution did (1) 180 E.R. 1403; (1830) 6 Bing. 576. 248 not  in  any way affect the continuance of  the  proceedings that had been commenced against the appellant under the  law that  was  in force at the time of the  publication  of  the pamphlet.  Mr.  Chari contended that the High Court  was  in error in applying the provisions of section 6 of the General Clauses  Act to the interpretation of article 13 (1) of  the Constitution inasmuch as the provisions of this article were not  analogous to repeal and did not amount to a  repeal  of the  existing  law. He contended that a repeal  of  the  law could  only be by the legislature but that under article  13 power had been given to the court to declare any law  incon- sistent  with the Constitution to be void; in  other  words,

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the  power  given was larger in scope and  effect  than  the power  of  repeal and the effect of the declaration  that  a certain statute was void as it was repugnant to the  freedom guaranteed  by the Constitution was to wipe out the  statute altogether  from  the date of the coming into force  of  the Constitution  and  that  nothing could be  done  under  that statute with effect from the 26th January, 1950, and  there- fore  the court could not frame a charge under the law  that was declared void, or pass a judgment of conviction  against a person under a law that had been declared void. Mr.  Chari went to the length of saying that a statute which was incon- sistent with the Constitution became dead on the coming into force of the Constitution and under a dead statute no action could be taken whatsoever.  He emphasised his contention  by stressing  the fact that freedoms guaranteed by Part III  of the  Constitution  could  not be tainted  by  keeping  alive prosecutions  and  actions under laws framed  by  a  foreign government which were inconsistent with those freedoms.   It was  said that some of the laws which the  Constitution  in- tended  to  be declared void by the court because  of  their repugnancy  to  the  fundamental rights  guaranteed  to  the citizen  by  the  Constitution were those  which  a  foreign government  had enacted to keep the people of  this  country under its domination and that to continue prosecutions under these  laws after the coming into force of the  Constitution would be wholly contrary and 249 repugnant  not  only to the letter of the  Constitution  but also  to  its  spirit.  It was  conceded  that  transactions finally  closed  under such laws could not be  reopened  but that  prosecutions and actions which were  still  continuing should  be stopped and further action concerning them  would become illegal and would be contrary to the freedoms guaran- teed  by the Constitution.  Reference was made  to  articles 249,  250, 357, 358, and 369 to show that the scheme of  the Constitution was that wherever it intended that the proceed- ings commenced under existing laws which became  inoperative on the 26th January, 1950. were to continue after that date, apt phraseology had been used to indicate that intention but that in article 13 no such saving words were used and there- fore it must be presumed that the Constituent Assembly   did not intend that proceedings taken under such laws were to be continued after the 26th January, 1950.     Article 13 (1) of the  Constitution  is  in  these terms :--     "All laws in force in the territory of India immediately before  the commencement of this Constitution, in so far  as they  are  inconsistent with the provisions  of  this  Part, shall, to the extent of such inconsistency, be void. ’ ’     The freedom guaranteed to the citizen which has applica- tion  to the case of the appellant is in article 19 (1)  (a) and this article is in these terms :--     "All citizens shall have the right to freedom of  speech and expression."     It is admitted that after the 26th January, 1950,  there has been no infringement of the appellant’s right of freedom of  speech  or expression.  In September, 1949, he  did  not enjoy  either complete freedom of speech or full freedom  of expression.  It is in relation to the freedom guaranteed  in article  19(1) of the Constitution to the citizen  that  the provisions  of article 13 (1) come into play.  This  article does not declare any law void independently of the existence of  the  freedoms guaranteed by Part III.  A citizen must be possessed 250

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of  a fundamental right before he can ask the court  to  de- clare  a  law which is inconsistent with it void ;but  if  a citizen is not possessed of the right, he cannot claim  this relief.  The appellant in the present case was not possessed of  any fundamental right on the day that he  published  the pamphlet and in these circumstances the question is  whether he  can claim protection under the rights guaranteed to  him on  26th January, 1950, for escaping the consequence of  his act on any principles of construction of statutes.   Accord- ing to the contention of the learned counsel, the principles applicable to repealed statutes are not in terms  applicable to such a case, whether they are to be found in the rules of the  common law of England or whether they are contained  in the  Interpretation  Act or the General Clauses  Act.  Those rules  are applicable to cases either of repeal or to  cases of a statute dying a natural death by efflux of time.   None of those however have any application to the construction of statutes  framed  in  languages like the  one  contained  in article  13  (1) of the Constitution. Besides  the  rule  of construction which applies to repealed statutes or to tempo- rary statutes our attention was not drawn to any other  rule of construction under which a person who commits an  offence against an Act during its existence as a law becomes  unpun- ishable  on its termination. Both on considerations of  con- venience  and  also on grounds of justice and  reason  I  am inclined  to  think that penalties incurred under a  law  in force  at the time when the act was committed would  survive its  extinction so that persons who violate  its  provisions might afterwards be punished. Persons who during the contin- uance  of a statute have obtained rights under it cannot  be affected by a declaration that the statute with effect  from a certain date will become an inoperative statute.  When  in the  case of repeal of a statute, which according to  Tindal C.J.  obliterates it completely from the records of  Parlia- ment as if it had never been passed, the common law rule has been  abrogated  by statute, it is difficult to  apply  that rule on any sentimental grounds at this date to the case  of statutes which are declared void or declared to have 251 no effect whatsoever after a certain date only. The  expres- sion "void" has no larger effect on the statute so  declared than the word "repeal". The expression "repeal" according to common  law rule obliterates a statute completely as  if  it had  never been passed and thus operates retrospectively  on past  transactions in the absence of a saving clause  or  in the  absence  of  provisions such as are  contained  in  the Interpretation  Act,  1889, or in the General  Clauses  Act, 1897, while a provision in a statute that with effect from a particular date an existing law would be void to the  extent of  the repugnancy has no such retrospective  operation  and cannot  affect pending prosecutions or actions  taken  under such  laws.  There is in such a situation  no  necessity  of introducing a saving clause and it does not need the aid  of a  legislative  provision  of the nature  contained  in  the Interpretation Act or the General Clauses Act. To hold  that a  prospective  declaration that a statute is  void  affects pending cases is to give it indirectly retrospective  opera- tion  and that result is repugnant to the clear  phraseology employed  in the various  articles  in Part III of the  Con- stitution.     The contention of the learned Attorney-General that  the phraseology  employed in article 13 (1) of the  Constitution clearly  indicates that there was no intention to  give  any retrospective operation to the provisions of Part III of the Constitution and that the declaration that laws repugnant to

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Part  III  of the Constitution are void only  operates  from 26th  January,  1950, has, in my opinion, force.   It  seems clear that an existing statute in spite of a  declaration-by court  that it is void remains in force till the 25th  Janu- ary, 1950, and continues to remain on the statute book  even after  the 26th January, 1950, except that no effect can  be given  to any of its provisions which are repugnant  to  the fundamental  rights  guaranteed by  the  Constitution.   The effect of article 13 (1)is only prospective and it  operates in respect to the freedoms which are infringed by the  State subsequent to the coming into force of the Constitution  but the past acts of a person which came within the mischief  of the law then in force are not affected 33 252 by Part III of the Constitution.  The reference made by  Mr. Chari to different articles of the Constitution where saving clauses  have been inserted to save pending  proceedings  or acts is not very helpful inasmuch as where a certain  provi- sion  has  a retrospective effect, then it is  necessary  to introduce a saving clause if things done in the past have to be  saved from the retrospective effect of the statute;  but where the provision is clearly not intended to be retrospec- tive,  then the necessity of saving clause does  not  arise. The  provisions of the Constitution to which Mr. Chari  made reference were of the nature that but for the saving  clause the effect of them would be retrospective in character under the accepted canons of construction of statutes.     Mr. Chari’s argument that it could not have been intend- ed  by  the Constitution makers  that  prosecutions  started under  laws passed by a foreign power and which  affect  the freedoms guaranteed to the citizen under the Constitution in Part III were to be continued after the dawn of independence and  after India had become a democratic republic to a  cer- tain  extent  seems to me to be plausible;  but  on  further thought I have  come  to the conclusion that this   argument appeals more to the heart than to the head and is not  based on  any sound principle of construction of  statutes.  Under the  accepted canons of construction of statutes, if  a  law has no retrospective operation of any kind whatsoever,  then such a law cannot affect pending prosecutions or actions and the  Constitution not being retrospective in  its  operation could  not therefore in any way affect prosecutions  started for  offences that were complete under the law in  force  at the  time they were committed.  The cure for such an  incon- gruous  state of affairs and the relief for  such  situation lies  with the Government and the legislature and  not  with the  courts. If a case of sedition against an alien  govern- ment is continued after the coming into force of the Consti- tution,  the court cannot decline to proceed with it and  to pass some sentence howsoever lenient, against an accused  by placing a construction on the Constitution 253 which  gives it retrospective operation, but the  government of  the republic or its legislature can always by  executive or legislative action bring to a close all such  distasteful proceedings and not only can it do so in the case of pending prosecutions but it can give relief also to persons who have suffered under laws of sedition against an alien  government and are suffering terms of imprisonment in the jails of  the Republic.   If  punishment for contravention  of  such  laws cannot be given to offenders because decision in their  case has  been delayed beyond the 26th January, 1950, it will  be highly  unreasonable not to give relief and to  let  punish- ments continue in case of persons, the sentence against whom

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have already been passed under laws which were solely enact- ed  to maintain the alien rule.  Both cases, in my  opinion, stand on the same footing and relief in those cases lies not with courts but with the executive government of the  Repub- lic.   If Mr. Chari’s argument that on the  commencement  of the  Constitution  on 26th January,  1950,  all  proceedings started  under laws that became repugnant  and  inconsistent with  the Constitution were to be stopped was  accepted,  it would  lead  to very strange results, and Mr. Chari  had  to concede that it would be so. Suppose a person was  convicted of the offence of sedition or of an offence under one of the safety  Acts, the provisions of which are  repugnant      to the  Constitution,  but his appeal was pending in  the  High Court against his conviction, then, according to the conten- tion of Mr. Chari, the court has no power to hear the appeal because the law being void, no further action could be taken in the matter. The result would be that the Court would  not be able to hear an appeal and to give relief to the  accused if  he  had been erroneously convicted. If  a  court  cannot frame  a  charge  or convict a person under a  law  that  is repugnant to the Constitution equally it would not be  enti- tled  to  continue  any proceeding for the  benefit  of  the accused under cover of such a law.     Great deal of emphasis was laid during the course of the argument  on the meaning to be given to the word "void"  and it was said that this word in its widest 254 sense  meant that the law declared void was void ab  initio, i.e, from the very reception of the law it was bad.  H  that meaning was given to this word, then it would mean that  all laws  existing  on the 26th January, 1950,  and  which  were declared  void  by  article 13 (1) because  of  their  being repugnant to the Constitution were bad when they were passed by  the  legislature, though at the same  time  the  subject enjoyed no fundamental rights. It was sought to give to this word  "void" the same wide meaning as was given to the  word "repeal"  by Tindal C.J. in the case above mentioned.   With every  respect  to  the great Judges  who  administered  the common  law in England during the earlier period of  British history  and in all humility I venture to say that the  rule evolved  by them qua "repeal" was of an  artificial  nature. The  dictum of the learned Chief Justice that a repeal of  a statute  obliterates it completely from the records of  Par- liament  as if it had never been passed is to my mind  based on an extended meaning of that expression than its  ordinary dictionary sense. When a statute has been in operation,  say for a period of fifty years, people have suffered  penalties under it or have acquired rights thereunder and the law  has been enforced by courts for such a long period, then to  say that  when it is repealed it is completely  obliterated  and that  it  never had any existence and was  never  passed  by Parliament,  is rather saying too much and is ignoring  hard real facts and amounts to shutting one’s eyes to the actual- ities  of  the situation.  It would be more  consonant  with reason and justice to say that the law existed and was  good at  the time when it was passed but that since the  date  of its  repeal  it  has no longer any  effect  whatsoever.  The Parliament may however say in the repealing statute that  it will have retrospective operation and it may also  prescribe the  limits of its retrospectivity and to that  extent  past transactions  may  be affected by it. Because  the  rule  of common  law evolved by the English Judges was not in  conso- nance  with reason and justice, a legislative  practice  was evolved  under  which  each repealing  statute  contained  a saving clause under

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255 which  past transactions were not allowed to be affected  by the repeal. Eventually the rule of common law was completely abrogated by the enactment of the Interpretation Act,  1889. In India in the year 1868, section 6 of the General  Clauses Act  enacted  what was later on enacted in  England  in  the Interpretation Act and for over eighty years it is this rule of  construction that has been adopted in this country,  the rule being that past transactions, whether closed or  incho- ate  cannot be affected by the repeal of an earlier  statute or  by the coming into effect of a new one. In  my  opinion, the  rule  contained in the General Clauses Act and  in  the English Interpretation Act is more in consonance with reason and justice and is also a rule of convenience and should  be followed in this country, in preference to the rule  evolved by  the English Judges in the earlier part of English  legal history.  Be that as it may, it is unnecessary in this  case to  have resort either to the rule of common law or  to  the General  Clauses  Act as the language of article  13  itself furnishes a solution to the problem.     Reference  was  also made to the  rule  of  construction applicable  to  temporary  statutes.  In the  case  of  such statutes,  the rule of English law is that after the  expiry of the life of the statute no action can be taken under  the expired statute unless an intention can be gathered from its provisions  to the contrary, but transactions  already  com- pleted  during the period that these statutes had the  force of  law are not in any way affected. That rule seems  to  be quite logical and is consonant with reason and justice. When the  life  of  a statute is limited and it  dies  a  natural death,  then no question either of its retrospective  or  of prospective  nature arises. If the intention of the  statute was  that  anything done under it has to continue,  then  it will be allowed to continue; otherwise nothing done under it will be continued after its natural death. Any rule applica- ble to construction of such a statute has no application  to the  interpretation  of the Constitution of  India  and  the reference  to this rule, in my opinion, is not relevant  for the decision of this 256     Reference was also made to the rule of construction laid down   by  the  American courts in respect of  statutes  de- clared void because of their being repugnant to the  Consti- tution of the United States of America.  It is obvious  that if  a statute has been enacted and is repugnant to the  Con- stitution,  the  statute is void since its  very  birth  and anything done under it is also void and illegal.  The courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have  been  set  aside by issuing appropriate  writs.  If  a statute  is  void from its very birth   then  anything  done under  it, whether closed, completed, or inchoate,  will  be wholly illegal and relief in one shape or another has to  be given  to  the person affected by such  an  unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the Government  of  India Act, 1935.  Of course, if any  law  is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts  in India as is followed in America and even  convic- tions  made under such an unconstitutional law will have  to be  set aside by resort to exercise of powers given to  this court by the Constitution.     The  only  rule of construction applicable to the inter- pretation of article 13 of the Constitution is the one  that

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concerns the determination of the question whether a statute is  intended to have any retrospective operations.   If  the well-known canons of construction on this point are applied, then  it has to be held that article 13 was not intended  to have  any retrospective effect whatever; on the other  hand, its language denotes  that it recognized the validity of the existing  laws  up to the date of the  commencement  of  the Constitution and even after its commencement except  to  the extent of their repugnancy to any provisions of Part III  of the  Constitution.  On this construction of  article  13  it cannot  affect  any  past transactions,  whether  closed  or inchoate.  Reference in this connection may be made  to  the provisions of 257 article  372(2) of the Constitution. Under this article  the President has been given power to adapt existing laws and to bring them in accordance with the articles of the  Constitu- tion  by a process of amendment, repeal or  adaptation.  The President  could have repealed the Press (Emergency  Powers) Act and brought the law in accordance with the provisions of Part  III of the Constitution and if he had used the  powers of  repeal given to him by  this article, the provisions  of the General Clauses Act would have been immediately attract- ed  to  that situation and the pending  prosecution  of  the appellant would have to be continued in view of those provi- sions.   If in that situation the Constitution  contemplates the continuance of pending proceedings under existing  laws, it becomes difficult  to place a different interpretation on the  phraseology employed in article 13(1) of the  Constitu- tion,  than the one that is in accord with  that  situation. By the construction that I have placed on this article  that incongruous result is avoided.     In view of the decision above arrived at it seems unnec- essary  to  pronounce  on the alternative  argument  of  the learned Attorney-General to the effect that the expression ’ ’void’, used in article 13 of the Constitution is synonymous with  the word "repeal" and that it was an apt word used  in the  context  to indicate the same intention.  It  was  said that  the  word  "repeal" was not used in  the  article  but instead  the expression "void" was employed therein  by  the draftsmen  in  order to include within its  ambit  cases  of custom  and  usage  where such custom and  usage  were  also repugnant to the provisions of Part III of the Constitution. It was also urged that by article 13 (1)the Constitution  in express terms repealed all laws inconsistent with its provi- sions and that the only power given to the court was to find out which of these laws was inconsistent with the provisions of  Part III.  The declaration that these laws were void  or repealed  was by the force of the provisions of  article  13 itself  and did not result from the decision of the  courts. It is also unnecessary to examine  the further  argument  of the  learned 258 Attorney-General that in any case since 1868 in this country the rule of construction of statutes is the one laid down by section  6 of the General Clauses Act,1868, and that  though in  express terms that statute may not be applicable to  the construction of article 13(1) of the Constitution, yet  that rule  is a rule of justice, equity and good  conscience  and has  become a rule of common law in this country and  should be  applied even to cases where statutes become void by  rea son  of their being repugnant to the Constitution.       For the reasons given above I see no force in this appeal and I would accordingly dismiss it.     MUKHERJEA  J.-I  am in entire agreement  with  the  view

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taken by my learned brother Fazl Ali J. in his judgment  and I concur both in his reasons and his conclusion. Appeal dismissed. Agent for the appellant: P.G. Gokhale. Agent for the respondent: P.A. Mehta.