Keshavan Madhava Menon Vs The State of Bombay

Court: Supreme Court of India.

Case Type: Civil Appeal.

Citation:  1951 AIR 128; 1951 SCR 228.

Case No.: 9 of 1950.

Date of Judgment: 22/01/1951.

Appellant: Keshavan Madhava Menon.

Respondent: The State of Bombay.

Bench: 

• Chief Justice Hiralal J. Kania.
• Justice Sudhi Ranjan Das.
• Justice Sayyad Fazal Ali.
• Justice M. Patanjali Shastri.
• Justice Mehr Chand Mahajan.
• Justice N. Chandrashekhara Aiyar.
• Justice B.K. Mukherjea

Statutes Referred:

• Constitution of India.
• Press and Registration of Books Act (XXV of 1867).
• Indian Press (Emergency Powers) Act, 1931.
• General Clauses Act, 1897.
• Interpretation Act, 1889 of the Parliament of the UK.

Facts:

• The petitioner was the Secretary of People’s Publishing House India Ltd.
• In September 1949, a pamphlet titled ‘Railway Mazdooron ke khilaaf nai Zazish’ was allegedly published in Bombay by the petitioner as the company’s secretary.
• The said pamphlet was said to violate section 15 (1) and section 18 (1) of the Indian Press (Emergency Powers) Act, 1931.
• In this case, a prosecution was started against the petitioner by the respondent in the Court of Chief Presidency Magistrate, Bombay. (Registered as case no. 1102/P of 1949).
• The Constitution of India came into force on 26th January, while the proceedings in case no. 1102/P of 1949 were still pending.
• On 3rd March 1950, the petitioner filed a written statement in court stating that after the commencement of the Constitution, the definition of ‘news sheet’ according to the Indian Press (Emergency Powers) Act, 1931 was ultra vires and void because of Article 19 1 (a) read with Article 13 of the Constitution.
• The petitioner requested that the proceedings in the matter be stayed until the High Court decided on the matter of law.
• Accordingly, a petition was filed in the High Court on 7th March 1950 praying that the sections 15 (1) and 18 (1) of the Indian Press (Emergency Act), 1931 be declared void in light of articles 13 and 19 (1) (a) of the Constitution.
• During this petition’s pendency, charges were framed against the petitioner by the Chief Presidency Magistrate on 23rd March 1950 under section 18 of the Indian Press (Emergency Powers) Act 1931.
• During the hearing of the petition on 12th April 1950, the High Court took the view that the word ‘void’ was used in Article 13 in the same sense as the word ‘repealed’, which attracted section 6 of the General Clauses Act.
• Therefore, the High Court held that the proceedings under Indian Press (Emergency Act), 1931 were not affected, even if the Act were inconsistent with the fundamental rights conferred by the Constitution, and dismissed the petitioner’s application.
• The petitioner appealed before the Supreme Court on the strength of the High Court’s certificate under Article 132 (1) of the Constitution.

Issue:

• Whether Retrospective prosecution for the violation of the Indian Press (Emergency Powers) Act,1931 is in contravention with India’s Constitution passed during the trial’s pendency?
• Should all laws inconsistent with the newly formed Constitution of India be declared void-ab-initio?
• What was the effect on pending proceedings when an Act is repealed, or a temporary statute is expired?

Contentions:

Petitioner’s Contentions:

• The pamphlet was published as a ‘book’ under section 1 of the Press and Registration of Books Act (XXV of 1867).
• The provisions of the Act were duly complied with.
• The Indian Press (Emergency Powers) Act, 1931 was one of the many repressive laws passed by a foreign Government to stifle the liberty of the Indian citizens, especially the press.
• The Constitution, which India’s free citizens gave to themselves, guarantees fundamental rights to the citizens.
• Article 13 aimed to remove all the vestiges of subordination to the oppressive laws passed by the foreign Government and declared laws inconsistent with the Constitution as void as if they had never been passed or existed.
• A prosecution based on such an archaic law was against the spirit of the Constitution.
• 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) as the provisions of the article were not analogous to repeal and did not amount to the repeal of the existing law.

Respondent’s Contentions:

• The pamphlet published was a ‘news sheet’ within the meaning of section 2 (6) of the Indian Press (Emergency Powers) Act, 1931.
• The said pamphlet was published without the necessary authority mentioned in the Act and was therefore punishable under the same Act.

Obiter Dicta:

By Chief Justice Hiralal J. Kania, Justice Sudhi Ranjan Das, Justice M. Patanjali Shastri, Justice N. Chandrashekhara Aiyar: 

• Article 13 (1), with which we are concerned for 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.”
• All statutes are prima facie prospective unless expressly or by necessary implications made to have a retrospective application.
• Nothing in the language of Article 13 (1) can be read as intending to give it retrospective operation.
• The fundamental rights mentioned in Part III of the Constitution were given to India’s citizens for the first time. As they came into force only and only after the commencement of the Constitution on 26th January 1950, questions regarding the inconsistency of the existing laws must only arise on and from the date those rights came into being.
• There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force.

Justice Mehr Chand Mahajan:

• In September 1949, the appellant did not enjoy the right to freedom of speech and expression. The said was granted to the appellant by the commencement of the Constitution on 26th January 1950. A citizen must possess a fundamental right before he can pray to the courts to protect them. A citizen cannot claim relief if the requests are not possessed in the first place.

By Justice Saiyid Fazal Ali and Justice B.K. Mukherjea :

• Though Art. 13(1) has no retrospective operation, and transactions of the past which are 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 committed 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.
• Unless mentioned otherwise, once a law or an act is repealed or a temporary act expires, such an act or law must be treated as if it never existed. The effect of repealing a statute means obliterating it from the records of the parliament as if it had never been passed.
• If the law which made an act an offence has been rendered ineffectual and nugatory, then neither a charge can be initiated by a person nor can the person be convicted.
• The word ‘void’ has only been used in two articles of the Constitution- 13 (1) and 154. Both these articles deal with cases where a specific law is repugnant to some other law with greater sanctity.
• Black’s Law Dictionary (3rd Edn.) defines void as follows:— “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.”
• In other articles, words such as ‘repeal’, ‘cease to have effect’ shall be inoperative have been used.
• The precision with which the framers of the Constitution have used language indicates that they intended that laws inconsistent with the Constitution’s provisions be completely void and nugatory.

Judgement:

• Appeal Dismissed
• Article 13 (1) has no retrospective operation and is wholly prospective in its operation.
• Prosecution of the appellant can be proceeded with.

Rationale:

• If it were against the Constitution’s spirit to continue proceedings under such a void law, then it would also be against the spirit of the Constitution that other men who were convicted under the said law before the Constitution came into force continue to rot in jail.
• Article 13 (1) did not make the existing laws inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provided that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency.
• A citizen must possess a fundamental right before he can pray to the court to declare a law that is inconsistent with it void.

Conclusion:

• A court of law must interpret the spirit of the Constitution 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 opinion.

Prepared by Mihir Poojary.