Keshavan Madhava Menon v State of Bombay (Supreme Court, 1951) — Article 13(1) is prospective

It fixes the meaning of clause (1) of Article 13. A pre-Constitution law inconsistent with a fundamental right is void only for the future exercise of that right; it is not wiped off the statute book, and what was done under it before 26 January 1950 stands. Every later case on eclipse begins here.

On 9 December 1949 the appellant, secretary of the People's Publishing House Ltd., Bombay, was arrested and prosecuted under section 18(1) of the Indian Press (Emergency Powers) Act, 1931 before the Chief Presidency Magistrate, Bombay, for publishing an Urdu pamphlet, "Railway Mazdoorun Ke Khilaf Nai Sazish". The prosecution's case was that the pamphlet was a news-sheet within section 2(6) of the Act published without the authority required by section 15(1). While the prosecution was pending the Constitution came into force on 26 January 1950. The appellant then contended that sections 2(6), 15 and 18 of the Act were void as inconsistent with Article 19(1)(a), so that the case could not proceed, and moved the Bombay High Court under Article 228 to declare them void and inoperative. The matter reached a Bench of seven (Kania C.J., Fazl Ali, Patanjali Sastri, Mahajan, Mukherjea, S.R. Das and Chandrasekhara Aiyar JJ.).

Does Article 13(1) operate retrospectively, so that a pending prosecution for an act done before the Constitution under a law now inconsistent with Part III must fail?

No retrospective operation. "Every statute is prima facie prospective 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 intention to give it retrospective operation. On the contrary, the language clearly points the other way."

Why. The rights in Part III "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 clause (1) provides is that existing laws which clash with the exercise of the fundamental rights "shall to that extent be void"; as the rights became operative only on the date of the Constitution, the inconsistency can arise only from that date. "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 inconsistent 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."

Not like repeal or expiry. The appellant relied on Articles which expressly save things done under expiring laws, arguing that the absence of a saving clause in Article 13 showed that pending proceedings must fall. The Court answered that "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." 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."

The prosecution, for an act done in December 1949, could proceed.

Article 13(1) is prospective. A pre-Constitution law inconsistent with a fundamental right becomes void from 26 January 1950 and only to the extent of the inconsistency; it is not obliterated, and rights and liabilities accrued, and proceedings for acts done, before that date are unaffected.

Bhikaji Narain Dhakras (1955) built the doctrine of eclipse on this holding: the inconsistent pre-Constitution law is dormant, not dead, and revives when the fundamental right is amended. The compilations add the qualification in Lachmandas v State of Maharashtra that a discriminatory procedure becomes void after the commencement and cannot be used even to enforce pre-Constitution rights and liabilities.