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TMI Blog1951 (1) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... the pamphlet was published as a "book" within the meaning of section 1 of the Press and Registration of Books Act (XXV of 1867) and that the provisions of that Act had been duly complied 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 authority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 retrograde 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 inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 already 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 Constitution. Article 13 (1) with which we are concerned for the purposes 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 prospective unless it is expressly or by necessary implications made to have retrospective operation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3), 250, 357, 358 and 369 where express provision has been made for saving things done under the laws which expired. It will be noticed 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 proceedings. 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 temp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealing 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 judgment 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 limitation or by a repeal, at any time before judgment, no judgment can be given. Hence, it is usual in every repealing law to make it operate prospectively only, and to insert 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." The author then proceeds to quote the following passage from Wall v. Chesapeake & Ohio Ry., Company :-- "It is well settled that if a statute giving a special r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nacted 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 Interpretation 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 Attorney General 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "invalid" (see 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 opinion, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncluded 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 conviction 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 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 absolute 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory, 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 People'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Interpretation 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, pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion intended 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 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 guaranteed 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 proceedings 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 therefore it must be presumed that the Constituent Assembly did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other rule of construction under which a person who commits an offence against an Act during its existence as a law becomes unpunishable on its termination. Both on considerations of convenience 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 continuance 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 Parliament 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 no effect whatsoever after a certain date only. The expression "void" has no larger effect on the statute so declared than the word "repeal". The expression "repeal" ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saved from the retrospective effect of the statute; but where the provision is clearly not intended to be retrospective, 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 intended 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 certain 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 retrospec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a court cannot frame a charge or convict a person under a law that is repugnant to the Constitution equally it would not be entitled 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 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&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 completed 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 applicable 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 Reference was also made to the rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 attracted to that situation and the pending prosecution of the appellant would have to be continued in view of those provisions. 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 Constitution, 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 unnecessary 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&q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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