TaxTMI 
TaxTMI 
1951 (1) TMI 32
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....the petitioner states that 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 cas....
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.... 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 inconsistent laws b....
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....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. There is no reason....
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....re 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 temporary statute or the repeal o....
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....t 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 petition to the High Court having been di....
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....s 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 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 al....
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.... 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 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 count....
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....; "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 necessary (see articles 252, 254, 357, 372 and 395). They have also used such words as "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 provisi....
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....iew would be to hold that all the convictions already 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 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 judgmen....
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....ner 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 ineffectual 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 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 ....
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.... laws that became inconsistent with its provisions. For this proposition he placed reliance on the rule of construction stated in Maxwell on "Interpretation of Statutes ", p. 404, which is to the following effect :-- "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. 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, pros....
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....eclared 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 inconsistent 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 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 ....
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....ion of statutes. According 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 temporary 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 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 ....
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....ndamental 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 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 provision 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 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 st....
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....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 contention 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 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 gi....
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....ule of construction that has been adopted in this country, the rule being that past transactions, whether closed or inchoate 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 completed during the period that these statutes had the force of law are not in any way affected. That rule seem....
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....ting 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 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 Constitution 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 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 emplo....