TaxTMI 
TaxTMI 
2023 (9) TMI 1691
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....a Constitution Bench of this Court, in the case of Subramanian Swamy vs. Director, Central Bureau of Investigation and another [(2014) 8 SCC 682], that Section 6A of the Delhi Special Police Establishment Act, 194 [In short 'DSPE Act'] being unconstitutional, can be applied retrospectively in context with Article 20 of the Constitution. 2. Necessary facts relevant for the purposes of this case are stated hereunder: 2.1 The appellant-Central Bureau of Investigation [In short, "CBI"] after registering the First Information Report at 02:00 pm on 16.12.2004 for offences under the Prevention of Corruption Act, 1988 [In short "PC Act, 1988"] laid a trap in the evening on the same day wherein the respondent is said to have accepted bribe to set the things right for the radiologist conducting Pre-Natal test to determine the sex of the foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent applied for discharge, inter alia, amongst others on the ground that the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of th....
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....tter shall be reinvestigated as per prescribed procedure and the material gathered in such re-investigation shall be placed before the Special Judge for further proceedings in accordance with law. If the approval is not given by the Central Government, then the same shall be notified to the Special Judge who shall then close the case." 2.3. The CBI, feeling aggrieved by the judgment of the Delhi High Court, has preferred the present appeal substantially on the ground that Section 6A(2) of DSPE Act would be applicable and not Section 6A(1) thereof. The High Court erred in holding that Section 6A(1) was applicable. 2.4. The said appeal is pending since 2007. During the pendency of the appeal Section 6A(1) of the DSPE Act was held to be invalid and violative of Article 14 of the Constitution by a Constitution Bench vide judgment dated 06.05.2014 in the case of Subramanian Swamy (supra). Paragraph 99 of the said report which makes the above declaration is reproduced hereunder: "99. In view of our foregoing discussion, we hold that Section 6A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been....
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.... for constituting an appropriate Bench. Paragraph 7 of the order dated 10.03.2016 framed the question for determination and the same is reproduced hereunder: "7. The provisions of Section 6A(1), extracted above, do indicate that for officers of the level of Joint Secretary and above a kind of immunity has been provided for. Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India, is the moot question that arises for determination in the present case." 6. As the order of reference also briefly deals with the necessary facts and also the reasons for referring the issue to the Constitution Bench, it would be appropriate to reproduce the complete order dated 10.03.2016. It reads as follows: "1. A prosecution under the Prevention of Corruption Act, 1988 was sought to be questioned by the respondent accused on the basis of the provisions contained in Section 6A(1) of the Delhi Special Police Establishment Act, 1946 which was brought in by an amendment in the year 2003. Section 6A(1) of the Delhi Special Police Establishment Act, 1946 is in the following term....
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....o prohibition against conviction for any offence except for violation of law in force at the time of commission of the act charged as an offence and subjection to a penalty greater than that which might have been inflicted under the law in force at the time of commission of offence or it also prohibits legislation which aggravates the degree of crime or makes it possible for him to receive the same punishment under the new law as could have been imposed under the prior law or deprives the accused of any substantial right or immunity possessed at the time of the commission of the offence charged is a moot point to be debated. (underlining is ours) *** 21. However, as the interpretation of Article 20 as to its scope and ambit is involved in these proceedings, we refer the question formulated in para 15 of this order to a larger Bench for consideration." However, the Constitution Bench in Transmission Corporation of A.P. versus Ch. Prabhakar and others [(2010) 15 SCC 200] declined to answer the question as in the meantime there were certain amendments to the statute in question and, therefore, the issues referred were understood to have become academic. The ver....
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..... 377 of 2007 made detailed submissions which are briefly summarized hereunder: 10.1. Section 6A of the DSPE Act is a mere procedural provision and not a penal provision as such would not attract Article 20(1) of the Constitution. Article 20 of the Constitution applies only to those provisions of law in force, violation of which results in conviction and resultantly awarding sentence. Procedural issues like statutory protection during trial, a provision providing for a particular Court to try the offence would not have any bearing while invoking Article 20 of the Constitution. 10.2. Article 20 of the Constitution would have no applicability in determining whether the declaration made in the case of Subramanian Swamy (supra) would be prospective or retrospective. The protection provided under Article 20 of the Constitution against ex post facto law extends and confines only to conviction and sentence and would have no relevance for procedural aspects and also would not have any applicability to the powers exercised during the course of the investigation. He enlisted the following aspects in this respect: (a) Article 20 is limited in application wherein distinct o....
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....ct, 2003 w.e.f. 11.09.2003. 10.7. Section 6A of the DSPE Act, undeniably does not create a new offence nor does it obliterate the offence. The Constitution Bench in Subramanian Swamy's case (supra) noted that the classification made in Section 6A neither eliminates public mischief nor achieves some positive public good and, therefore, the classification was held to be discriminatory and violative of Article 14 of the Constitution as it side-tracks the fundamental objects of the PC Act, 1988 to deal with corruption. 10.8. Shri Mehta commenting upon Section 6A of the DSPE Act enlisted the following short conclusions: (a) It is not a provision creating an offence or providing immunity from an offence under which anyone can be punished; (b) The said provision did not exempt applicability of anti-corruption laws to officers above the rank of Joint Secretary; (c) It was a mere executive safety mechanism; It was a mere initial protective net of a particular kind which this Hon'ble Court declared as unconstitutional; (d) The said provision did not seek to create individual rights or immunities rather was, as was the submission of the Union ....
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....f declaring that the same would be prospective in application, then the same should have been specifically and discretely stated therein. In absence of such declaration, the natural assumption is that the same is retrospective applying the Blackstonian theory of precedence. 10.12. Reference was made by Shri Mehta to the cases of I.C. Golaknath & Ors. Vs. State of Punjab and Anr. [(1967) 2 SCR 762] and Managing Director, ECIL, Hyderabad and Others Vs. B. Karunakar and Others [(1993) 4 SCC 727] for the proposition that prospective overruling is to be exercised as an exception in rare circumstances and such power should be seldom exercised. He has further placed reliance upon a judgment of this Court in the case of M.A. Murthy Vs. State of Karnataka and others [(2003) 7 SCC 517] for the proposition that if prospective overruling is not specifically provided in the decision, it would not be open for Courts in future to declare such a decision to be prospective in nature. If prospective applicability of a decision is not provided in the said decision, then it is presumed that it will have retrospective effect and declaration of any law as invalid would be unenforceable and nonexisten....
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.... a forerunner to the trial. Reliance was placed upon the case of Hardeep Singh Vs. State of Punjab [(2014) 3 SCC 92], in particular, reference has been made to paragraphs 27, 29 and 39 of the report. 11.3. Further referring to the definition of the word "investigation" in Section 2(h) of Cr.P.C., it was submitted that the prohibition contained in Section 6A of the DSPE Act relates to the prohibition from collecting evidence in an enquiry or during the investigation. 11.4. Referring to the case of Subramanian Swamy (supra) it is submitted that there could be two situations prior to the judgment in the aforesaid case i.e. prior to May, 2014; (i) where evidence is already gathered as part of investigation or (ii) where evidence is not gathered because of the prohibition contained in Section 6A of the DSPE Act. Placing reliance upon a judgment of this Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi [(1955) 1 SCR 1150], wherein, while answering the first question, this Court held that the prohibition contained in Section 5(4) of the Prevention of Corruption Act, 1947 [In short, "PC Act, 1947"] was mandatory in nature whereas while answering the second question, this C....
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....r amounts to conviction nor to sentence. Reliance was placed upon a judgment of this Court in the case of Rao Shiv Bahadur Singh (supra). C: Dr. R.R. Kishore - respondent in person in Crl.A.No.377 of 2007: 12. The respondent, Dr. R.R. Kishore has throughout represented himself in person and has argued the matter at length before us. His submissions are summarized hereunder: 12.1. At the outset, it was submitted that CBI is contesting this case against the stand of the Union of India. Initially Union of India was not a party to the proceedings, however, pursuant to an order dated 27.04.2012 passed in this appeal, the Union of India was made a party by the Court suo moto. The affidavit filed by Union of India, served upon the respondent on 25.02.2013 and which is part of the record, categorically stated that CBI does not have jurisdiction to initiate investigation against the respondent without prior approval of the Central Government. It further stated that the view taken by the learned Single Judge of the Delhi High Court in the impugned order dated 05.10.2006 is correct and effectively captures the purpose of enactment of a provision. It further took stand in paragraph 23....
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.... Act and the proceedings against them have come to a closure in cases where the competent authority declined to grant sanction and also to another set of cases where the Courts have quashed the proceedings in the absence of sanction under Section 6A of the DSPE Act. 12.6. The next argument relates to Section 6 of the General Causes Act, 1897 [In short 'the Act, 1897'] dealing with effect of Repeal in view of its applicability under Article 367 of the Constitution. 12.7. It is also submitted that where a law has been in force for a long time and is subsequently repealed, the same would not affect the rights which had accrued during the existence of such law. 12.8. It is also his submission that if, while declaring the statute to be invalid, the Court does not expressly incorporate for its retrospective application, it shall be deemed to apply prospectively. Reliance was placed upon the following judgments: (1) Keshavan Madhava Menon (supra); (2) Ashok Kumar Gupta and Another Vs. State of U.P. and Others [(1997) 5 SCC 201]; (3) Kaiser Aluminium and Chemical Corporation Vs. Bonjorno [494 US 827 (1990)]; (4) Assistant Excise Commissioner, Ko....
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....s entitled to protection under Article 20(1) of the Constitution. According to him, the marginal note refers to protection in respect of conviction and the phrase 'in respect of' must be interpreted to grant protection to all the existing procedural safeguards at the time when the offence was alleged to be committed. Reliance was placed upon a judgment of this Court in the case of Prabhu Dayal Deorah Vs. District Magistrate [(1994) 1 SCC 103]. 13.3. Section 6A(1) of the DSPE Act creates an immunity and grants a protection. It cannot be taken away retrospectively, either by retrospective amendment or by a judgment declaring such immunity invalid. 13.4. Section 6A was declared ultra vires Article 14 of the Constitution and, as such, under Article 13(2) of the Constitution it is void to the extent of the contravention. The argument further proceeds to elaborate the meaning and scope of the word "void" which came up for consideration in a number of cases right from 1951 to 1963. Dr. Datar has very fairly submitted that this Court has held that a provision which is held to be 'void' would be a "nullity", "still born" or "dead" as if it was never in existence at all. 13.....
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....ground of lack of legislative competence or for violating Part-III of the Constitution or other constitutional limitations would have the same effect. No distinction can be drawn in either of the cases. 13.9. It was next submitted that protection from prosecution has continued from 1969 as it was deemed necessary to ensure proper administrative function by Government officials except for brief periods when this Court had struck down the validity of the relevant clause of the Single Directive in the case of Vineet Narain (supra) and, thereafter, Section 6A of the DSPE Act in the case of Subramanian Swamy (supra). Continuously, the legislature has been incorporating provisions in different statutes to continue to extend such protection to Government officials from unnecessary and frivolous criminal prosecutions. 13.10. It was lastly submitted that the doctrines of prospective overruling and the Blackstonian theory do not apply in the present case as no previous decision has been overruled. This is a case of declaring a law as unconstitutional being violative of Part-III of the Constitution. 13.11. In the facts and circumstances, it was submitted that the appeal of Manjit Sin....
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....ity to initiate investigation against officers of the Government and public sector undertakings & Nationalized Banks above a certain level. The same reads as follows: "4.7(3)(i) In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent of above in the Central government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary of above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE. (ii) All cases referred to the Administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed ....
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....nto any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to- (a) the employees of the Central Government of the Level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. (2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).]" 17. This Section remained on the statute book for a period of more than ten years till the judgment in the case of Subramanian Swamy (supra) was delivered on 06.05.2014, which held it to be unconstitutional as being violative of Article 14 of Part-III of the Constitution. 18. The Parliament again insert....
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....supra) was testing constitutional validity of Section 6A of DSPE Act. Section 6A has two sub-Sections (1) and (2). Sub-Section (1) provides of a protection from any enquiry or investigation into any offence under the PC Act, 1988 without the previous approval of the Central Government where the allegation relates to employees of the Central Government of the level of Joint Secretary and above (Clause a) and also such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Government. Sub-Section (2) begins with a non-obstante clause stating that no such approval would be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the PC Act, 1988. Sub-Section (2) takes away the protection to the Government servant of the category defined in sub-Section (1) where arrest of a person is to be made on the spot on the charge of accepting or attempting to accept any gratification. 21. The Consti....
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....n offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself." 26. In the present case we are only concerned with sub-article (1) to Article 20 of the Constitution. Hence, we need not examine sub-article (2) and (3). 27. Sub-article (1) of Article 20 of the Constitution consists of two parts. The first part prohibits any law that prescribes judicial punishment for violation of law with retrospective effect. Sub article (1) to Article 20 of the Constitution does not apply to civil liability, as distinguished from punishment for a criminal offence. Further, what is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited. Trial under a procedure different from the one when at the time of commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation o....
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....isting law'. Artifice or fiction will fall foul, when they are with the intent to defeat the salutary object and purpose behind sub-article (1) of Article 20 of the Constitution[2] 30. The aforesaid rationale and principles of interpretation equally apply to the second part of sub-article (1) to Article 20, which states that a person can only be subjected to penalties prescribed under the law at the time when the offence for which he is charged was committed. Any additional or higher penalty prescribed by any law after the offence was committed cannot be imposed or inflicted on him. The sub-article does not prohibit substitution of the penalty or sentence which is not higher or greater than the previous one or modification of rigours of criminal law [See T. Barai Vs. Henry Ah Hoe, (1983) 1 SCC 177 and Pratap Singh Vs. State of Jharkhand, (2005) 3 SCC 551. The latter judgment refers to several judgments.] 31. In view of the limited scope of the present controversy, we need not examine in greater detail sub-article (1) of Article 20. The reason why we have referred to the constitutional guarantee, which protects the citizens and persons from retrospective ex post facto laws, is....
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....cumstances. The first being that the Court which recorded the conviction had been conferred jurisdiction much after the offence had taken place and at the time of the offence the forum was different. The other issue raised with regard to Article 20(1) of the Constitution was that although the offence had been committed in the month of March and April 1949 but by way of an ordinance which came into force in September 1949, the laws were adopted which covered the offences for which the appellants were charged and as such Article 20(1) would protect them and they could not be tried for such offence which had been introduced later on. (ii) The Constitution Bench rejected the plea on both the counts. Although in the present case, the concern is only with the first aspect relating to the issue regarding competent court to try the offence which is a part of the procedure and had nothing to do with conviction or sentence being introduced subsequent to the offence. The Constitution Bench held as follows with regard to the above issue: "9. In this context it is necessary to notice that what is prohibited under Article 20 is only conviction or sentence under an ex post facto....
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....ined in Article 20(1) of the Constitution against conviction and subjections to penalty under ex post facto laws is not confined in its operation to post Constitution laws but applied also to ex post facto laws passed before the Constitution in their application to pending proceedings". This Court further held that Article 20 prohibits only conviction or sentence under an ex post facto law, and not the trial thereof. Such trial under a procedure different from what obtained at the time of the offence or by a court different from that which had competence at that time cannot ipso facto be held to be unconstitutional. Therefore, this case shows that it is only conviction and punishment as defined in Section 53 of the Indian Penal Code which are included within Article 20(1) and a conviction under an ex post facto law or a punishment under an ex post facto law would be hit by Article 20(1); but the provisions of Section 13(3) with which we are concerned in the present appeal have nothing to do with conviction or punishment and therefore Article 20(1) in our opinion can have no application to the orders passed under Section 13(3). (emphasis supplied)" (vii) In the case of R....
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....hat this Court said was that the appellant cannot object to a procedure different from what existed at the time of the commission of the offence by applying Article 20(1) of the Constitution. It may be noticed that this was a judgment relating to law being amended by the Parliament and not law being declared unconstitutional by a Court. The relevant extract from the said judgment reads as follows: "There can be no objection in law to the revival of the procedure which was in force at the time when the offence was committed. The effect of the amendment is that sub-section (3) of Section 5 as it stood before the commencement of the 1964 Act shall apply and shall be deemed to have always applied in relation to trial of offences. It may be if by this deeming provision a new offence was created, then the prohibition under Article 20(1) may come into operation. But in this case, as already pointed out, what is done is no more than reiterating the effect of Section 6(1) of the General Clauses Act. Mr. Garg, the learned Counsel, submitted that by amending procedure drastically and giving it retrospective effect, a new offence may be created retrospectively. It was contended that b....
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....to canvass that the marginal note along with Article 20 of the Constitution refers to protection in respect of conviction and, therefore, anything which may relate to or may be a pre-requisite for conviction should stand covered by Article 20(1) of the Constitution. The enquiry, investigation and trial being prerequisite are an essential part on the basis of which, the Court may ultimately arrive at a conviction for an offence. It was thus submitted that if the enquiry, investigation and trial stand vitiated for any reason, the conviction itself cannot be sustained. 35. The submission of Mr. Datar, learned counsel is too far-fetched and gives a very wide and open-ended expanse to Article 20(1) of the Constitution stretching it even to procedural aspects merely on account of the marginal note. As already stated, even at the cost of repetition, it may be noted that Article 20(1) of the Constitution only and only confines to conviction and sentence. It does not at all refer to any procedural part which may result into conviction or acquittal and/or sentence. Accordingly, the argument of Mr. Datar cannot be accepted. Change in procedure post the offence not attracting Article 20(1) ....
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....hall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." 41. Under Article 13(1) all existing laws prior to the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part-III, would be void to the extent of inconsistency. Further, according to Article 13(2), the State is prohibited from making any law which takes away or abridges the rights conferred by Part-III and further that any law made in contravention of this clause would be void to the extent of contravention. Article 13(2) prohibits making of any law so it would be relating to laws made post commencement of the Constitution, like the case at hand. In the present case, as it has been held that Section 6A of DSPE Act is violative of Article 14 of Part-III of the Constitution, as such, the same would be void. The word "void" has been interpreted in a number of judgments of this Court beginning 1951 till recently and it has been given different nomenclature such as 'non est', 'void ab initio' 'still born' and 'unenforceable'. 42. A br....
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....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 contravention of the provisions of any law which, after the Constitution, 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 Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it doe....
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....41. Now, in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the legislature, or because the matter itself being within its competence, its provisions offend some constitutional restrictions. In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to that legislature. Thus, a law of the State on an Entry in List 1, Schedule VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for example, an Entry in List II, but it might infringe restrictions imposed by the Constitution on the character of the law to be passed, as for example, limitations enacted in Part III of the Constitution. Here also, the law to the extent of the repugnancy will be void. Thus, a legislation on a topic not within the competence of the legislature and a legislation within its competence ....
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....stitution and such laws in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency be void. The clause, therefore, recognizes the validity of, the pre-Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part III; whereas cl. (2) of that article imposes a prohibition on the State making laws taking away or abridging the rights conferred by Part III and declares that laws made in contravention of this clause shall, to the extent of the contravention, be void. There is a clear distinction between the two clauses. Under cl. (1), a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law can be made contravening the provisions of Part III, and therefore the law, to that extent, though made, is a nullity from its inception. If this clear distinction is borne in mind, much of the cloud raised is dispelled. When cl. (2) of Art. 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to....
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....Doctrine of eclipse does not apply in the present case, for Section 6A of the DSPE Act has been struck down as unconstitutional. There is no attempt to re-legislate this provision by removing the illegality resulting in unconstitutionality. We may beneficially reproduce paragraph nos. 23 and 24 of the said report hereunder: "23. It is however urged on behalf of the respondents that this would give a different meaning to the word 'void" in Art. 13 (1). as compared to Art. 13 (2). We do not think so. The meaning of the word "void" in Art. 13 (1) was considered in Keshava Madhava Menon's case and again in Behram Khurshed Pesikaka's caseIn the later case, Mahajan, C. J., pointed out that the majority in Keshava Madhava Menon's case (3) clearly held that the word "void" in Art. 13(1) did not mean that the statute stood repealed and therefore obliterated from the statute book; nor did it mean that the said statute was void ab initio. This, in our opinion if we may say so with respect, follows clearly from the language of Art. 13(1), which presupposes that the existing laws are good except to the extent of the inconsistency with the fundamental rights. Besides the....
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.... is this distinction which results in the impossibility of applying the doctrine of eclipse to post-Constitution laws, for nothing can be revived which never had any valid existence. We are therefore of opinion that the meaning of the word "void" is the same both in Art 13 (1) and Art. 13 (2), and that the application of the doctrine of eclipse in one case and not in the other case does not depend upon giving a different meaning to the word "void' in the two parts of Art. 13; it arises from the inherent difference between Art. 13 (1) and Art. 13 (2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the laws being still born-there will be no scope for the application of the doctrine of eclipse. Though the, two clauses form part of the same Article, there is a vital difference in the language employed in them as also in their content and scope. By the first clause the Constitution recognises the existence of certain operating laws and they are declared void, to the extent of their incons....
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.... Nageswara Rao, speaking for the Bench, observed that where a statute is adjudged to be unconstitutional, it is as if it had never been and any law held to be unconstitutional for whatever reason, whether due to lack of legislative competence or in violation of fundamental rights, would be void ab initio. Paragraph Nos. 22 and 23 of the said judgment are reproduced hereunder: "22. Where a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. Field, J. in Norton v. Shelby County, observed that "an unconstitutional act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed". 23. An unconstitutional law, be it either due to lack of legislative competence or in violation of fundamental rights guaranteed under Part III of the Constitution of India, is void" ab initi....