Discussion Of Reterospective Punishments Under Article 13(1) Of The Constitution Of India With The Aid Of The Judgement Of Keshavan Madhava Menon V. The State Of Bombay, 1951.
The Hon’ble Supreme Court, for the first time, in the year 1951, interpreted Article 13(1) of the Constitution of India[i] in the landmark judgement of Keshavan Madhava Menon v. The State Of Bombay[ii]. The judgement from the learned bench was divided into two groups of opinions. The majority judgement, supported the argument that fundamental rights cannot be enforced to cases that occurred in pre-constitutional events, as the individuals did not possess those rights to be able to enforce them. This was backed up by Section 6 of the General Clauses Act, of 1897[iii].
More importantly, the bench also used the words “shall be void” and “shall be repealed” interchangeably.
In light of the dissenting judgement Justice Fazl Ali along with another, pointed out the glaring difference between the terms “void” and “repealed” and how the interpretation of each differently would change the face of the law. It is argued that though the rights under the Art. 13(1) have no retrospective operation, and transactions of the past which are closed and rights which have already vested will remain untouched, the pre-constitutional matters that were still sub-judice during the time of the enforcement of the Constitution cannot be judged under the provisions of the act that are now void under the Art. 13(1).
This paper aims to highlight the flaw in the judgement of the Hon’ble court in using the term “shall be repealed” synonymously with “shall be void”. This interpretation by the courts is ulta vires and should be prospectively overruled.
The scope of the discussions hereunder will be restricted to only a singular point of discussion. This article will enunciate upon the usage and importance of the terms “void” and “repeal” with respect to the Article 13 of the Indian Constitution, and how the impugned precedent set by the Keshavan Madhava Menon case sets a faulty precedent which defeats both the original intent of the lawmakers, as well as the end means of fair trial and justice.
The learned framers of the Indian Constitution drafted the laws of our country with great erudition. Each word held a distinct interpretation and meaning to it, and several volumes of Constituent Assembly Debates[iv] took place to give us what we know today as the Constitution of India.
This Constitution in its part III grants certain fundamental rights to every person. One such fundamental right is as posed under the Article 13[v] of the Constitution which deals with the treatment of laws (both pre and post constitutional) which are in abrogation with the fundamental rights, as well as what was is the definition of law in its first place. This article protects the people of India against ex-post-facto laws, or laws that retroactively criminalize or penalize an action that was not illegal at the time it was committed.
One of the very first and a landmark judgement regarding this which till date holds up to be the law of the land unchallenged, is the judgement of Keshavan Madhava Menon v. The State of Bombay.
This case revolved around the applicability of retrospective punishments in India and formed the basis of the evolution of the popular “Doctrine of Eclipse”.
One minor issue, which later went on to become a major point of contention and changed the course of the judgement passed and the precedent established, is the usage of the terms “void” and “repealed” interchangeably in the Article 13(1) of the Constitution.
We will further explore this position of law ahead in this paper.
4.0 THE USAGE AND IMPORTANCE OF THE TERMS “VOID” AND “REPEAL”
The point of discussion here arose first when in 1951, right after the Indian Constitution was enacted, the Indian Jurisprudence witnessed a first of its’ kind case; the case of Keshavan Madhava Menon v. The State of Bombay[vi].
As can be read in the Article 13 excerpt quoted hereunder, any laws that were in effect within the territory of India prior to the commencement of this Constitution and are found to be contradictory to the provisions outlined in the Part III were to be declared “VOID” to the extent of such inconsistency.
However, could the term “void” here be interpreted to deliver the same meaning as “to be repealed” in the said provision?
It is important to understand the distinction between the meanings of the terms “void” and “repeal”, as used in Article 13(1), as its diction brings a critical change to the influence and interpretation of a statute.
The said article reads as follows;
- Laws inconsistent with or in derogation of the fundamental rights
(1) 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.
The terms void and repealed, although used interchangeably in the current jurisprudence of our country owing to the majority judgement as passed and precedent set by in the the case of Keshavan Madhava Menon v. The State of Bombay, pose two very different meanings. The interpretation of each will be further explained ahead.
A careful reading of the dissenting judgement of the aforementioned case helps us understand the flaws and loopholes in the current incorrect interpretations of the phraseology of the Article 13(1) of The Constitution of India.
The case involves the prosecution of the appellant, the Secretary of People’s Publishing House, Ltd., for allegedly publishing a pamphlet titled “Railway Mazdooron ke Khilaf Nai Zazish” in Bombay without the required authorization under the Indian Press (Emergency Powers) Act, 1931. 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[vii], and Sections 15[viii] and 18[ix] thereof were ultra vires and void in view of Article 19(1)(a)[x] read with Article 13 and that the hearing of the case should be stayed till the High Court decided that question of law.
The main point of contention while delivering the said judgement was the interpretation of the word “void” as used in the Article 13(1) of the Constitution. Could the word void here be used synonymously to mean “repealed” in this sense?
To understand the dissenting judgement’s contention against application of the Section 6 of the general clauses act, it is important to first understand the difference between the terms “void” and “repealed”.
The Section 6 of the general clauses act in its sub-clause (d) and (e) states that[xi];
A repeal will not;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
Even though it is extremely noteworthy that these two laws use two different terms expressly; “void” and “repealed”, in paragraph 3 of the majority (impugned) judgement, the learned bench stated that;
“…The High Court took the view that the word “void” was used in Article 13 (1) in the sense of “repealed” and that consequently it attracted Section 6 of the General Clauses Act, which Act by Article 367 was made applicable for the interpretation of the Constitution. The High Court, therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commencement of the Constitution were not affected, even if the Act were inconsistent with the fundamental rights conferred by Article 19 (1)(a)and as such became void under Article 13 (1) of the Constitution after January 26, 1950…”[xii]
It is quintessential to determine the difference between the terms “void” and “repeal”. Commonly used interchangeably at times, these two terms are carefully used by the lawmakers with distinct objectives to facilitate their respective purposes.
The Black’s Law Dictionary (3rd Edn.)[xiii] defines the term void as
“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 ineffectual so that nothing can cure it; not valid.”
Contrary to it, repeal is defined by Black’s Law Dictionary
“to mean a legislative act which abrogates or obliterates an existing statute”.
Moreso, the Merriam-Webster Dictionary[xiv] defines void as “as in null” and repeal to mean “to put an end to something”.
In order to understand better how the different usage of these two terms affects the interpretation of the law in question, it is important to have a careful look at the dissenting judgement as passed by Learned Justice Fazl Ali and another in the aforementioned case;
“…it appears that in the original draft of the Constitution, the words “shall stand abrogated” were used instead of “shall be void,” in Article 13(1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the Article emerged in the form in which it stands at present, and the words “shall stand abrogated” were replaced by the words “shall be void.” If the words “stand abrogated” had been there, it would have been possible to argue, that those words would have the same effect as repeal and would attract Section 6 of the General Clauses Act, but those words have been abandoned and a very strong expression indeed the strongest expression which could be used, has been used in their place…”
The Constitution framers have wisely used the words “repeal”, “invalid”, “ceases to exist”, “void”, etc. at different instances to denote separate and distinct meaning to the clause. Justice Fazl Ali had relied upon the thoroughness and wisdom of the framers to propound that “void” should not be interchangeably used with “repeal”. Learned Justice (retd.) Fazl Ali, in his dissenting opinion, very beautifully highlighted difference between both the terms.
He also noted that “Shall be abrogated” (which was used in the initial draft of the Constitution) will have the same effect as that of “repeal”[xv] which would have attracted Section 6 of general clauses Act,1897. But since the phrase used by the lawmakers is “shall be void”, it will not attract the said Section.
The interpretation of the word void has been uniformly understood to cease existence from inception throughout and across jurisprudences.
This distinct denotation of the term could be understood by referring to the landmark English judgement in Phillips v. Brooks.[xvi]
In the aforementioned case, a man fraudulently entered into an agreement by misrepresenting his identity with the plaintiff and signing a false cheque, for purchasing a ring. He, furtheron pledged the ring to a bona fide third party, the defendant. The plaintiff, on realising the fraud committed on him, sued the defendant to restore the ring.
The court, however, adjudged that;
“The fact that the seller was induced to sell by fraud of the buyer made the sale voidable, but not void…was between the parties to the contract, and had no relation to rights acquired by third parties innocently under the contract, and misrepresentation would have been an answer to the enforcement of the contract. In this case, I think, there was a passing of the property and the purchaser had a good title, and there must be judgment for the defendants with costs.”
The court, while delivering the judgement, emphasised on the clear and distinct meaning of the word void.
The court discussed and differentiated the possible outcome of the case had the act would have been a void act. It stated that void agreement is invalid even before it was set aside by the competent court, therefore the bona fide agreement entered with the third party would by ineffectual, and the defendant will have to restore the ring to the plaintiff.
The above case clarifies the meaning of the term “void”, which effectively means the absence of legal force or binding effect from the very inception, by striking at the root.
However contrary to principles proposed by Hon’ble Justice Fazl Ali, the majority bench of the Supreme Court while ordering the judgement, heavily relied upon the aforementioned synonymous interpretation of void and repealed. The learned judges were of the belief that the Article 13(1) has the effect of “repeal” on pre-constitutional laws which were inconsistent with the fundamental rights [in the present case Article 19(1)(a)] and hence they referred to Section 6 of the General Clauses Act to ascertain that the proceeding should not be affected by the enforcement of the Indian Constitution.
The court was of the opinion that no new proceedings can be initiated under the Section 18(1)of Indian Press (Emergency Powers) Act (XXIII of 1931) since it was found to be in contravention of fundamental right of freedom of speech and expression which encompasses freedom of press.
From the opinions of the majority judgement, one view that can be clearly derived is that Article 13(1) does not have a retrospective effect and thus cannot declare void the act in its entirety. It only renders the part of the act inconsistent with part III of the Indian Constitution as “void” and is prospectively applied; hence, in this case, the rights under Article 19 cannot be exercised.
However, since void cannot be interchanged with repeal, thus the application of Section 6 of general clauses act is unjustified.
It is a well settled principle of law that a word in a particular context within a law will retain its meaning and interpretation uniformly unless stated otherwise. To understand this better, we can take Article 12[xvii] of the Constitution of India par exemple.
Article 12 of part III of the Indian Constitution provides the definition of the term “state”. It reads,
“In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India”
The aforementioned exert of the Article starts by narrowing the scope of the definition of “state” and limiting its application to Part III of the Constitution. The limited scope of the definition implies that the definition of the state, as defined in the General Clauses Act, shall be applicable throughout the Constitution with the exception of Part III, since it has been explicitly mentioned in its Article 12.
This proposition refers to the uniform applicability of laws, i.e. unless otherwise stated, as done within Article 12, a law shall be applicable in the same sense for all the purposes. The intention of the Constitution makers is evident that there must be uniform application of laws throughout the territory of India.
The above proposition of law, however, is violated if the interpretation of 13(1) by the Apex Court is considered to be justified.
The Supreme Court has, well within its power, interpreted the term “shall be void” to be interchangeable used as “shall be repealed”, attracting Section 6 of the General Clauses Act. Au Contraire, if such interpretation is followed uniformly throughout the Article; it will unarguably violate the aforementioned principle of law.
The Article 13(2) of the Indian Constitution[xviii] states that,
“The State shall 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”
Following the principle of uniform application, interpretation of the said term in Article 13(1) shall be extended to Article 13(2) in the absence of a provision stating otherwise.
This would imply that “shall be void” used in the latter Article is synonymous to “shall be repealed”, giving rise to an adverse situation that will disrupt the process of law.
The situation at hand involves a scenario where the Parliament enacts an amendment that contradicts certain rights guaranteed to citizens under Part III of the Constitution. While such an amendment remains valid until it is struck down by the Apex Court due to its infringement upon fundamental rights, it poses a challenge when a citizen is subjected to a trial under the new amendment before it is challenged in court. In such cases, the citizen lacks a remedy concerning the newly enacted amendment since the interpretation of Article 13(2) considers “repealed” and “void” as interchangeable, thus invoking Section 6.
Consequently, the trial of a citizen prosecuted under an unconstitutional act would be deemed valid, as Section 6 of the General Clauses Act explicitly states that unless a different intention appears, a repeal shall not;
“…(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.”
Moreover, it allows for the initiation, continuation, or enforcement of any investigation, legal proceeding, or remedy, as well as the imposition of any penalty, forfeiture, or punishment, as if the repealing Act had not been passed.
The majority ruling of the Keshavan Madhava case, which is a bad precedent, will apply to the present case in such scenario and the aggrieved person will be prosecuted under an unlawful act.
This defeats both the original intent of the lawmakers, as well as the end means of fair trial and justice.
It is dispiriting that inspite of these established facts, even today the 72 year old faulty precedent as established in the majority judgement of Keshavan Madhava Menon case continues to serve as the law of the land.
The debate engendered over the usage and interpretation of the term “void” as under the Article 13(1) of the Indian Constitution in the case of Keshavan Madhava Menon v. The State of Bombay posed a question before the Hon’ble courts which could change the course of justice under the Indian jurisprudence with respect to relief to sub-judice cases under retrospective laws.
Justice Fazl Ali’s dissenting judgment in the Keshavan Madhava Menon case astutely underscored the drafters’ intentions by challenging the invocation of Section 6 of the General Clauses Act. Notably, the original iteration of the Constitution employed the phrase “shall stand abrogated” instead of “shall be void” in Article 13(1). The substitution of these phrases connotes a conscious and substantive alteration in the provision’s phraseology. Retention of “stand abrogated” might have engendered the contention that it mirrored the effect of repeal and thereby triggered Section 6 of the General Clauses Act. However, the framers deliberately chose “shall be void,” denoting a more potent and all-encompassing intent.
Regrettably, the majority opinion in the Keshavan Madhava Menon case heavily leaned on the interchangeable interpretation of “void” and “repealed.” This construal led the court to invoke Section 6 of the General Clauses Act, a course of action unwarranted given the evident distinction between the two terms. By assimilating “void” with “repealed,” the court compromised the precise and deliberative language chosen by the Constitution’s architects.
This bad precedent till date prevails over the Indian legal system, as several recent judgements including the landmark judgment of Shayara Bano v. The Union of India still depend upon the usage and interpretation as (incorrectly) directed under the impugned majority judgement.
In summation, the differing interpretations of Article 13(1) and its use of the term “void” have yielded a contentious discourse, as the dissenting opinion contends that “void” should not be equated with “repealed.” The implications of this debate extend to the retrospective effect of Article 13(1), the uniform application of laws, and the potential violation of citizens’ rights under Article 13(2) if the principle of uniform interpretation pushes the synonymous interpretation of the two words in said Article too. The court’s inclination to treat “void” and “repealed” as synonymous has strained the deliberate language chosen by the Constitution’s drafters, thereby necessitating a closer examination of the underlying principles and objectives of the provision.
[i] Article 13 in The Constitution of India, 1950.
[ii] 1951 AIR 128.
[iii] Section 6 of the General Clauses Act, of 1897.
[iv] Constituent Assembly Debates, 1948.
[v] Article 13 in The Constitution of India, 1950.
[vi] 1951 AIR 128.
[vii] Section 2(6) of the Indian Press (Emergency Powers) Act, 1931.
[viii] Section 15 of the Indian Press (Emergency Powers) Act, 1931.
[ix] Section 18 of the Indian Press (Emergency Powers) Act, 1931.
[x] Article 19 in The Constitution of India, 1950.
[xi] Section 6 of the General Clauses Act, of 1897.
[xiii] Void, Black’s Law Dictionary (3rd Edn.).
[xiv] Void, Merriam-Webster Dictionary (5th Edn.).
[xv] Abrogate, Black’s Law Dictionary (3rd Edn.).
[xvi] PHILLIPS v. BROOKS, LIMITED.,  2 K.B. 243
[xvii] Article 12 in The Constitution of India, 1950.
[xviii] Article 13(2) in The Constitution of India, 1950.