Keshavan Madhava Menon vs The State Of Bombay

Author: Sankalp Vashistha, Law Student at ICFAI University

Edited By: Aman Tyagi, Student at UFYLC, Jaipur, Rajasthan

• ABSTRACT / HEADNOTE

The Indian Press (Emergency Powers) Act, 1931, was used to prosecute the petitioner who was Secretary of People’s Publishing Houses India Ltd., in 1949 for the distribution of a pamphlet. He was arrested in December 1949 before the Indian Constitution came into effect which secured fundamental rights, including freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, he contested that the Act’s provisions were in violation of the constitution. The petitioner attempted to set aside the criminal charges against him because the pre-constitutional legislation infringed upon fundamental rights. However, the Bombay High Court held—applying Section 6 of the General Clauses Act, 1897—that the word “void” in Article 13(1) meant “repealed,” indicating the repeal’s prospective impact. As a result, it was decided that the adoption of the Constitution had no bearing on existing proceedings. The Supreme Court ruled on appeal that Article 13 does not confer retrospective effect to fundamental rights. The Court stated that laws become void only when they clash with the Constitution after it has been adopted. The Indian Press (Emergency Powers) Act, of 1931, was considered to apply to the proceedings started before the Constitution. The Court also maintained that the fundamental rights guaranteed by the Constitution do not automatically declare pre-constitutional legislation unconstitutional in the past. As a result, the appeal was dismissed.

Keywords: Freedom of speech and Expression, Constitution, Article 13(1), Article 19 (1) (a), Pre-constitutional, Void

• CASE DETAILS

• INTRODUCTION AND BACKGROUND OF JUDGEMENT

The Indian Press (Emergency Powers) Act, 1931, was used to prosecute the petitioner who was Secretary of People’s Publishing Houses India Ltd., in 1949 for the distribution of a pamphlet. He was arrested in December 1949 before the Indian Constitution came into effect which secured fundamental rights, including freedom of speech and expression under Article 19 (1) (a) of the Indian Constitution, he contested that the Act’s provisions were in violation of the constitution. The petitioner attempted to set aside the criminal charges against him because the pre-constitutional legislation infringed upon fundamental rights. However, the Bombay High Court held—applying Section 6 of the General Clauses Act, 1897—that the word “void” in Article 13(1) meant “repealed,” indicating the repeal’s prospective impact. As a result, it was decided that the adoption of the Constitution had no bearing on existing proceedings.

• FACTS OF THE CASE
• The petitioner, who was Secretary at People’s Publishing Houses India Ltd., was prosecuted for dissemination of a pamphlet entitled “Railway mazdooron ke khilaaf nai Zazish” in Bombay on September 1949. On 9^th December 1949, he was arrested on the contravention of section 15(1) and 18 (1) of the Indian Press (Emergency Powers) Act, 1931.
• On 26^th January 1950, The Constitution of India came into force, which provided various fundamental rights to citizens under part III, including Article 19 (1) (a) right to freedom of speech and expression.
• On 3^rd March 1950 petitioner submitted a written statement stating that sections 2(6), 15, and 18 of the act are ultra vires and void as they violate Article 19 (1) (a). He asked for a suspension of the legal proceeding until H.C. adjudicated the matter of law.
• On 7^th March 1950, Petitioner filed a petition in the High Court of Bombay under Article 228 seeking that the criminal proceedings against him be void as the charging section on him violate Article 19 (1) (a) read with Article 13 (1).
• On 23^rd March 1950 High Court held that the word ‘Void’ used in Article 13 (1) meant ‘repealed’, thus applying section 6 of the General Clauses Act, 1897, which states that repeal has prospective effect unless stated otherwise. So, the court held that proceedings under the 1931 Act pending as the constitution’s commencement would not be affected.
• On 12^th April 1950 petitioner filed an appeal in the Supreme Court based on a certificate granted by the High Court under Article 132(1)

• LEGAL ISSUES RAISED
• Whether provisions of the Indian Press Emergency Powers Act, 1931 in violation of Article 19 (1) (a) read with Article 13 of the Indian Constitution?
• Whether pending proceedings have any impact on the enforcement of the Constitution?
• Whether there is any retrospective effect of Article 13?

• PETITIONER/ APPELLANT’S ARGUMENTS
• The counsels for Petitioner submitted that the Indian Press (Emergency Powers) Act, 1931, was a repressive law passed by an external government to restrict the freedom of the Indian press and stifle the freedom of its subjects.
• The counsels for Petitioner submitted that after India gained its freedom, its citizens were able to live freely. In a democratic republic, the Constitution guarantees fundamental rights to citizens. Article 13(1) of the Constitution declared all pre-constitutional laws incompatible with fundamental rights to be null and void, to eradicate all traces of servitude imposed by foreign rulers.
• The counsels for Petitioner submitted that persecuting citizens under an antiquated legislation that violates their fundamental rights is against the spirit of the Constitution.
• The counsels for Petitioner submitted that no law passed after the Constitution’s adoption and declared unconstitutional by Article 13 may be examined for any reason, including accusing or penalizing individuals.
• The counsels for Petitioner submitted that any pre-constitutional law that is declared unconstitutional by the Constitution has its effectiveness extended.
• The counsels for Petitioner submitted that the High Court made a mistake in applying Section 6 of the General Clauses Act, 1897, to interpret Article 13(1) because the Article does not intend to repeal the current law; rather, it gives the court the authority to declare a statute unconstitutional if it violates fundamental rights, which gives the court the authority to immediately repeal the entire statute.

• RESPONDENT’S ARGUMENTS
• The counsels for Respondent submitted that the laws that violate Article 13(1) shall be subject to Section 6 of the General Clauses Act, 1897, as the phrase “void” in that clause is to be interpreted as “repealed,” not as “void ab into.” this is because the basic rights are new rights granted to people as on 26.01.1950; as such, it is not reasonable to expect them to supersede any rights and obligations that existed before to that day.

• The counsels for the Respondent submitted that the respondent concludes that, as the appellant did not have any fundamental rights at the time of the proceedings, the appellant should be prosecuted by the procedures started on December 9, 1949.

• RELATED LEGAL PROVISIONS
  • Article 13 (1) of the Indian Constitution: “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.”
  • Article 19 (1) (a) of the Indian Constitution: “All citizens shall have the right to freedom of speech and expression;”
  • Section 6 of General Clauses Act 1897 – “Effect of repeal”
  • Section 15 (1) of Indian Press (Emergency Powers) Act, 1931: “A certified copy of the order confirming of the alteration, together with a printed copy of the memorandum as altered, shall, within three months from the date of the order, be filed by the company with the registrar, and he shall register the same and shall certify the registration under his hand, and the certificate shall be conclusive evidence that all the requirements of this Act concerning the alteration and the confirmation thereof have been complied with, and thenceforth the memorandum so altered shall be the memorandum of the company.”
  • Section 18 (1) of Indian Press (Emergency Powers) Act, 1931: “In the case of a company limited by shares and registered after the commencement of this Act, if articles are not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations in Table A in the First Schedule, those regulations shall, so far as an applicable, be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles.”

• JUDGEMENT

1. RATIO DECIDENDI

1. Constitution should be interpreted by its language, not through sentiments or emotions.
2. The power to repeal or modify a law, such as The Indian Press Emergency Powers Act, of 1931 is with the President under Article 372(2).
3. Since the Constitution protects inchoate rights and ongoing proceedings, the court rejected the argument that persecution under current legislation is against its spirit.
4. A statute is only considered invalid as per Article 13 if it is inconsistent with fundamental rights. It does not always make the legislation null and void from the start.
5. The discrepancies with the laws in place only occur after the adoption of the constitution. As fundamental rights came into force after the adoption of the Constitution
6. Existing laws are void only till they are in conflict with fundamental rights and do not affect any past transactions or rights and liabilities accrued before the Constitution’s adoption.
7. As with temporary laws, unless a statute or other saving laws are used, no further procedures are permitted.
8. The rights specified in Article 19 were not available to the appellant before the Constitution. Article 13 applies to Article 19 (1) (a) when it is in effect. So in the given case Article 13 does not have any application.
9. The appellant is unable to claim protection to avoid the consequences of his action or rely on rules of statutory interpretation
10. Because Article 13 does not contain wording that gives fundamental rights retroactive force, it does not require any accompanying legislation, such as the General Clauses Act or the Interpretation Act of England, or saving clauses.

      2. OBITER DICTA (IF ANY)

1. Retaining people in jail who were previously found guilty under oppressive legislation before the enforcement of the Constitution is against its spirit.
2. Any ongoing prosecution cannot continue after the expiry of such temporary statute if the offender has not been charged with a crime and sentenced before the statute’s expiration and it does not contain a saving provision.
3. The power to amend the law lies with the legislature, not with the courts. The court can provide relief for existing claims with inchoate rights and liabilities.
4. The idea of “qua repeal” is fictitious and it originates from the English Parliament and Courts rather than the principle of justice

• CONCLUSION & COMMENTS

The court stated in its decision that because fundamental rights are interpreted with a future perspective, allowing them to be applied retroactively would conflict with the operation of the current statute. Notably, the legislation does not immediately become unconstitutional just because the statute was passed before the Constitution. The court must review the statute before declaring it invalid, court must take into account the legislative intent underlying it and its prospective effects. A statute shall only be declared unconstitutional when such statute is in contradiction with the Constitution, according to Article 13, which grants constitutional courts the authority of judicial review. It was emphasized that although criminal laws may have provisions that provide benefits to criminals through retrospective effect fundamental rights did not exist at the time when the prior legislation was in force. Consequently, the court determined that the appellant’s prosecution was correct, concentrating on the inchoate rights, duties, and punishment specified in the Indian Press (Emergency Powers) Act.

• REFERENCES

1. 1. Important Statutes Referred
      1. Constitution of India, 1950 – Article 13(1), Article 19 (1) (a), Article 132(1), Article 228
      2. General Clauses Act, 1897 – Section 6
      3. Indian Press (Emergency Powers) Act, 1931 – Section 15(1), Section 18 (1)