Law Maker

Keshavan Madhava Menon v. State of Bombay

Supreme Court of India, 22 January 1951, 7 judges, 1951 AIR 128, 1951 SCR 228

Article 13(1) is prospective. A prosecution started before 26 January 1950 under a pre-Constitution law can continue even if that law later became void for inconsistency with fundamental rights.

Facts

The appellant, secretary of a publishing company in Bombay, was prosecuted in 1949 under section 18(1) of the Indian Press (Emergency Powers) Act, 1931, for publishing a pamphlet treated as a news sheet without authority under section 15(1). While the case was pending before the Chief Presidency Magistrate, the Constitution came into force. He applied to the Bombay High Court under Article 228, contending that the provisions were void under Articles 13(1) and 19(1)(a) and that the prosecution could not go on. The High Court held that even if the Act was void, the pending proceedings were saved, treating 'void' as 'repealed' and applying section 6 of the General Clauses Act. He appealed on a certificate under Article 132(1).

Questions before the Court

  1. Whether Article 13(1) operates retrospectively so as to wipe out pre-Constitution laws inconsistent with fundamental rights for all purposes.
  2. Whether a prosecution pending on 26 January 1950 under such a law could be continued after the Constitution came into force.

What the Court held

  • Article 13(1) has no retrospective effect. Fundamental rights came into being only with the Constitution, so the inconsistency of existing laws with them can arise only from that date.
  • Article 13(1) does not make inconsistent existing laws void ab initio or for all purposes. They are void only to the extent of the inconsistency and only as regards the future exercise of fundamental rights.
  • Such laws continue to govern past transactions and rights and liabilities accrued before the Constitution. There is no fundamental right not to be prosecuted for an offence committed before the Constitution came into force.
  • The pending prosecution could therefore continue. The majority agreed with the High Court's conclusion on different grounds and did not examine its reasoning based on section 6 of the General Clauses Act. The appeal was dismissed.

Why it matters

The judgment settles that Article 13(1) is prospective and does not erase pre-Constitution laws from the statute book. Past acts remain governed by the law as it stood, so pre-Constitution offences can still be prosecuted. The majority also rejected reliance on an assumed spirit of the Constitution, holding that the spirit must be gathered from the language of the Constitution.

In the Court's words

Copied from the official judgment; each passage links to its page.

“Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13 (1) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way.”
Das J.Page 5 of the judgment
“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.”
Das J.Page 6 of the judgment
“An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion; but a court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.”
Das J.Page 4 of the judgment

Provisions interpreted

Case and bench

Parties
Keshavan Madhava Menon v. The State of Bombay
Case
Appeal under Article 132(1) of the Constitution from the judgment of the Bombay High Court in Case No. I X of 1950
Decided
22 January 1951
Bench
Das, Sudhi Ranjan, Kania, Hiralal J. (CJ), Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Aiyar, N. Chandrasekhara, Mukherjea, B.K.
Opinions
Majority 5:2. Judgment of Kania C.J., Patanjali Sastri, Das and Chandrasekhara Aiyar JJ. delivered by Das J.; Mahajan J. wrote separately and also dismissed the appeal. Fazl Ali J. dissented, and Mukherjea J. agreed with him.

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