Keshavan Madhava Menon v State of Bombay

The case of Keshavan Madhava Menon v State of Bombay addresses the retrospective applicability of fundamental rights under the Constitution of India, 1950. It focuses on the validity of pre-Constitutional laws inconsistent with fundamental rights and whether such laws became void ab initio upon the Constitution’s commencement. This landmark judgement clarified the interpretation of Article 13 and its prospective application, balancing the enforcement of new fundamental rights with the continuity of pre-existing legal systems.

Facts of Keshavan Madhava Menon v State of Bombay

• Publication of Pamphlet: In September 1949, the petitioner, Keshavan Madhava Menon, secretary of a publishing house, published a pamphlet titled “Railway Mazdooron Ke Khilaf Nai Sazish” in Bombay. This pamphlet was deemed to violate Section 15(1) of the Indian Press (Emergency Powers) Act, 1931, which prohibited the publication of news sheets without prior permission from the magistrate.
• Prosecution Initiated: On December 9, 1949, the petitioner was prosecuted under Section 18 of the Act, which prescribed penalties for such violations.
• Constitution Came into Force: On January 26, 1950, the Constitution of India was enacted, conferring fundamental rights, including the right to freedom of speech and expression under Article 19(1)(a).
• Challenge to the Act: The petitioner argued that the provisions of the 1931 Act were inconsistent with Article 19(1)(a) and became void under Article 13(1), which declares laws inconsistent with fundamental rights void to the extent of such inconsistency.
• High Court Decision: The Bombay High Court dismissed the petitioner’s plea, holding that proceedings initiated under pre-Constitutional laws were not affected by Article 13(1), as it applied prospectively.
• Appeal to the Supreme Court: Aggrieved by the High Court’s decision, the petitioner appealed to the Supreme Court.

Issues Before the Court

The issues raised in Keshavan Madhava Menon v State of Bombay were:

• Whether Sections 15 and 18 of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with Article 19(1)(a) read with Article 13(1) of the Constitution.
• Whether Article 13(1) rendered pre-Constitutional laws void ab initio or applied only prospectively.
• Whether prosecutions initiated before the Constitution came into effect could continue under pre-Constitutional laws.

Arguments Advanced

Petitioner’s Contentions

• Void Ab Initio: The petitioner argued that Article 13(1) rendered inconsistent pre-Constitutional laws void as if they had never existed. This interpretation aligns with the intent of the Constitution to eliminate oppressive colonial laws that infringed on fundamental rights.
• Violation of Freedom of Speech: Section 15(1) and Section 18 of the 1931 Act curtailed the right to freedom of speech and expression under Article 19(1)(a).
• No Savings Clause: Unlike other provisions in the Constitution (e.g., Articles 249(3), 250, 357, 358, and 369), Article 13(1) did not include a savings clause to protect pending proceedings under repealed or void laws.
• Maxwell’s Rule of Construction: Based on Tindal C.J.’s observation in Kay v. Goodwin, repealed laws are treated as having never existed unless saved explicitly.
• Fundamental Rights: Allowing prosecutions under colonial law, even after the Constitution’s commencement, would negate the transformative effect of fundamental rights.

Respondent’s Contentions

• Prospective Effect of Article 13: The word “void” in Article 13(1) should be interpreted as “repealed,” implying prospective invalidation, not retrospective abrogation.
• Continuity of Pre-Constitutional Laws: Pending proceedings under pre-Constitutional laws should not be affected since the laws were valid when the actions occurred.
• General Clauses Act, 1897: Section 6 of the General Clauses Act, 1897, preserves pending proceedings even if the law under which they were initiated is repealed.
• Practical Implications: Retroactive application of Article 13(1) would create legal chaos, invalidating all actions taken under pre-Constitutional laws.

Keshavan Madhava Menon v State of Bombay Judgement

The landmark judgement in Keshavan Madhava Menon v State of Bombay features both majority and minority opinions.

Majority Opinion

The majority opinion in Keshavan Madhava Menon v State of Bombay, authored by Justices S.R. Das and M.C. Mahajan, with concurrence from Chief Justice H.J. Kania, Justices Patanjali Sastri, and Chandrasekhara Aiyar, is based on textual interpretation of the Constitution.

Spirit of the Constitution vs. Textual Interpretation

The court observed that while arguments based on the spirit of the Constitution are appealing, they cannot override the clear language of the Constitution. The court relied on the verbatim provisions, emphasising that textual clarity must guide interpretation.

Article 13(1) Is Prospective

• The court held that Article 13(1) does not operate retrospectively. It renders pre-Constitutional laws inconsistent with fundamental rights void only from January 26, 1950, and not ab initio.
• Repealed laws generally have a prospective effect unless expressly made retrospective. Article 13(1) follows the same principle unless the Constitution explicitly states otherwise.

Limited Scope of “Void”

• The expression “void” in Article 13(1) applies only to the extent of inconsistency with fundamental rights and for future purposes. Pre-Constitutional laws remain valid for transactions completed or pending before the Constitution’s enforcement.
• Fundamental rights, including those under Article 19(1)(a), became enforceable only from the Constitution’s commencement and cannot affect past actions.

Temporary Statutes vs. Repealed Statutes

The court in Keshavan Madhava Menon versus State of Bombay clarified the difference between temporary and repealed statutes. When a temporary statute expires, proceedings under it also end unless a savings clause exists. However, repealed statutes under Article 13(1) continue to have legal effect for past transactions, protected by Section 6 of the General Clauses Act, 1897.

Section 6 of the General Clauses Act, 1897

• Section 6 saves ongoing proceedings even after the repeal of a law. Article 367 of the Constitution allows this principle to apply to the interpretation of constitutional provisions.
• The court rejected the appellant’s reliance on Kay v. Goodwin and Maxwell on the Interpretation of Statutes, which suggested that repealed laws are obliterated entirely. It deemed this rule of construction artificial and unsound.

No Judicial Discretion to End Proceedings

The court emphasised that ending prosecutions under pre-Constitutional laws due to their inconsistency with fundamental rights is a legislative prerogative, not a judicial one. The Constitution provides a clear framework for determining the prospective application of laws.

Minority Opinion

The minority opinion, authored by Justice Fazl Ali with concurrence from Justice B.K. Mukherjea, offered a contrasting perspective.

The minority noted that the Constituent Assembly initially used the term “shall stand abrogated” in Article 13(1) but later replaced it with “shall be void.” This deliberate choice reflected an intent to treat inconsistent laws as void ab initio.

The minority relied on Black’s Law Dictionary and other authoritative sources, interpreting “void” to mean having no legal force or effect from inception. Articles 13(1) and 254 use “void” to address laws repugnant to higher norms, implying that such laws should be considered non-existent from their origin.

The minority agreed that Section 6 of the General Clauses Act applies to repealed statutes but contended that it does not apply to implied repeals. Article 13(1), by declaring laws void due to inconsistency with fundamental rights, effectively repeals them by implication.

Conclusion

The Supreme Court in Keshavan Madhava Menon v State of Bombay dismissed the appeal and upheld the decision of the Bombay High Court. The court ruled that:

• Article 13(1) Does Not Have Retrospective Effect: It applies prospectively from January 26, 1950, rendering inconsistent pre-Constitutional laws void only for future purposes.
• Pending Proceedings Are Not Affected: Legal actions initiated before the Constitution’s commencement under pre-Constitutional laws remain valid.
• Legislative Remedy: Any perceived injustice arising from the application of obsolete laws must be addressed by the legislature, not the judiciary.