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Keshavan Madhava Menon v. State of Bombay, AIR 1955 SC 128 : case analysis

April 11, 2024

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This article has been written by Sarthak Mittal. The article aims to demystify the dictum laid down by the Supreme Court in the case of Keshavan Madhava Menon v. State of Bombay (1955). This article focuses on the application of Article 13 of the Indian Constitution to pre-existing laws. It aims to clarify the effect of the repugnancy of the pre-existing laws on the newly conferred fundamental rights upon the citizens of India by the introduction of the Indian Constitution. The article also delves into the question of whether, if such a pre-existing law is found to be repugnant, it should be repealed prospectively or retrospectively.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

The Indian Constitution is a transformative document that captures the shift of our country from a colonial regime to an independent and sovereign nation. The Indian Constitution conferred various primordial and fundamental freedoms upon its citizens which formed an edifice for a democratic nation, these were primarily all those rights to which the citizens were deprived whilst being under the tyranny of colonial rule. In colonial India, the laws were legislated with the intent to facilitate the rule of the Britishers and not for the welfare of the Indian citizens as a corollary these laws infringed upon various basic human rights of the citizens.

The Constituent Assembly aimed to get the citizens rid of such oppressive laws and thus inserted Article 13 in the Indian Constitution which inter alia provides that pre-constitutional laws which continue to be in force in Independent India could be tested on the anvil of fundamental rights and if they are found to be inconsistent to the said rights then the law will be void to the extent of such inconsistency. An important question arose before the Supreme Court of India in the case of Keshavan Madhava Menon v. State of Bombay (1955) that, whether the pre-constitutional laws that are rendered void by virtue of Article 13(1), be treated as void ab initio or whether such nullity due to Article 13(1) has a prospective effect from the date of enforcement of the Constitution that is 26.01.1950. The article delves into the sound reasoning supplied by the court to resolve the given issue.

Brief details of Keshavan Madhava Menon v. State of Bombay

Name of the case

Keshavan Madhava Menon v. State of Bombay

Date of judgement

22 January, 1951

Parties to the case

Appellant

Keshav Madhav Menon in the capacity of the secretary of an incorporated company by the name of People’s Publishing House Ltd.

Respondent

The government of Bombay, now Mumbai

Represented by

Advocate for appellant

Adv. A.S.R. Chari

Advocate for respondent

M.C. Setalvad, the then Attorney General for India with Adv. G.N. Joshi

Equivalent citations

1951 SCC 16, 1951 SCC Online SC 3, AIR 1955 SC 128

Type of the case

Appeal filed by the appellant on the basis of the certificate granted by the High Court of Bombay under Article 132(1) of the Constitution.

Court

The Supreme Court of India

Referred provisions

Articles 13 and 367 of the Constitution of India, Section 6 of the General Clauses Act,1897.

Bench

The case was decided by a bench of seven judges, and a majority decision of 5 judges laid the dictum. The case was presided over by the then Hon’ble Chief Justice of India H.J. Kania and Hon’ble Justices Fazl Ali, Patanjali Sastri, M.C. Mahajan, B.K. Mukherjea, S.R. Das and Chandrasekhara Aiyar.

Author of the judgement

The majority judgement was authored by Hon’ble Justice S.R. Das for himself and on behalf of the then Hon’ble Chief Justice of India H.J. Kania, Hon’ble Justice Patanjali Sastri and Hon’ble Justice Chandrasekhara Aiyar, along with Hon’ble Justice M.C. Mahajan, who delivered a separate judgement concurring with the majority opinion.

The minority judgement was authored by Hon’ble Justice Fazl Ali, and Hon’ble Justice B.K. Mukherjea concurred with the same.

Facts of Keshavan Madhava Menon v. State of Bombay

Date	Brief facts
September, 1949	The appellant’s company published a pamphlet in Bombay titled “railway mazdooron ke khilaf nai sazish”, which translates to “a new ruse against the railway workers”.
9th December 1949	The appellant was arrested as the Bombay government authorities initiated criminal proceedings against him under Section 18 of the Indian Press (Emergency Powers) Act, 1931 (hereinafter mentioned as, “the Act”) which provides that publication of news sheets and newspapers without procuring the permission from the magistrate under Section 15 is an offence punishable with imprisonment of term extending up to 6 months or with fine or both. The case put forth by the authorities was that the pamphlet published by the appellant falls under the ambit of the expression “news sheet” as defined under Section 2(6) of the Act and thus, the appellant could not have published the said pamphlet without the authority of the magistrate as required under Section 15 of the Act. The proceedings before the court of the chief presidency magistrate of Bombay were initiated, and the appellant was prosecuted.
26th January,1950	The Constitution of India came into force. The Constitution conferred various fundamental rights upon the citizens under Part III of the Indian Constitution.
3rd March,1950	The appellant (accused in the pending criminal proceedings) filed a written statement submitting that the provisions on the basis of which the prosecution was initiated against him, namely, Sections 2(6), 15 and 18 of the Act, were ultra vires and void as they infringed the right to freedom of speech and expression conferred by the Constitution on him under Article 19(1)(a). He further submitted that the criminal proceedings against him should be stayed until the High Court decides the validity of the said provisions.
7th March, 1950	The appellant (the petitioner in the proceedings before the high court), filed a petition under Article 228 of the Constitution. The appellant sought that the criminal proceedings initiated against him be declared void and that the court pass an order for the acquittal of the petitioner on the grounds that Sections 2(6), 15 and 18 of the Act are void by virtue of Articles 19(1)(a) read with 13(1).
12th March, 1950	The petition by the appellant was heard by a three-judge bench of the Bombay High Court, wherein the case was presided over by the then Hon’ble Chief Justice of the Bombay High Court, M.C. Chagla, Hon’ble Justice Bavedkar and Hon’ble Justice Shah. The court, in its judgement, refrained from adjudicating upon the validity of the provisions challenged by the appellant. The court adjudicated upon the issue that even if the challenged provisions were found to be in the teeth of fundamental rights and thus void under Article 13(1) of the Indian Constitution, would the proceedings initiated before the commencement of the Constitution under the given provisions be allowed to be continued or not? Therefore, the core of the controversy is that if any legislative statute is in force before the enforcement of the Indian Constitution and it is found that the statute is void as per Article 13(1), then, will the statute be treated as void ab initio or be treated as void from the date of the commencement of Constitution. The High Court held that the word “void” used under Article 13(1) of the Indian Constitution is used in the sense of “repealed”. The Court then referred to Article 367 of the Constitution, which provides that the provisions of the General Clauses Act, 1897, can be used to interpret the Constitution. The court thus read Section 6 of the General Clauses Act, 1897, into Article 13(1). Section 6 of the 1897 Act provides that the repealing Act or regulation will always have a prospective effect unless an intention of retrospective applicability appears. The court thereby reached to the conclusion, that even if the provisions are assumed to be void by virtue of Article 13(1), the nullity will have the effect of the provisions being repealed by the introduction of the Constitution and by virtue of Section 6 of the 1897 Act, the effect of repeal will be prospective from the date of commencement of the Constitution. Thus, the proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commencement of the Constitution, will not be affected.
12th April, 1950	Being aggrieved by the decision of the Bombay High Court, the appellant (the petitioner in the earlier proceedings) presented an appeal before the Supreme Court on the basis of the certificate granted by the high court under Article 132(1) of the Indian Constitution.

Issue before the court

In the given case, the court dealt with the issue of whether, assuming the provisions of the Indian Press (Emergency Powers) Act, 1931, are void as per Article 13(1), the proceedings pending at the time of commencement of the Constitution under the said provisions should be proceeded with or not.

Arguments advanced

Arguments advanced by the appellant

Adv. A.S.R. Chari made various deft submissions on behalf of the appellant. The submissions made were as follows:-

That, the Indian Press (Emergency Powers) Act, 1931, was one of the various repressive laws enacted by an alien government to stifle the liberty of their subjects and to curb the liberty of the Indian press.
That, it was with the advent of independence that the people of India started to breathe freely and by the Constitution, they gave unto themselves the fundamental rights that made them free citizens of a democratic republic and Article 13(1) of the Constitution brushed aside all vestiges of subordination that the tyranny of the alien rulers had imposed on the citizens of this country. Thus, Article 13(1) aimed to declare all the pre-constitutional laws that were inconsistent with the fundamental rights as void in such a sense, as if these laws would never have existed.
That, it was against the spirit of the Constitution that the citizens of the country be allowed to be persecuted under such a retrograde law, which is inconsistent with their fundamental rights.
That, any law that, after the commencement of the Constitution, became void by virtue of Article 13 could and should not be looked at for any purpose and far less could such a law be used for framing charges and punishing the citizens of India.
That, to extend validity to any proceedings that flow from any pre-constitutional law that is void as per the Constitution is to prolong the efficacy of the law.
That the effect of the language employed in Article 13(1) is that the proceedings before the commencement of the Constitution could not be continued if the law under which the proceeding is initiated is inconsistent with the fundamental rights. To buttress this contention, the reliance was placed upon the construction stated in Maxwell on Interpretation of Statutes, p 404, which provided as follows:-

“Where an Act expired or was repealed, it was formerly regarded, in the absence of a provision to the contrary, as having never existed, except as to matters and transactions passed and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force.”

This rule is based on a statement by Tindal, C.J. in Kay v. Goodwin (1830). The learned Chief Justice made the following observations : (ER p. 1405)

“… I take the effect of repealing a statute to be, to obliterate it as completely from the records of Parliament as if it had never passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.”

That, Articles 249(3), 250, 357, 358 and 369 are consciously provided by the Constituent Assembly for saving the necessary portion of the laws that have automatically expired after the commencement of the Constitution. It was also argued that Article 13(1) fails to provide for a savings clause, to save the pending proceedings initiated in pre-constitutional law, as has been done in the herein-mentioned Articles.
That, the High Court erred in applying Section 6 of the General Clauses Act, 1897, for the interpretation of Article 13(1) as the Article did not mean to repeal the existing law; rather, the Article provides power that is wider than that of repealing the provision, wherein the court can declare the law inconsistent with fundamental rights as void, and thus the court is empowered to wipe out the whole statute at once.
That, the essence of fundamental rights embodied in Part III of the Constitution will be tainted by keeping alive the prosecutions and actions under the laws framed by the foreign government, especially when the Constitution warrants for such laws to be void.

Arguments advanced by the respondent

The arguments advanced by the respondent were primarily based on the reasoning provided by the High Court of Bombay, Thus, the core contentions put forth by the respondent were as follows:-

That, Section 6 of the General Clauses Act, 1897, should be applied to the laws that are in teeth of Article 13(1) because the word “void” used in Article 13(1) is to be construed as “repealed” and not as “void ab intio” this is because the fundamental rights are the new rights conferred upon the citizens from 26.01.1950 and thus, they can not be expected to defeat the rights and liabilities which arose before the date of 26.01.1950.
That, the implication set out by the respondent is that the appellant should be prosecuted as per the proceedings initiated on 9.12.1949, as the appellant had no fundamental rights existing on this date.

The minority opinion in the judgement by Hon’ble Justice Fazl Ali is incongruent with the contentions of the respondent. The minority opinion also observes that Article 13(1) provides for implied repeal at best and that the respondent conceded to the fact that it is unclear whether Section 6 of the 1897 Act applies in cases of implied repeal.

Findings of the court in Keshavan Madhava Menon v. State of Bombay

The judgement comprises both majority and minority opinions, wherein the majority opinion is couched in two separate judgements, one authored by Hon’ble Justice S.R. Das and the other authored by Hon’ble Justice M.C. Mahajan. The minority opinion was authored by Hon’ble Justice Fazl Ali, and Hon’ble Justice B.K. Mukherjea concurred with the same.

Majority opinion

The opinion is authored on behalf of the then Hon’ble Chief Justice of India, H.J. Kania and Hon’ble Justices Patanjali Sastri and Chandrasekhara Aiyar. The judgement started with the observation that, an argument based on the spirit of the Constitution always seems to be attractive as it appeals to the sentiment and emotion of the court; however, what the litigant believes to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. This observation becomes the core consideration in the court’s reasoning, as the court, in its majority opinion, gathered the meaning from the verbatim provisions.

Article 13(1) to have prospective applicability

The court observed that the argument of the appellant about the spirit of the Constitution being pierced by the continuation of pending proceedings under obsolete pre-constitutional laws cannot be accepted as the Constitution takes notice of concepts like the repealing of laws. The court delved into the effect of repeal by stating that whenever a law is repealed, the law is expunged from the date of repeal and thus has a prospective effect. This saves inchoate rights, liabilities and pending proceedings that flow from the repealed law until the date of repeal. If the authority repealing the law intends to completely obliterate the law from the very date of its inception, the repealing statute should expressly state the same to give it a retrospective effect.

The court observed that every statute is prime facie prospective in its applicability unless the same is made retrospectively applicable through express verbatim or necessary implication. The court observed that the same applied to the statutes that dealt with repealing statutes and that there was no sound logic to inspire the court to digress from the given established proposition of law.

The court, while interpreting Article 13, held that, when a pre-constitutional law is inconsistent with fundamental rights, it is void to the extent of the inconsistency by virtue of Article 13. The court explained that the fundamental rights which Article 13 aims to protect were conferred upon the citizens for the first time by the Constitution on 26.01.1950. Thus, the fundamental rights become operative only from 26.01.1950 and any question of the inconsistency of the existing laws with fundamental rights should necessarily arise on and from 26.01.1950. As a natural incident of this, Article 13(1) can have no retrospective effect and is wholly prospective. The expression used in Article 13(1), namely, “to the extent of such inconsistency be void” also hints towards the legal proposition that the pre-constitutional laws that are in Article 13(1) do not become void for all purposes but are void only to the extent of their inconsistency. Such laws remain valid for past transactions, but have a limited scope due to Article 13(1) for future transactions.

Difference between a temporary statute and the repeal of a statute by a subsequent statute

The court negated the contention of the appellant that Articles 249(3), 250, 357, 358 and 369 are consciously provided by the Constituent Assembly for saving the necessary portion of the laws that expired after the commencement of the Constitution. The court observed that the given provisions are concerned with the expiry of temporary statutes. The court explained that if proceedings are pending under a temporary statute and the statute expires due to efflux of time or any other reason, then the proceedings will also come to an end unless a savings clause has been added to the statute, saving the pending proceedings from the obliteration of the statute. The court observed that the given provisions act as savings clauses for temporary statutes and not for all the statutes. Thus, the statutes that are repealed due to the application of Article 13(1) will not be covered in the given situation.

Section 38 of the Interpretation Act, 1889 and Section 6 of the General Clauses Act, 1897

The judgement authored by Hon’ble Justice M.C. Mahajan for himself and on behalf of Hon’ble Justice Chandrasekhara Aiyar provides the reasoning for negating the contentions of the appellant made on the strength of the rule of construction provided by Justice Tindal in Kay v. Godwin and also stated in Maxwell on the interpretation of statutes. The appellant herein contended that the effect of the statute being repealed is that it is taken to be completely obliterated as if it had never been passed by the parliament. The court affirmed the existence of said proposition of law; however, the court observed that the said proposition was changed by the introduction of the Interpretation Act, 1889, wherein Section 38 provides that if a statute is repealed, the pending proceedings under the statute will be saved even from the repeal of the statute. A similar provision is incepted in the Indian jurisdiction through Section 6 of the General Clauses Act, 1897. The court further upheld the dictum laid down by the High Court that Section 6 of the General Clauses Act, can be used for the interpretation of the Constitution by virtue of Article 367 of the Constitution.

The court also held that the rule evolved by Justice Tindal in Kay v. Godwin is of an “artificial nature”. The court held that the observation of the Justice to construe the word “repeal” as a complete obliteration of the statute from the records of Parliament is laying down the meaning of the word in its ordinary dictionary sense and the same is not sustainable as a sound rule of construction.

The expression “void” has no larger effect than the expression “repeal”

The court negated the contention of the appellant that the application of Section 6 of the General Clauses Act, 1897, to Article 13(1) is unjustified as the word “void” used in Article 13(1) provides a larger effect than the word “repealed” used in Section 6. The former provides the court with the power to declare a law void, whereas the latter provides for the power of the legislature to pass a subsequent law to declare the law in force inoperative. The court held that the contention could not be upheld and that the rule proposed by the appellant could not be applied purely on sentimental grounds.

The remedy lies with the government and the legislature, not with the court

The court observed that the contention of the appellant that the Constituent Assembly would not have intended to allow the continuance of prosecution of citizens under foreign laws is appealing and plausible. However, the court held that the given contention appeals more to the heart than to the head and that it is not based on sound principles of construction. The court observed that if any proceedings continue under an obsolete pre-constitutional law, then the court has no discretion to decline to entertain the same. It is the government and the legislature that, through the amendment, can bring such distasteful proceedings to an end.

Acceptance of the argument advanced by the appellant may give rise to an anomalous situation

The court observed that if the arguments of the appellant are accepted, this can lead to a very strange situation. The court explained with an example wherein, a person is convicted under an obsolete pre-constitutional law before 26.01.1950 and the convicted person prefers an appeal against the said conviction after 26.01.1950. Now, in this case, if the arguments of the appellant are accepted, then the convicted person would be barred from filing the appeal, as the courts will not be able to continue the proceedings under an obsolete pre-constitutional law because of it being void by virtue of Article 13(1). Due to this, the court will be rendered powerless to take further action to pacify the agony of the person who has been wrongly convicted. The proceedings, which are for the benefit of the citizens, will also be prohibited if the arguments of the appellant are accepted. The appellant conceded to the reasoning given by the court.

Minority opinion

The minority opinion is authored by Hon’ble Justice Fazl and has been concurred by Hon’ble Justice B.K. Mukherjea.

The effect of repealing statutes

The judgement refers to the reliance placed by the appellant on the construction of temporary and repealed law as given in Caries on Statute Law, which is based on the dictum laid down in the case of J.K. Gas Plant Mfg. Co. (Rampur) Ltd. v. King Emperor (1947). The legal position as dictated by the dictum, is that when a statute is repealed, it must be considered as if it never existed, saving the past and the closed transactions. The emphasis should be laid on the word “closed,” as it would imply that all the proceedings that have been heard and finally decided should remain intact while the pending proceedings should fall flat and thus, come to an end. The legal position is based on the decision laid down by Lord Tenterden in Surtees v. Ellison (1829) and by Tindal, C.J., in Kay v. Goodwin (1830). The opinion is strengthened by placing reliance on the opinion of Crawford in his book on “Statutory Construction”, dictum laid down in the cases of Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Mumford (1935) and Wall v. Chesapeake and Ohio Railway Co. (1919). The Hon’ble Justice opined that the law that has been enunciated by eminent judges of both England and America can not be brushed aside as it is based on good and sound reasoning.

The effect of Section 6 of the General Clauses Act, 1897 on repeal by implication

The minority opinion agrees that Section 6 of the General Clauses Act, 1897 is added to change the legal implications of repealing statutes, as is given in the above-mentioned opinion. However, as per the Hon’ble Justice, the application of Section 6 can be allowed for repealing statutes as an express provision can be added in the statute to counteract the effect of the provision. The core idea of the minority opinion is that the application of Section 6 can not be allowed in cases where there is a repeal by implication.

Effect of Article 13(1)

The minority opinion refers to the Constituent Assembly debates and observes that the expression “shall stand abrogated” was originally used instead of the expression “shall be void”. The Constituent Assembly debated the effect of the originally used expression on the pending proceedings and upon anything duly done or suffered under the pre-constitutional law. The expression was abandoned and perhaps the strongest expression was used, which is “shall be void”. The adoption of the latter expression as per the minority opinion was a conscious choice of the Constituent Assembly so that the law in teeth of Article 13(1) be treated as void ab intio.

The court also relied on the meaning of the word “void” as stated in Black’s Law Dictionary (3rd Edition). The meaning, as per the said dictionary, is to have no legal force or binding effect, to be nugatory or ineffectual. The word void is also described as being unable in law to support the purpose for which it was intended and that the same is incurable.

The opinion delved further into the intent of the Constituent Assembly by bringing out the conscious use of the word “repeal” in provisions like Articles 252, 254, 357, 372, 396, use of the word “invalid” in Articles 245, 255 and 276, use of the expressions “ceases to have effect” and “shall be inoperative” in Articles 358 and 372 and, on the other hand, the deliberate use of the word “void” in Articles 13(1) and 254. The opinion also emphasises that both the latter mentioned Articles deal with certain laws that are repugnant to another law to which a greater sanctity is attached. Article 13(1) comes into effect when repugnancy is with fundamental rights and Article 254 comes into effect when there is repugnancy between a law made by the state legislature and a law made by parliament on the subject on which the parliament is competent to make law. Thus, the use of the word “void” hints at the intent of Constitution framers to make the repugnant law void ab initio.

Thus, at last, the minority opinion held that giving the word “void” a milder effect would not be an act of bringing the intention of the Constitution framers to fruition.

Aftermath of Keshavan Madhava Menon v. State of Bombay

To this date, the dictum laid down by the Supreme Court in the case of Keshavan Madhava Menon v. State of Bombay (1951) continues to be a sound and intact legal proposition. The dictum has been discussed and has formed the basis for the decision of the court in various cases relating to Article 13 like CBI v. R.R. Kishore (2023) relating to the retrospective effect of amendments made in criminal laws, Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955) relating to the doctrine of eclipse, State of Gujarat v. Ambica Mills Ltd. (1974) relating to the post-constitutional laws which are in teeth of Article 13(2), K.K. Poonacha v. State of Karnataka (2010) relating to applicability of the doctrine of eclipse on pre and post-constitutional laws and primarily the case of Behram Khurshed Pesikaka v. The State of Bombay (1955) which dealt with the effect of the decision laid down in the State of Bombay v. F.N. Balsara (1951) case upon the Bombay Prohibition Act, 1949.

The dictum was also questioned in the landmark case of Lachmandas Kewalram Ahuja v. State of Bombay, (1952) wherein the court delved into the retrospective applicability of laws however, the court again appreciated and upheld the decision of the court and held that amendment to laws can not apply to the proceedings already initiated, liabilities already incurred and rights already accrued unless the same has been expressly provided in the amendment or the need of retrospective application is warranted by necessary implications.

Conclusion

The law has an inexorable tendency to move from subjectivity towards objectivity, from vagueness towards clarity and from the incongruent realm of uncertainty towards certainty. This movement is stirred by conscious legislative amendments and thoughtful judicial pronouncements. It is pertinent to note that when a judicial pronouncement with both majority and minority opinions aims to clarify the law it leads to a very interesting situation as it compels the society to move forward as per the dictum laid down by the majority opinion while being reminded of the alternative course that the decision could have taken if the minority opinion would have been accepted. Thus, whenever there remains a minority opinion, there always remains a hope and probability of its acceptance, adoption and inculcation of such opinion by the judges down the line.

In the given judgement, the majority opinion lays down the legal proposition that the repealing of a statute will always have a prospective effect. Thus, the legal principle enunciates that the rights, liabilities and proceedings already born, created and initiated before the repeal should remain in force unless the legislature opines that the effect of the repeal should be retrospective. This legal principle has been accepted and has been reaffirmed by the Supreme Court in various subsequent judgements.

As a personal opinion of the author, the minority opinion that the said legal principle, even though sound, should not be made applicable in cases of implied repeal, such as under Article 13(1) holds water. It is necessary to differentiate cases of implied repeal from the cases of repeal by statute because in the latter case, the legislature has the option to make the repeal prospectively applicable, bypassing the effect of Section 6 of the General Clauses Act, however, in cases of the former, it is the courts that declare a statute to be void or to be repealed due to the violation of fundamental rights.

The reference to the Constituent Assembly debates made in the minority opinion and whilst keeping in mind the importance of fundamental rights, the better and more acceptable proposition of law seems to be the one laid down by the minority opinion.

Apart from that, in cases where the pending proceedings under the obsolete and archaic pre-constitutional laws continue to torment the Indian citizens, the duty should be of the legislature to come up with specific repealing statutes remedying the given situation and of the courts to craft and mould reliefs under Article 142 of the Indian Constitution. The court may also use remedies like issuing a writ of mandamus to the government to come up with specific laws remedying the given situation.

Frequently Asked Questions (FAQs)

What does the prospective applicability of fundamental rights mean?

The Constitution of India came into force in two phases, certain provisions, as specified in Article 394, came into force on 26.11.1949 and the rest of the Constitution came into force on 26.01.1950. The fundamental rights enshrined in Part III of the Constitution came into force at the later date and have been made prospectively applicable. This means that if a person’s fundamental right is infringed upon before 26.01.1950 for instance, on 26.12.1949, he will not be able to seek remedy in the court as he had no fundamental rights on 26.12.1949. However, if his fundamental rights are infringed by any act after 26.01.1950, he can seek remedy of the court by Article 13(2) and Article 32.

One of the imperative legal implications that flow from the prospective application of fundamental rights is that when any pre-constitutional law is declared void under Article 13(1), the proceedings initiated under the said pre-constitutional law before 26.01.1950 will remain valid. This is because the person who got entitled to fundamental rights on 26.01.1950 had no fundamental right on the date of initiation of such proceedings. Thus, the prospective applicability of fundamental rights reduces the effect of Article 13(1).

What is the effect of repealing post-constitutional statutes?

The current legal position regarding the retrospective and prospective applicability of repealing post-constitutional laws has been best captured by the recent judgement of the Supreme Court in the case of The State of Manipur & Ors. v. Surjakumar Okram & Ors. (2022), wherein the three-judge bench of the Supreme Court comprising of Hon’ble Justices LN Rao, BR Gavai and BV Nagarathna, referred to the judgements of the court in various cases namely Norton v. Shelby County(1886), Behram Khurshid Pesikaka v. State of Bombay (1955), Deep Chand v. State of Uttar Pradesh & Ors. (1959), Keshavan Madhava Menon v. State of Bombay (1951) and State of Punjab v. Harnek Singh (2002) to crystalize the legal proposition as follows:-

A statute that has been passed by a competent legislative authority as per the Constitution is valid until and unless it is declared to be void by the courts or is repealed by a subsequent statute passed by the legislature.
Once the statute is declared void or is repealed, the statute is deemed non-existent for all purposes.
The courts can invoke the doctrine of prospective overruling to save past transactions when declaring a law void. However, whenever a statute is repealed by an act of parliament or legislature, it is always applied prospectively until and unless the repealing Act warrants retrospective applicability.
The court can mould a relief under Article 142 irrespective of the fact that the statute is declared unconstitutional.