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TMI Blog2023 (9) TMI 1691X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Subramanian Swamy vs. Director, Central Bureau of Investigation and another [(2014) 8 SCC 682], that Section 6A of the Delhi Special Police Establishment Act, 194 [In short 'DSPE Act'] being unconstitutional, can be applied retrospectively in context with Article 20 of the Constitution. 2. Necessary facts relevant for the purposes of this case are stated hereunder: 2.1 The appellant-Central Bureau of Investigation [In short, "CBI"] after registering the First Information Report at 02:00 pm on 16.12.2004 for offences under the Prevention of Corruption Act, 1988 [In short "PC Act, 1988"] laid a trap in the evening on the same day wherein the respondent is said to have accepted bribe to set the things right for the radiologist conducting Pre-Natal test to determine the sex of the foetus in contravention of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The respondent applied for discharge, inter alia, amongst others on the ground that the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government as provided under Section 6A of the DSPE Act. 2.2. The Special Judge, CBI, reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in such re-investigation shall be placed before the Special Judge for further proceedings in accordance with law. If the approval is not given by the Central Government, then the same shall be notified to the Special Judge who shall then close the case." 2.3. The CBI, feeling aggrieved by the judgment of the Delhi High Court, has preferred the present appeal substantially on the ground that Section 6A(2) of DSPE Act would be applicable and not Section 6A(1) thereof. The High Court erred in holding that Section 6A(1) was applicable. 2.4. The said appeal is pending since 2007. During the pendency of the appeal Section 6A(1) of the DSPE Act was held to be invalid and violative of Article 14 of the Constitution by a Constitution Bench vide judgment dated 06.05.2014 in the case of Subramanian Swamy (supra). Paragraph 99 of the said report which makes the above declaration is reproduced hereunder: "99. In view of our foregoing discussion, we hold that Section 6A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation relates to: (a) the employees of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question for determination and the same is reproduced hereunder: "7. The provisions of Section 6A(1), extracted above, do indicate that for officers of the level of Joint Secretary and above a kind of immunity has been provided for. Whether there can be a deprivation of such immunity by a retrospective operation of a judgment of the Court, in the context of Article 20 of the Constitution of India, is the moot question that arises for determination in the present case." 6. As the order of reference also briefly deals with the necessary facts and also the reasons for referring the issue to the Constitution Bench, it would be appropriate to reproduce the complete order dated 10.03.2016. It reads as follows: "1. A prosecution under the Prevention of Corruption Act, 1988 was sought to be questioned by the respondent accused on the basis of the provisions contained in Section 6A(1) of the Delhi Special Police Establishment Act, 1946 which was brought in by an amendment in the year 2003. Section 6A(1) of the Delhi Special Police Establishment Act, 1946 is in the following terms: "6A. Approval of Central Government to conduct inquiry or investigation.-(1) The Delhi Special Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and subjection to a penalty greater than that which might have been inflicted under the law in force at the time of commission of offence or it also prohibits legislation which aggravates the degree of crime or makes it possible for him to receive the same punishment under the new law as could have been imposed under the prior law or deprives the accused of any substantial right or immunity possessed at the time of the commission of the offence charged is a moot point to be debated. (underlining is ours) *** 21. However, as the interpretation of Article 20 as to its scope and ambit is involved in these proceedings, we refer the question formulated in para 15 of this order to a larger Bench for consideration." However, the Constitution Bench in Transmission Corporation of A.P. versus Ch. Prabhakar and others [(2010) 15 SCC 200] declined to answer the question as in the meantime there were certain amendments to the statute in question and, therefore, the issues referred were understood to have become academic. The very same issues have been cropped up before us in the present proceedings. 6. We have considered it necessary to make the present reference for the reason that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not attract Article 20(1) of the Constitution. Article 20 of the Constitution applies only to those provisions of law in force, violation of which results in conviction and resultantly awarding sentence. Procedural issues like statutory protection during trial, a provision providing for a particular Court to try the offence would not have any bearing while invoking Article 20 of the Constitution. 10.2. Article 20 of the Constitution would have no applicability in determining whether the declaration made in the case of Subramanian Swamy (supra) would be prospective or retrospective. The protection provided under Article 20 of the Constitution against ex post facto law extends and confines only to conviction and sentence and would have no relevance for procedural aspects and also would not have any applicability to the powers exercised during the course of the investigation. He enlisted the following aspects in this respect: (a) Article 20 is limited in application wherein distinct offences are created subsequently; (b) The other aspect of Article 20 is debarring infliction of greater penalty, post commission of the offence; (c) Section 6A did not decriminalise PC Act offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s some positive public good and, therefore, the classification was held to be discriminatory and violative of Article 14 of the Constitution as it side-tracks the fundamental objects of the PC Act, 1988 to deal with corruption. 10.8. Shri Mehta commenting upon Section 6A of the DSPE Act enlisted the following short conclusions: (a) It is not a provision creating an offence or providing immunity from an offence under which anyone can be punished; (b) The said provision did not exempt applicability of anti-corruption laws to officers above the rank of Joint Secretary; (c) It was a mere executive safety mechanism; It was a mere initial protective net of a particular kind which this Hon'ble Court declared as unconstitutional; (d) The said provision did not seek to create individual rights or immunities rather was, as was the submission of the Union of India in Subramanian Swamy (supra), a provision which was aimed at protecting bona fide actions for ensuring honest decisions/advice in governmental functioning. (e) It was not aimed as an immunity or substantive exclusion from application of laws, rather was a preliminary check provided in order to ensure honest officials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Managing Director, ECIL, Hyderabad and Others Vs. B. Karunakar and Others [(1993) 4 SCC 727] for the proposition that prospective overruling is to be exercised as an exception in rare circumstances and such power should be seldom exercised. He has further placed reliance upon a judgment of this Court in the case of M.A. Murthy Vs. State of Karnataka and others [(2003) 7 SCC 517] for the proposition that if prospective overruling is not specifically provided in the decision, it would not be open for Courts in future to declare such a decision to be prospective in nature. If prospective applicability of a decision is not provided in the said decision, then it is presumed that it will have retrospective effect and declaration of any law as invalid would be unenforceable and nonexistent from the statute book from the time of its inception. The judgment in the case of Subramanian Swamy (supra) would, therefore, operate retrospectively and at least would be unenforceable ab initio. 10.13. The next submission is that the judgment in the case of Transmission Corporation of A.P. Vs. C.H. Prabhakar and Others [(2004) 5 SCC 551] would also not be of any help to the respondent as under the Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferring to the case of Subramanian Swamy (supra) it is submitted that there could be two situations prior to the judgment in the aforesaid case i.e. prior to May, 2014; (i) where evidence is already gathered as part of investigation or (ii) where evidence is not gathered because of the prohibition contained in Section 6A of the DSPE Act. Placing reliance upon a judgment of this Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi [(1955) 1 SCR 1150], wherein, while answering the first question, this Court held that the prohibition contained in Section 5(4) of the Prevention of Corruption Act, 1947 [In short, "PC Act, 1947"] was mandatory in nature whereas while answering the second question, this Court held that trial following an investigation conducted in violation of Section 5(4) of the PC Act, 1947 would not be illegal. It was submitted that where a Magistrate has already taken cognizance upon an investigation, conducted without the approval under Section 6A of the DSPE Act, the Court can act on evidence collected during such investigation and the proceedings would not be vitiated in the absence of any prejudice both actual and pleaded with respect to such evidence. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India was not a party to the proceedings, however, pursuant to an order dated 27.04.2012 passed in this appeal, the Union of India was made a party by the Court suo moto. The affidavit filed by Union of India, served upon the respondent on 25.02.2013 and which is part of the record, categorically stated that CBI does not have jurisdiction to initiate investigation against the respondent without prior approval of the Central Government. It further stated that the view taken by the learned Single Judge of the Delhi High Court in the impugned order dated 05.10.2006 is correct and effectively captures the purpose of enactment of a provision. It further took stand in paragraph 23 that purport of Section 6A of the DSPE Act is to accord meaningful protection to the persons imbued with decision making powers from frivolous or motivated investigation by providing a screening mechanism. Reference was also made to the directions issued by this Court in the case of Vineet Narain (supra) to the effect that Central Government shall remain answerable for the CBI's functioning and shall further take all measures necessary to ensure that CBI functions effectively, efficiently and is viewed as a no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force for a long time and is subsequently repealed, the same would not affect the rights which had accrued during the existence of such law. 12.8. It is also his submission that if, while declaring the statute to be invalid, the Court does not expressly incorporate for its retrospective application, it shall be deemed to apply prospectively. Reliance was placed upon the following judgments: (1) Keshavan Madhava Menon (supra); (2) Ashok Kumar Gupta and Another Vs. State of U.P. and Others [(1997) 5 SCC 201]; (3) Kaiser Aluminium and Chemical Corporation Vs. Bonjorno [494 US 827 (1990)]; (4) Assistant Excise Commissioner, Kottayam and Others Vs. Esthappan Cherian and Another [Civil Appeal No. 5815 of 2009 by Supreme Court of India vide order dated 06.09.2021] 12.9. It was next submitted that appeal of the CBI has been filed primarily on two grounds; that Section 6A(1) of the DSPE Act is not mandatory; and that Section 6A(2) would apply. He also submitted that no ground has been taken that Section 6A(1) is unconstitutional or invalid, as such, CBI cannot argue this point. 12.10. Lastly, it is submitted that not only Article 20, but also Article 21 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive amendment or by a judgment declaring such immunity invalid. 13.4. Section 6A was declared ultra vires Article 14 of the Constitution and, as such, under Article 13(2) of the Constitution it is void to the extent of the contravention. The argument further proceeds to elaborate the meaning and scope of the word "void" which came up for consideration in a number of cases right from 1951 to 1963. Dr. Datar has very fairly submitted that this Court has held that a provision which is held to be 'void' would be a "nullity", "still born" or "dead" as if it was never in existence at all. 13.5 It was next submitted that a law which has been declared to be unconstitutional could only mean that such law becomes inoperative or ineffective, once declared and not before that. The submission is that a law declared unconstitutional cannot be treated as void ab initio for the following reasons: (a) As there is a presumption of constitutionality till a law is declared to contravene the provisions of Part-III or other constitutional limitations, it remains valid; (b) The expression "to the extent of contravention" implies that there has to be a judicial declaration of contravention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g provisions in different statutes to continue to extend such protection to Government officials from unnecessary and frivolous criminal prosecutions. 13.10. It was lastly submitted that the doctrines of prospective overruling and the Blackstonian theory do not apply in the present case as no previous decision has been overruled. This is a case of declaring a law as unconstitutional being violative of Part-III of the Constitution. 13.11. In the facts and circumstances, it was submitted that the appeal of Manjit Singh Bali deserves to be allowed. 13.12. Shri Amit Desai, learned Senior Counsel also appearing for the same party made a few submissions. He placed reliance upon two judgments of this Court, namely (i) Mohan Lal Vs. State of Punjab [(2018) 17 SCC 627] and, (ii) Varinder Kumar Vs. State of Himachal Pradesh [(2020) 3 SCC 321]. 14. Having considered the submissions advanced on behalf of the parties, the following questions require consideration: (i) Whether Section 6A of the DSPE Act is part of procedure or it introduces a conviction or sentence? (ii) Whether Article 20(1) of the Constitution will have any bearing or relevance in the context of declaration of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up any enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE. (ii) All cases referred to the Administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference. In respect of the officers of the rank of Secretary or Principal Secretary to Government, such references should be made by the Director, CBI to the Cabinet Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members. The Committee should dispose of all such references preferably within two months from the date of receipt of such a reference by the Cabinet Secretary. (iii) When there is any difference of opinion between the Director, CBI and the Secretary of the Administrative Ministry/Department in respect of an officer up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).]" 17. This Section remained on the statute book for a period of more than ten years till the judgment in the case of Subramanian Swamy (supra) was delivered on 06.05.2014, which held it to be unconstitutional as being violative of Article 14 of Part-III of the Constitution. 18. The Parliament again inserted Section 17A in the PC Act, 1988 w.e.f. 26.07.2018. This provision has continued to remain in the statute book. It also provided for sanction before prosecution but without any classification of Government servants. All Government servants of whatever category, class, or level, are provided protection under Section 17A of the PC Act, 1988. The said provision is reproduced hereunder: 17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.-- No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the PC Act, 1988. Sub-Section (2) takes away the protection to the Government servant of the category defined in sub-Section (1) where arrest of a person is to be made on the spot on the charge of accepting or attempting to accept any gratification. 21. The Constitution Bench held that Section 6A(1) which required approval of the Central Government to conduct any enquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 to be invalid and unconstitutional and in violation of Article 14 of the Constitution. As a necessary corollary, it was further declared that the provision contained in Section 26(c) of Act No. 45 of 2003 introducing the above provision was also invalid. 22. The reference order dated 10.03.2016 required the retrospective application of the declaration by the Constitution Bench in Subramanian Swamy (supra) to be determined in the context of Article 20 of the Constitution. It would, therefore, be necessary to briefly discuss the scope of Article 20 and whether or not it would have any applicability in the contex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited. Trial under a procedure different from the one when at the time of commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation of sub-article (1) to Article 20 of the Constitution. It may be different, if the procedure or the trial is challengeable on account of discrimination under Article 14 of the Constitution or violation of any other fundamental right. 28. The right under first part of sub-article (1) to Article 20 of the Constitution is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate. The Constitution bench of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [(1953) 2 SCC 111], highlighted the principle underlying the prohibition by relying upon judgment of Willes, J. in Phillips v. Eyre [(1870) LR 6 QB 1 at pp. 23 and 25] and of the United States Supreme Court in Calder v. Bull [1 L Ed 648 at p. 649 : 3 US (3 Dall) 386 (1798)], to hold that it would be highly unjust, unfair and in viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 551. The latter judgment refers to several judgments.] 31. In view of the limited scope of the present controversy, we need not examine in greater detail sub-article (1) of Article 20. The reason why we have referred to the constitutional guarantee, which protects the citizens and persons from retrospective ex post facto laws, is to affirm that our decision in no way dilutes the constitutional mandate. The issue involved in the present reference relates to a matter of procedure, and not the two aspects covered by sub-article (1) of Article 20 of the Constitution. 32. Learned counsel for the parties have also briefly referred to Section 6 of the General Clauses Act, 1897. It would be appropriate to reproduce the said provision hereunder: "Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entence being introduced subsequent to the offence. The Constitution Bench held as follows with regard to the above issue: "9. In this context it is necessary to notice that what is prohibited under Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except insofar as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved. (emphasis supplied)" (iii) With respect to the second aspect also, the Constitution Bench did not find favour with the appellant and held that the State of Vindhya Pradesh had the power to frame laws being applied retrospectively and also for the reason that the said offence was already in existence and in force in the said state in 1948 itself. (iv) The Constitution Bench in the case of S.K. Ghosh (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present appeal have nothing to do with conviction or punishment and therefore Article 20(1) in our opinion can have no application to the orders passed under Section 13(3). (emphasis supplied)" (vii) In the case of Rattan Lal (supra), a three-Judge Bench of this Court by a majority of 2:1 was of the view that a law made post the offence which neither creates an offence nor enhances the sentence but was a beneficial legislation for reformation of first-time offenders, the benefit could be extended to such an accused convicted for the first time, i.e., under the Probation of Offenders Act 1958, and that Article 20(1) of the Constitution will have no application. (viii) The Constitution Bench in the case of Sukumar Pyne (supra), relying upon the earlier Constitution Bench in Rao Shiv Bahadur Singh (supra), further laid down that there is no principle underlying Article 20(1) of the Constitution which makes a right to any course of procedure a vested right. The relevant extract from the judgment is reproduced hereunder: "20. ...As observed by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh a person accused of the commission of an offence has no vested right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. Mr. Garg, the learned Counsel, submitted that by amending procedure drastically and giving it retrospective effect, a new offence may be created retrospectively. It was contended that by shifting the burden of proof as provided for in Section 5(3) of the Prevention of Corruption Act, 1947, a new offence is created. It is unnecessary for us to consider the larger question as to whether in certain circumstances giving retrospective effect to the procedure may amount to creation of an offence retrospectively. In the present case the old procedure is revived and no new procedure is given retrospective effect. The procedure given effect to is not of such a nature as to result in the creation of a new offence. (emphasis supplied)" (x) In the case of Soni Devrajbhai Babubhai (supra), the facts were that on 13.08.1986, the daughter of the appellant therein had died. Subsequently, Section 304-B of the IPC was introduced in the Indian Penal Code through Amending Act No. 43 of 1986, which came into effect on November 19, 1986. The accused (respondent in the appeal therein) raised a plea that he could not be charged or tried under Section 304-B of the IPC as, at the time of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t into conviction or acquittal and/or sentence. Accordingly, the argument of Mr. Datar cannot be accepted. Change in procedure post the offence not attracting Article 20(1) of Constitution has been the settled law since 1953 enunciated in the Constitution Bench judgment of Rao Shiv Bahadur Singh (supra). 36. For the reasons recorded above, it can be safely concluded that Article 20(1) of the Constitution has no applicability either to the validity or invalidity of Section 6A of the DSPE Act. Retrospective or Prospective application of the judgment in the case of Subramanian Swamy (supra) (Question No. 3). 37. The Constitution Bench in case of Subramanian Swamy (supra) declared Section 6A of the DSPE Act as unconstitutional on the ground that it violates Article 14 of the Constitution on account of the classification of the Government servants, to which the said provision was to apply. The invalidity of Section 6A of the DSPE Act is not on the basis of legislative incompetence or for any other constitutional violation. In Vineet Narain (supra) this Court had held that Single Directive No. 4.7(3) to be invalid and it was struck down on the ground that by an administrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it has been given different nomenclature such as 'non est', 'void ab initio' 'still born' and 'unenforceable'. 42. A brief reference to the case law on the point would be necessary at this stage. It may be worthwhile to mention that the earlier seven judge Bench and Constitution Bench judgments relate to Article 13(1) of the Constitution, dealing with pre-existing laws at the time of commencement of the Constitution. There are later judgments relating to Article 13(2) of the Constitution. However, reliance is placed upon the judgments on Article 13(1) while interpreting the word 'void' used in Article 13(2). (i) The facts in the case of Keshavan Madhava Menon (supra), was that a prosecution was launched against the appellant therein under the provision of the Indian Press (Emergency Powers) Act, 1931 [In short, "1931 Act"] for a publication issued without the necessary authority under Section 15(1) of the said Act, and as such, became an offence punishable under Section 18 (1) of the same Act. This prosecution had been launched in 1949 itself and registered as Case No. 1102/P of 1949. During the pendency of the said proceedings, the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights." However, Justice Fazal Ali was of the view that though there can be no doubt that Article 13(1) will have no retrospective operation and transactions which are past and closed, and rights which have already vested will remain untouched. However, with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings not begun, or pending at the time of enforcement of the Constitution and not yet prosecuted to a final judgment, the answer to this question would be that the law which has been declared by the Constitution to be completely ineffectual, can no longer be applied. To be precise, paragraph no. 63 of the report from SCC Online referred has been reproduced hereunder: "There can be no doubt that Article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... topic not within the competence of the legislature and a legislation within its competence but violative of constitutional limitations have both the same reckoning in a court of law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes? This question has been the subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the view that while a law on a matter not within the competence of the legislature is a nullity, a law on a topic within its competence but repugnant to the constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition. A constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other Constitutions; nor can we appreciate the argument that the words " any law " in the second line of Art. 13(2) posits the survival of the law made in the teeth of such prohibition. It is said that a law can come into existence only when it is made and therefore any law made in contravention of that clause presupposes that the law made is not a nullity. This argument may be subtle but is not sound. The words " any law " in that clause can only mean an Act passed or made factually, notwithstanding the prohibition. The result of such contravention is stated in that clause. A plain reading of the clause indicates, without any reasonable doubt, that the prohibition goes to the root of the matter and limits the State's power to make law; the law made in spite of the prohibition is a still- born law. (emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconsistency with the fundamental rights. Besides there could not be any question of an existing law being void ab initio on account of the inconsistency with Art. 13(1), as they were passed by competent legislatures at the time when they were enacted. Therefore, it was pointed out that the effect of Art. 13(1) with respect to existing laws insofar as they were unconstitutional was only that it nullified them, and made them "'ineffectual and nugatory and devoid of any legal force or binding effect". The meaning of the word "void" for all practical purposes is the same in Art. 13(1) as in Art. 13(2), namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force or binding effect. But the pre-Constitution laws could not become void from their inception on account of the application of Art. 13(1) The meaning of the word ','void" in Art. 13 (2) is also the same viz., that the laws are ineffectual and nugatory and devoid of any legal force on binding effect, if they contravene Art. 13(2). But there is one vital difference between pre-Constitution and post-Constitution laws in this matter. The voidness of the pre-Constitution laws is. not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are declared void, to the extent of their inconsistency with fundamental rights. Had there been no such declaration, these laws would have continued to operate. Therefore, in the case of pre- Constitution laws what an amendment to the Constitution does is to remove the shadow cast on it by this declaration. The law thus revives. However, in the case of the second clause, applicable to post Constitution laws, the Constitution does not recognise their existence, having been made in defiance of a prohibition to make them. Such defiance makes the law enacted void. In their case therefore there can be no revival by an amendment of the Constitution, MO though the bar to make the law is removed, so far as the period after the amendment is concerned. In the case of post- Constitution laws, it would be hardly appropriate to distinguish between laws which are wholly void-as for instance, those which contravene Art. 31-and those which are substantially void but partly valid, as for instance, laws contravening Art. 19. Theoretically, the laws falling under the latter category may be valid qua non-citizens; but that is a wholly unrealistic consideration and it seems to us that such nationally p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, is void" ab initio. In Behram Khurshid Pesikaka v. State of Bombay, it was held by a constitution bench of this Court that the law-making power of the State is restricted by a written fundamental law and any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus, a nullity. A declaration of unconstitutionality brought about by lack of legislative power as well as a declaration of unconstitutionality brought about by reason of abridgement of fundamental rights goes to the root of the power itself, making the law void in its inception. This Court in Deep Chand v. State of Uttar Pradesh & Ors. summarised the following propositions: "(a) Whether the Constitution affirmatively confers power on the legislature to make laws subject-wise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislative power; (b) The Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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