CITATION: 128 AIR 228 SCR (1951)
BENCH: HIRALAL J. KANIA (CJ), FAZAL ALI, SAIYID, SASTRI, M. PATANJALI, MAHAJAN, MEHR CHAND, DAS, S.R. & AIYAR, N. C. MUKHERJEE, B.K.
APPELLANTS: KESHAVAN MADHAVA MENON
RESPONDENTS: THE STATE OF BOMBAY
DECIDED ON: 22nd JANUARY, 1951
This case is of the time when India, had newly gotten introduced with its Constitution. During this time, many cases, including, the infamous case of Kesavananda Bharati were being increasingly filed in courts; all in relation to the interpretation of the constitutional provisions. The statutes were being challenged, which gave rise to one of the major dilemmas of the time; as to the continuance of the pre-existing laws. Majorly, the pre-existing laws had been created by alien governments, aiming to suppress the Indians and increase their control. On 26th January 1950; India adopted its Constitution and guaranteed fundamental rights to all its people.
According to our Constitution, no pre-existing law was to be declared void wholly. The concept of void, here, was only to the extent of the inconsistency of the law. A question had arisen that whether the fundamental rights, which we had been guaranteed to, have a prospective effect or retrospective effect. This question was very effectively dealt with in the particular case of Keshavan Madhava Menon v. the State of Bombay.
Since this is the very first case that dealt with the effect of our fundamental rights, it acts as a landmark precedent to date. In this case, the judges had a difference of opinions but all of them had an agreement of mind in respect to the prospective effect of the fundamental rights.
FACTS OF THE CASE
Keshavan Madhava Menon, the appellant, was the secretary of ‘People’s Publishing House Ltd.’. This co. was registered as per the ‘Indian Companies Act’. The co. in Bombay, published a pamphlet, in September 1949. It was under the name ‘Railway Mazdooran Ke Khilaf Nayi Saazish’.
The contention laid down by the defense was that an offense had been committed by Keshavan Madhava Menon, since, before publishing the pamphlet, he was required to take permission as per the Indian Press (Emergency Powers) Act, 1931; but he didn’t do so. Hence, prosecution proceedings were commenced against Keshavan Menon.
Initially, the case was heard in the trial court with Keshavan being the petitioner wherein it was decided that this case includes a question of law and therefore, it should be dealt with in the High Court. Meanwhile, the Constitution of India came into force on the 26th January 1950, and on 3rd March 1950, the petitioner submitted a written statement, that S. 2(6), that defined a newssheet, and Sections 15 & 18 of Indian Press (Emergency Powers) Act, 1931 were ultra vires, as they were said to violate Article 19(1)(a) & Article 13 of the Constitution. Hence, the hearing of the case didn’t go further until the High Court of Bombay had looked into this.
On 7th March 1950, another petition was filed in the High Court of Bombay through Article 228 of the Indian Constitution. In addition to this, the petitioner prayed to the court that S.15 & S. 18 must be declared void which is to be read with S. 2(6) & S. 10, thus creating liability for restrictive measures for citizens. The reason given behind this was that these sections were ultra-vires of Article 19(1) (a) and on 23rd March 1950, a charge was framed by the Chief Presidency Magistrate.
ARGUMENTS ADVANCED BY THE PETITIONERS
- As per S.2 (1) of the Indian Press Act, 1931 and the Registration of Books Act (XX of 1867), the published pamphlet was published as a book.
- The Indian Press Act, which was enacted by the British Government in 1931, was a restrictive law. It had been introduced to suppress the liberty of Indians and their voice.
- With the introduction of the Indian Constitution, the people of India have been guaranteed certain Fundamental Rights.
- According to Article 13 of the Constitution, all laws will be held to be void when inconsistent with the Fundamental Rights and this included existing laws too.
Furthermore, it was contended by the counsel that declaring the inconsistent law to be void ab initio wasn’t necessary. Reopening all past & closed transactions related to this was also not required. But it was also argued here that these inconsistent laws must not be used as a way to frame a charge on anyone or to punish any citizen. To differentiate between the two terms, ‘void’ & ‘repeal’, references were made to Articles 249 (3), 250, 357, 358, and 369 of the Indian Constitution. ‘From all of these points, it is clear that the pending proceedings of the case must be stopped as the law being applied is void.’
ARGUMENTS ADVANCED BY THE RESPONDENTS
1. The pamphlet published was a newssheet as per the definition provided in S. 2(6) of Indian Press Act, 1931, and to publish this pamphlet, authority was required to be taken according to S. 15(1) of the same act. Having not done so, the petitioner had thus committed an offense under S. 18(1) of the act.
(a) Whether S. 15(1) & S. 18(1), read with definitions provided in S. 2(6) & S. 2(10), of Indian Press (Emergency Powers) Act, 1931 were inconsistent with Articles 19(1) (a) & 19(2) of the Indian Constitution?
(b) Even if these sections were inconsistent with the proceedings that were done under S. 18(1) of the Indian Press Act 1931, can they be proceeded with even after the commencement of the Constitution?
JUDGMENT OF THE COURT IN BRIEF
The HC of Bombay, in this case, held that the term ‘void’ in Article 13(1) of the Indian Constitution refers to the meaning ‘repealed’, and this attracts S.6 of General Clauses Act along with that of the Constitution’s Article 367. The court said that the proceedings which took place before the advent of the Indian Constitution will not be affected. The petition, as filed by the petitioner, was thereby dismissed.
The decision was taken by the HC of Bombay in favor of the respondents and an appeal to the same was filed in the Supreme Court of India. The SC upheld the decision taken by the HC of Bombay and gave a judgment in favor of the respondents once again. The court interpreted Article 13 and held that a law can be held void only to the extent of its inconsistency. All laws will have a prospective effect until and unless it is made retrospective expressly. The language of this Article doesn’t permit retrospective effect and doesn’t declare such laws to be void ab initio.
So, as the fundamental rights got introduced with the Constitution, the pre-existing laws will be (to the required extent) void from that date i.e. 26th January 1950; not before. But this doesn’t imply that a person will not be prosecuted or punished for any offense done before the advent of the Constitution. In this case, it was held that at the time of the offense, the appellant didn’t have the right of freedom of speech [Article 19(1) (a)]. Hence, Article 13 was held to not be applicable in this case.
This case is a landmark judgment since it was the first case where the interpretation of S.13(1) of the Constitution of India was done and it was also decided as to whether the fundamental rights would have a retrospection effect or a prospective effect. The judges did have a difference in their opinions, but at one point they had all landed on a singular decision. They had the same view on the fundamental rights having only a prospective effect, and not retrospective. The judgment clarified that pre-existing laws will not be struck down only due to the reason that they were created before the commencement of the Indian Constitution.
Every point was to be taken into consideration before declaring any law to be void. If any law is found to be inconsistent with any provisions of the Indian Constitution, then declaring the whole statute of that law to be invalid and unconstitutional is not required. Only the particular part or only to the extent to which the inconsistency existed, had to be declared void. But it was also held that those inconsistencies will not be assumed from the initial stage i.e. these laws will not be held void ab initio. They will be assumed to be invalid & unconstitutional from the date of the enactment of the Constitution of India.
This case has not been overruled till the present day and is held to be an important precedent for reference. Numerous cases have been decided to take this case’s ratio as a base. Since it is the main case to manage the impact of our fundamental rights, the succeeding enactments were likewise made keeping into the ratio and obiter of this judgment into thought. And despite the judges having varied opinions, the final judgment was unanimous. This development of Article 13 has proved to be effectual and the idea of judicial review, as discussed in this case, is acknowledged as a basic structure of the Indian Constitution.
The court gave a judgment in favor of the respondents as the Constitution doesn’t have any effect on pre-existing laws before the date of its enactment. Hence, the fundamental right of freedom of speech and expression, of the petitioner, wasn’t violated here. The proceedings taken up were in order as the appellant was required to take authority for publishing the pamphlet which he didn’t and hence, he was to be held liable under the Indian Press Act, 1931. At the time when all this had happened, the Constitution hadn’t come into force, it was thus absurd that fundamental rights have been said to be violated when it was not even granted.
It can hence be concluded that this case has proved to be a turning point in the field of law. It has proved to be of great importance because if the Article had not been interpreted so, then it could have been a major problem for all upcoming cases.
 Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., A.I.R. 1973 S.C. 1461.
 R.M.D.C. v. Union of India, 1975 A.I.R. 628.
 Keshavan Madhava Menon v. The State of Bombay, 1951 A.I.R. 128.