Deep Chand Vs. The State of Uttar Pradesh & Ors [1959] INSC 3 (15 January 1959)
SUBBARAO, K.
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
WANCHOO, K.N.
CITATION: 1959 AIR 648 1959 SCR Supl. (2) 8
CITATOR INFO :
R 1960 SC1080 (32) R 1962 SC 594 (16) RF 1962 SC 981 (14) RF 1962 SC1517 (22) E 1962 SC1753 (15,16) R 1963 SC1019 (18) R 1963 SC1531 (20) R 1963 SC1561 (11) RF 1964 SC 381 (53) R 1966 SC1780 (5) RF 1967 SC1091 (11) D 1967 SC1480 (13,21) RF 1967 SC1643 (110) D 1969 SC1225 (7,8) RF 1972 SC 425 (12) R 1972 SC1738 (15,21) RF 1972 SC2205 (26) RF 1973 SC1461 (915) RF 1974 SC1300 (33,41) RF 1974 SC1480 (10) RF 1979 SC 25 (40) R 1979 SC 898 (31) R 1979 SC 984 (11) R 1983 SC1019 (65,71) R 1984 SC1260 (14) RF 1988 SC 329 (13) R 1990 SC 104 (8) R 1990 SC 761 (4) RF 1990 SC2072 (11,16,31,44) R 1992 SC1310 (8,15)
ACT:
Transport Service-Scheme of nationalisation formulated under State enactment of Amendment of Central Act-Effect Repugnancy--Constitutional validity of State enactment-Uttar Pradesh Transport Service (Development) Act (IX of 1955), s. 11(5)-Motor Vehicles (Amendment) Act, 1956 (100 of 1956), Ch.IV A--General Clauses Act, 1897 (10 of 1897), s. 6Constitution of India-Articles 13, 31, 245, 246, 254.
HEADNOTE:
These appeals impugned the constitutionality of the Uttar Pradesh Transport Service (Development) Act, 1955 (U. P. IX Of 1955), passed by the State Legislature after obtaining the assent of the President, and the validity of the scheme of nationalisation framed and the notifications issued by the State Government under it. The appellants as permit holders under the Motor Vehicles Act, 1939, were plying buses on different routes in Uttar Pradesh along with buses owned by the State Government. The State Government issued a notification under S. 3 Of the impugned Act directing that the said routes along with others should be exclusively served by the State buses, and followed up that notification by others under ss4 and 8 of the Act. The appellants moved the High Court under Art. 226 of the Constitution challenging the validity of the said Act and the notifications there under. The High Court rejected their petitions and thereafter came into force the Motor Vehicles (Amendment) Act (100 Of 1956), inserting Ch. IVA into the Act, which provided for nationalisation of transport services. The contentions-raised on behalf of the appellants were,-(1) that the passing of the Amending Act made the impugned Act wholly void under Art. 254(1) Of the Constitution, (2) that the scheme framed under the impugned Act fell within the purview of s. 68B of the Amending Act and ceased to be operative and (3) that even 'assuming that the impugned Act was valid in so far as the scheme was concerned, it violated Art. 31 as it stood before the Constitution (Fourth Amendment) Act, 1955. A further contention on the basis of the proviso to Art. 254(2) was that the impugned Act stood wholly repealed by the Amending Act, s. 68B of the latter excluding the operation of the General Clauses Act. It was contended, inter alia, on behalf of the State that the amendment of Art. 31 by the Constitution (Fourth Amendment) Act, 1955, having removed, before the scheme under the impugned Act had 9 yet been framed, the constitutional limitation which that Article had imposed on the Legislature when it passed the impugned Act, had the effect of validating that Act passed by it at a time when it was subject to the limitation.
Held, (per curiam), that the Uttar Pradesh Transport Service (Development) Act, 1955, did not, on the passing of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956), become wholly void under Art. 254(1) Of the Constitution but continued to be a valid and subsisting law supporting the scheme already framed under the U.P. Act. Even assuming that the Amending Act had the effect, under Art. 254(2), of repealing the State Act, such repeal could not nullify the scheme already framed under that Act, for the provisions of s. 6 of the General Clauses Act would operate to save it.
Nor could it be said, having regard to the provisions of the impugned Act and particularly s. II(5) thereof, that it offended Art. 31 of the Constitution as it stood before the Constitution (Fourth Amendment) Act, 1955, by failing to provide for the payment of adequate compensation.
Per Das, C.J., and Sinha J.-There was no reason why the doctrine of eclipse as explained in Bhikaji Narain Dhakras v. The State of Madhya Pradesh, [1955] 2 S.C.R. 589, could not also apply to a post-Constitution law that infringed a fundamental right conferred on citizens alone. Such a law, though shadowed and rendered ineffective by the fundamental right so far as the citizens were concerned, would remain effective so far as noncitizens were concerned. The moment the shadow was removed by a constitutional amendment, the law would apply to citizens without re-enactment.
John M. Wilkerson v. Charles A. Rahrer, (1891) 140 U.S. 545;
35 L. Ed.,572 and Bhikaji Nayain Dhakras v. The State of Madhya Pradesh, [1955] 2 S.C.R. 589, referred to.
The question whether a post-Constitution law that infringed a fundamental right guaranteed to all persons, citizens or noncitizens' would be subject to that doctrine should, however, be left open.
Held, (per Bhagwati, Subba Rao and Wanchoo, jj.), that it was apparent from the provisions of Arts. 254, 246 and 13 of the Constitution, read together, that the power of Parliament and the -State Legislature to make laws with regard to any of the matters enumerated in the relevant list in the Seventh Schedule was subject to the provisions of the Constitution including Art. 13. There was a clear distinction between the two clauses of Art. I3. Under cl. (1), pre-Constitution law subsisted except to the extent of its inconsistency with the provisions of Part III whereas under Cl. (2) any post-Constitution law contravening those provisions was a nullity from its inception to the extent of such contravention. The words "any law" in the second line of 2 Cl. (2) meant an. Act factually passed in spite of the prohibition contained therein, and did not pre-suppose that the law made was not a nullity. That prohibition went to the root and limited the State's power of legislation and law made in spite of it was a still-born one.
In construing the constitutional provisions relating to the powers of the legislature embodied in Arts. 245 and 13(2) of the Constitution, no distinction should be made as between an affirmative and a negative provision, for both are limitations on that power.
K. C. Gajapati Narayan Deo v. The State of Orissa, [1954] S.C.R. 1, referred to.
A distinction, well-recognised in judicial decisions, had, however, to be made in judging the effect of law made in transgression of the limits fixed by Arts. 245 and I3(2), between an Act that was void from its inception and one that, though valid when made, was rendered unconstitutional later on. On that distinction was based the principle that an after-acquired power could not validate a statute and a law validly made could take effect when the obstruction was removed.
A review of the relevant authorities and judicial decisions clearly established, (1) that affirmative conferment of power to make laws subject-wise and the negative prohibition from infringing any fundamental rights were but two,,aspects of want of legislative power, (2) that by expressly making the power to legislate on the entries in the Seventh Schedule subject to other provisions of the Constitution, that power was subjected to the limitations laid down in Part III of the Constitution, (3) that, therefore, a law in derogation or in excess of such power would be void ab initio either wholly or to the extent of the contravention and that (4) the doctrine of eclipse could be invoked only in the case of a law that was valid when made but was rendered invalid by a supervening constitutional inconsistency.
Newberry v. United State, (1912) 265 U.S. 232; 65 L. Ed. 9I3; John M. Wilkerson v. Charyles A. Rahrer, (1891) 140 U. S. 545; 35 L. Ed. 572; Carter v. Egg and Egg Pulp Marketing Board, (1942) 66 C.L.R. 557; Keshavan Madhava Menon v. The State of Bombay, [1951] S.C.R. 228; Behram Khurshed Pesikaka v. The State Of Bombay, [1955) 1 S.C.R. 589; Saghir Ahmed v. The State of U. P. [1955] 1 S.C.R. 707; Ram Chandra Balai v. State of Orissa, [1956] S.C.R. 28 and Pannalal Binjraj v. Union of India, [1957] S.C.R. 233, referred to and discussed.
The tests of repugnancy between two statutes, one passed by the Parliament and the other by the State Legislature, were, (1) whether there was a direct conflict between them, (2) whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature, and (3) whether both the laws occupied the same field.
A comparison of the provisions of the two Acts indicated 11 that both were intended to operate in respect of the same subject matter and the same field but only in respect of the schemes initiated after the Amending Act had come into force, the latter Act having no retrospective effect. The State Act must, therefore, yield place to the Central Act to that extent and become void only in respect of schemes framed under the Central Act.
Keshavan Madhava Menon v. The State of Bombay, [1951] S.C.R. 228, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 380 to 389, 391 to 399, 401, 429 and 431 to 434 of 1958.
Appeals from the judgment and decree dated December 19, 1956, of the Allahabad High Court in Civil Misc. Writs Nos.
1574, 1575, 1576, 1577, 1578, 1579,1444,1584,1586,1589, 1631, 1632, 1634, 1635, 1636,1694, 1695, 1697, 1704, 1707, 3726, 1647, 1948 and 1949 and 1956.
M. K. Nambiyar, Shyam Nath Kacker, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellants (in C. As. Nos. 380-385, 387-389, 391-399 and 401 of 1958).
S.N.Kacker and J. B. Dadachanji, for the appellant (in C. A. No. 386/58).
Naunit Lal, for the appellants (in C. As. Nos. 429 & 431434/58).
K. B. Asthana & G. N. Dikshit, for the respondents.
1959. January 15. The judgment of Das, C. J., and Sinha, J., was delivered by Das, C. J. The judgment of Bhagwati, Subba Rao and Wanchoo, JJ., was delivered by Subba Rao, J.
DAS, C. J.-We have had the advantage of perusing the judgment prepared by our learned Brother Subba Rao and 'we agree with the order proposed by him, namely, that all the above appeals should be dismissed with costs, although we do not subscribe to all the reasons advanced by him.
The relevant facts and the several points raised by learned counsel for the appellants and the petitioners in support of the appeals have been fully set out in the judgment which our learned Brother will presently deliver and it is not necessary for us to set out the 12 same here. Without committing ourselves to all the reasons adopted by our learned Brother, we agree with his following conclusions, namely, (1) that the Uttar Pradesh Transport Service (Development) Act, 1955 (Act IX of 1955), hereinafter referred to as the U. P. Act, did -not, on the passing of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956), hereinafter referred to as the Central Act, become wholly void under Art. 254(1) of the Constitution but continued to be a valid and subsisting law supporting the scheme already framed under the U. P. Act; (2) that, even if the Central Act be construed as amounting, under Art.
254(2), to a repeal of the U. P. Act, such repeal did not destroy or efface the scheme already framed under the U. P. Act, for the provisions of s. 6 of the General Clauses Act saved the same; (3) that the U. P. Act did not offend the provisions of Art. 31 of the Constitution, as it stood before the Constitution (4th Amendment) Act, 1955, for. the U. P. Act and in particular s. 11(5) thereof provided for the payment of adequate compensation. These findings are quite sufficient to dispose of the points urged by Mr. Nambiyar and Mr. Naunit Lal in support of the claims and contentions of their respective clients.
In view of the aforesaid finding that the U. P. Act did not infringe the fundamental rights guaranteed by Art. 31, it is wholly unnecessary to discuss the following questions, namely, (a) whether the provisions of 'Part III of the Constitution enshrining the fundamental rights are mere checks or limitations on the legislative competency conferred on Parliament and the State Legislatures by Arts.
245 and 246 read with the relevant entries in the Lists in the Seventh Schedule to the Constitution or are an integral part of the provisions defining, prescribing and conferring the legislative competency itself and (b) whether the doctrine of eclipse is applicable only to pre-Constitution laws or can apply also to any post-Constitution law which falls under Art. 13(2) of the Constitution. As, however, our learned Brother has thought fit to embark upon a discussion of these questions, we desire to guard ourselves against being understood as 13 accepting or acquiescing in the conclusion that the doctrine of eclipse cannot apply to any post-Constitution law. A post-Constitution law may infringe either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non-citizen. In the first case the law will not stand in the way of the exercise by the citizens of that fundamental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite effective as regards non-,citizens. In such a case the fundamental right will, qua the citizens, throw a shadow on the law which will nevertheless be on the Statute Book as a valid law binding on non-citizens and if the shadow is removed by a constitutional ,amendment, the law will immediately be applicable even to the citizens without being re-enacted. The decision in John M. Wilkerson v. Charles A. Rahrer (1) cited by our learned Brother is squarely in point. In other words the doctrine of eclipse as explained by this Court in Bhikaji Narain Dhakras v. The State of Madhya Pradesh (2) also applies to a postConstitution law of this kind. Whether a post-Constitution law of the other kind, namely, which infringes a fundamental right guaranteed to all persons, irrespective of whether they are citizens or not, and which, therefore, can have no operation at all when it is enacted, is to be regarded as a still born law as if it had not been enacted at all and, therefore, not subject to the doctrine of eclipse is a matter which may be open to discussion. On the findings arrived at in this case, however, a discussion of these aspects of the matter do not call for a considered opinion and we reserve our right to deal with the same if and when it becomes actually necessary to do so.
SUBBA RAO, J.-These twenty-five appeals are by certificate under Arts. 132 and 133 of the Constitution granted by the High Court of Judicature at Allahabad and raise the question of the validity of the scheme of nationalization of State Transport Service formulated by the State Government and the consequential orders made by it.
(1) (1891) 140 U.S. 545; 35 L, Ed. 572, (2) [1955] 2 S.C.R.
14 The said appeals arise out Writ Petitions filed by he appellants in the Allahabad High Court challenging the validity of the U. P. Transport Services (Development) Act of 1955, being U. P. Act No. IX of 1955 (hereinafter referred to as the U. P. Act), and the notifications issued thereunder. All the appeals were consolidated by order of the High Court.
The appellants have been carrying on business as stage carriage operators for a considerable number of years on different routes in Uttar Pradesh under valid, permits issued under the Motor Vehicles Act, 1939, along with buses owned by Government. The U. P. Legislature, after obtaining the assent of the President on April 23, 1955, passed the U.
P. Act and duly published it on April 24, 1955. Under s. 3 of the U. P. Act, the Government issued a notification dated May 17, 1955, where under it was directed that the aforesaid routes along with others should be exclusively served by the stage carriages of the Government and the private stage carriages should be excluded from those routes. On November 12, 1955, the State Government published the notification under s. 4 of the U. P. Act formulating the scheme for the aforesaid routes among others. The appellants received notices under s. 5 of the U. P. Act requiring them to file objections, if any, to the said scheme; and after the objections were received, they were informed that they would be heard by a Board on January 2, 1956. On that date, the objections filed by the operators other than those of the Agra region were heard and the inquiry in regard to the Agra region was adjourned to January 7, 1956. It appears that the operators of the Agra region did not appear on the 7th.
The notification issued under s. 8 of the U. P. Act was published in the U. P. Gazette on June 23, 1956, and on June 25, 1956, the Secretary to the Regional Transport Authority, Agra, sent an order purported to have been issued by the Transport Commissioner to the operators, of the Agra region prohibiting them from plying their stage carriages on the routes and also informing them that their permits would be transferred to other routes. On July 7, 1956, a notice was sent to 15 filed Writ Petitions in the Allahabad High Court challenging the validity of the U. P. Act and the notifications issued there under.
The facts in Civil Appeal No. 429 of 1958 are slightly different from those in other appeals and they may be stated: The appellant's application for renewal of his permanent permit was rejected in 1953; but, on appeal, the State Transport Authority Tribunal allowed his appeal on September 6,1956, and directed his permit to be renewed for three years beginning from November 1, 1953. Pursuant to the order of the Tribunal, the appellant's pert-nit was renewed with effect from November 1, 1953, and it was made valid up to October 31, 1956. The scheme of nationalisation was initiated and finally approved between the date of the rejection of the appellant's application for renewal and the date when his appeal was allowed. The appellant applied on October 11, 1956, for the renewal of his permit and he was informed by the Road Transport Authority, Allahabad, that no action on his application, under reference was possible.
The appellant's contention, among others, was that the entire proceedings were taken behind his back and therefore the scheme was not binding on him.
The appellants in thirteen appeals, namely, Civil Appeals Nos. 387 to 389, 391 to 394, 396 to 399 and 401 and 429 were offered alternative routes. Though they tentatively accepted the offer, presumably on the ground that it was the lesser of the two evils, in fact they obtained stay as an interim arrangement and continued to operate on the old routes.
The appellants filed applications for permission to urge new grounds in the appeals, which were not taken before the High Court. The said grounds read :-(i) That by reason of the coming into operation of the Motor Vehicles (Amendment) Act, No. 100 of 1956, passed by Parliament and published in the Gazette of India Extraordinary dated 31st December, 1956, the impugned U. P.
Act No. IX of 1955 has become void.
(ii) That by reason of Article 254 of the Constitution of India, the said impugned Act No. IX of 1955, 16 being repugnant and inconsistent with the Central Act No.100 of 1956, has become void since the coming into operation of the aforesaid Act No. 100 of 1956 ". The judgment of the Allahabad High Court, which is the subject-matter of these appeals, was delivered on December 19, 1956. The Amending Act of 1956 was published on December 31, 1956. It is therefore manifest that the appellants could not have raised the aforesaid grounds before the High Court. Further, the grounds raise only a pure question of law not dependent upon the elucidation of any further facts. In the circumstances, we thought it to be a fit case for allowing the appellants to raise the new grounds and we accordingly gave them the permission.
Mr. M. K. Nambiar, appearing for some of the appellants, raised before us the following points: (i) The Motor Vehicles (Amendment) Act (100 of 1956) passed by, the Parliament is wholly repugnant to the provisions of the U. P Act and therefore the latter became void under the provisions of Article 254(1) of the Constitution ; with the result that, at the present time, there is no valid law where under the Government can prohibit the appellants from exercising their fundamental right under the Constitution, namely, to carry on their business of motor transport; (ii) the scheme framed under the Act, being one made to operate in future and from day to day, is an instrument within the meaning of s. 68B of the Amending Act, and therefore the provisions of the Amending Act would prevail over those of the scheme, and after the Amending Act came into force, it would have no operative force; and (iii) even if the U. P. Act was valid and continued to be in force in regard to the scheme framed thereunder, it would offend the provisions of Art. 31 of the Constitution, as it was before the Constitution (Fourth Amendment) Act, 1955, as, though the State had acquired the appellant's interest in a commercial undertaking, no compensation for the said interest was given, as it should be under the said Article. The other learned -Counsel, who followed Mr. Nambiar, except Mr. Naunit Lal, adopted his argument. Mr. Naunit Lal, in addition to the argument 17 advanced by Mr. Nambiar in regard to the first point, based his contention on the proviso to Art. 254(2) of the Constitution rather than on Art. 254(1). He contended that by reason of the Amending Act,,, the U. P. Act was repealed in toto and, because of s. 68B of the Amending Act, the operation of the provisions of the General Clauses Act was excluded. In addition, he contended that in Appeal No. 429 of 1958, the scheme, in so far as it affected the appellant's route was bad inasmuch as no notice was given to him before the scheme was approved.
We shall proceed to consider the argument advanced by Mr. Nambiar in the order adopted by him; but before doing so, it would be convenient to dispose of the point raised by the learned Advocate General, for it goes to the root of the matter, and if it is decided in his favour, -other questions do not fall for consideration. The question raised by the learned Advocate General may be posed thus: whether the amendment of the Constitution removing a constitutional limitation on a legislature to make a particular law has the effect of validating the Act made by it when its power was subject to that limitation. The present case illustrates the problem presented by the said question. The U. P. Legislature passed the U. P. Act on April 24, 1955, whereunder the State Government was authorized to frame a scheme of nationalization of motor transport. After following the procedure prescribed therein, the State Government finally published the scheme on June 23, 1956.
The Constitution (Fourth Amendment) Act, 1955, received the assent of the President on April 27, 1955. The -State Government framed the scheme under the U. P. Act after the passing of the Constitution (Fourth Amendment) Act, 1955.
Under the said Amendment Act, el. (2) of Art. 31 has been amended and cl. (2A) has been inserted. The effect of the amendment is that unless the law provides for the transfer of ownership or right to possession of any property to the State or to a Corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or 3 18 requisition of property within the meaning of cl. (2) of that Article and therefore where there is no such transfer, the condition imposed by cl. (2), viz., that the law Should fix the amount of compensation or specify the principles on which and the manner in which the compensation is to be determined and given is not attracted. If the amendment applies to the U. P. Act, as there is no transfer of property to the State, no question of compensation arises.
On the other hand, if the unamended Article governs the U. P. Act, the question of compensation will be an important factor in deciding its validity. The answer to the problem so presented depends upon the legal effect of a constitutional limitation of the legislative power on the law made in derogation of that limitation. A distinction is sought to be made by the learned Advocate General between the law made in excess of the power conferred on a legislature under the relevant List in the Seventh Schedule and that made in violation of the provisions of Part III of the Constitution.
The former, it is suggested, goes to the root of the legislative power, whereas the latter, it is said, operates as a check on that power, with the result that the law so made is unenforceable, and as soon as the check is removed, the law is resuscitated and becomes operative from the date the check is removed by the constitutional amendment.
Mr. Nambiar puts before us the following two propositions in support of his contention that the law so made in either contingency is void ab initio: (i) the paramount of fundamental rights over all legislative powers in respect of all the Lists in the Seventh Schedule to the Constitution is secured by the double process of the prohibition laid by Art. 13(2) and the restrictions imposed by Art. 245, unlike the mere implied prohibition implicit in the division of power under Art. 246; and (ii) where the provisions of an enactment passed by a legislature after January 26, 1950, in whole or in part-subject to the doctrine of severability-are in conflict with the provisions of Part III, the statute, in whole or in part, is void ab initio. This question was subjected to judicial scrutiny by this 19 Court, but before we consider the relevant authorities, it would be convenient to test its validity on first principles.
The relevant Articles of the Constitution read as follows:
Article 245: "(1)Subject to the provision of this Constitution, Parliament may make laws for the whole or any part of the territory Of India, and the Legislature of a State may make laws for the whole or any part of the State." Article 246: " (1) Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the" Union List ").
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make. laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the " Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the " State List ").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List." Article 13: " (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall Dot make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention be void." 20 Article 31 (Before the -Constitution (Fourth Amendment) Act, 1955):
" (1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, -and the manner in which, the compensation is to be determined and given The combined effect of the said provisions may be stated thus: Parliament and the Legislatures of States have power to make laws in respect of any of the matters enumerated in the relevant lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution including Art. 13, i.e., the power is made subject to the limitations imposed by Part III of the Constitution. The general power to that extent is limited. A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Art. 13. Article 13(1) deals with laws in force in the territory of India before the commencement of the Constitution and such laws in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency be void. The clause, therefore, recognizes the validity of, the pre-Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part III; whereas cl. (2) of that article imposes a prohibition on the State making laws taking away or abridging the rights conferred by Part III and declares that laws made in contravention of this clause shall, to the extent of the contravention, be void. There is a clear distinction between the two clauses. Under el. (1), a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law 21 can be made contravening the provisions of Part III, and therefore the law, to that extent, though made, is a nullity from its inception. If this clear distinction is borne in mind, much of the cloud raised is dispelled. When cl. (2) of Art. 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges 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 stillborn law.
Cooley in his book " Constitutional Limitations" (Eighth Edition, Volume I), states at page 379:
" From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions." The Judicial Committee in The Queen. v. Burah (1) observed at page 193 as under (1) (1878) L.R. 5 I. A. 178.
22 The established courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question ; and ,the only way in which they can properly do so, is by ;looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted." The Judicial Committee again in Attorney-General for Ontario v. Attorney-General for Canada (1) crisply stated the legal position at page 583 as follows:"............... if the text is explicit the text is conclusive, alike in what it directs and what it forbids." The same idea is lucidly expressed by Mukherjea, J., as he then was, in K. C. Gajapati Narayan Deo v. The State of Orissa (2). It is stated at page 11 as follows:" If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject_matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers." The learned Judge in the aforesaid passage clearly accepts the doctrine that both the transgression of the ambit of the entry or of the limitation provided by the fundamental rights are equally transgressions of the limits of the State's constitutional powers.
It is, therefore, manifest that in the construction of the constitutional provisions dealing with the powers of the legislature, a distinction cannot be made between an affirmative provision I and a negative provision; for, both are limitations on the power. The Constitution affirmatively confers a power on the legislature to make laws within the ambit of the relevant entries in the lists and negatively prohibits it from making laws infringing the fundamental rights. It (1) (1912) A.C. 571.
(2) [1954] S.C.R. 1.
23 goes further and makes the -legislative power subject to the prohibition under Art. 13(2). Apparent wide power is, therefore, reduced to the extent of the prohibition.
If Arts. 245 and 13(2) define the ambit of the power to legislate, what is the effect of a law made in excess of that power ? The American Law gives a direct and definite answer to this question. Cooley in his " Constitutional Limitations " (Eighth Edition, Volume I) at page 382 under the heading " Consequences if a statute is void " says :" When a statute is adjudged to be unconstitutional, it is as if it had never been................. And what is true of an act void in to is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force." In Rottschaefer on Constitutional Law, much to the same effect is stated at page 34:
" The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provisions never had legal force as applied to cases within that clause." In " Willis on Constitutional Law ", at page 89:
" A judicial declaration of the unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so far as the determination of the rights of private parties is concerned.
The Courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed.........................
" Willoughby on Constitution of the United States Second Edition, Volume I, page 10:
" The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of 24 the parties just as if such statute had no application. ....................
The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested, it is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted. I An after acquired power cannot, ex proprio vigore, validate a statute void 'When enacted'.
" However, it has been held that where an act is within the general legislative power of the enacting body, but is rendered unconstitutional by reason of some adventitious circumstance, as, for example, when a State legislature is prevented from regulating a matter by reason of the fact that the Federal Congress has already legislated upon that matter, or by reason of its silence is to be construed as indicating that there should be no regulation, the act does not need to be re-enacted in order to be enforced, if this cause of its unconstitutionality is removed. " For the former proposition, the decision in Newberry v.
United States (1) and for the latter proposition the decision in John M. Wilkerson v. Charles A. Rahrer (2) are cited. In Newberry's Case the validity of the Federal Corrupt Practices Act of 1910, as amended by the Act of 1911, fixing the maximum sum which a candidate might spend to procure his nomination at a primary election or convention was challenged. At the time of the enactment, the Congress had no power to make that law, but subsequently, by adoption of the 17th Amendment, it acquired the said power. The question was whether an after-acquired power could validate a statute which was void when enacted.
Mr. justice McReynolds delivering the opinion of the court states the principle at page 920 :
" Moreover, the criminal statute now relied upon ante-dates the 17th Amendment, and must be tested by powers possessed at time of its enactment. An (1) (1921) 256 U.S. 232; 65 L. Ed. 913.
(2) (1891) 140 U.S. 545; 35 L. Ed. 572.
25 after-acquired power cannot, ex proprio vigore, validate a statute void when enacted." In Wilkerson's Case (1) the facts were that in June 1890, the petitioner, a citizen of the United States and an agent of Maynard, Hopkins & Co., received from his principal intoxicating liquor in packages. The packages were shipped from the State of Missouri to various points in the State of Kansas and other States. On August 9, 1890, the petitioner offered for sale and sold two packages in the State of Kansas. The packages sold were a portion of the liquor shipped by Maynard, Hopkins & Co. It was sold in the same packages in which it was received. The petitioner was prosecuted for violating the Prohibitory Liquor Law of the State of Kansas; for, under the said law, "any person or persons who shall manufacture, sell or barter any intoxicating liquors, shall be guilty of a misdemeanor ". On August 8, 1890, an Act of Congress was passed to the effect that -intoxicating liquors transported into any State should upon arrival in such State be subject to the operation and effect of the laws of such State. It will be seen from the aforesaid facts that at the time the State Laws were made, they were valid, but they did not operate upon packages of liquors imported into the Kansas State in the course of interstate commerce, for the regulation of inter-State commerce was within the powers of the Congress; and that before the two sales in the Kansas State, the Congress made an Act making intoxicating liquors transported into a State subject to the laws of that State, with the result that from that date the State Laws operated on the liquors so transported. Under those circumstances, the Supreme Court of the United States held :
" It was not necessary, after the passage of the Act of Congress of August 8, 1890, to re-enact the Law of Kansas of 1899, forbidding the sale of intoxicating liquors in that State, in order to make such State Law operative on the sale of imported liquors." The reason for the decision is found at page 578:
(1) (1891) 140 U.S. 545; 35 L. Ed. 572.
4 26 This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for the State to pass, but which could not operate upon articles occupying a certain situation until the passage of the Act of Congress. That Act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a re-enactment of the State Law was required before it could have the effect upon imported which it had always had upon domestic property.
A reference to these decisions brings out in bold relief the distinction between the two classes of cases referred to therein. It will be seen from the two decisions that in the former the Act was Void from its inception and in the latter it was valid when made but it could not operate on certain articles imported in the course of inter-State trade. On that distinction is based the principle that an after acquired power cannot, ex proprio vigore, validate a statute in one case, and in the other, a law validly made would take effect when the obstruction is removed.
The same principle is enunciated in Carter v. Egg and Egg Pulp Marketing Board (1). Under s. 109 of the Australian Constitution " when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. " Commenting on that section, Latham, C. J., observed at page 573:
" This section applies only in cases Where, apart from the operation of the section, both the Commonwealth and the State Laws which are in question would be valid. If either is invalid ab initio by reason of lack of power, no question can arise under the section. The word " invalid " in this section cannot be interpreted as meaning that a State law whichis affected by the section becomes ultra vires in whole or in part. If the Commonwealth law were repealed the State law would again become operative. " We shall now proceed to consider the decisions of this Court to ascertain whether the said principles are (1) (1942) 66 C.L.R. 557.
27 accepted or departed from. The earliest case is Keshavan Madhava Menon v. The State of Bombay (1). There the question was whether a prosecution launched under the Indian Press (Emergency Powers) Act, 1931, before the Constitution could be continued after the Constitution was passed. The objection taken was that the said law was inconsistent with fundamental rights and therefore was void. In the context of the question raised, it became necessary for the Court to consider the impact of Art. 13(1) on the laws made before the Constitution. The Court, by a majority, held that Art.
13(1) of the Indian Constitution did not make existing laws which were inconsistent with fundamental rights void ab initio, but only rendered such laws ineffectual and void with respect to the exercise of the fundamental rights on and after the date of the commencement of the Constitution and that it had no retrospective effect. Das, J., as he then was, observed at page 233:
" It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. " At page 234, the learned Judge proceeded to state:
" They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution no existing law -will be permitted to stand in the way of the exercise of any of the fundamental rights.
Therefore, the void ness of the existing law is limited to the future exercise of the fundamental rights.................. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. " At page 235, the same idea is put in different words thus :".......................Article 13(1) only has the effect of (1) [1951] S.C.R. 228.
28 nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise Of fundamental rights on and after the date of the commencement of the Constitution. " At page 236, the learned Judge concludes:
" 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." Mahajan, J., as he then was, who delivered a separate judgment, put the same view in different phraseology at page 251 :
" The effect of Article 13(1) is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the Constitution but the past acts of a person which came within the mischief of the law then in force are Dot affected by Part III of the Constitution." The learned Judge, when American law was pressed on him in support of the contention that even the pre-Constitution law was void, observed thus, at page 256 :
" It is obvious that if a statute has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. The courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the Government of India Act, 1935. Of course, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts in India as is followed in America and even convictions made under such an unconstitutional law 29 will have to be set aside by resort to exercise of powers given to this court by the Constitution." Mukherjea J., as he then was, in Behram Khurshed Pesikaka v.
The State of Bombay (1) says at page 652 much to the same effect:
" We think that it is not a correct proposition that constitutional provisions in Part 11I of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the lawmaking power of a State is restricted by a written, fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of Constitution. A mere reference to the provisions of article 13(2) and articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part 111 of the Constitution after the coming into force of the Constitution. " The effect of the decision maybe stated thus: The learned judges did not finally decide the effect of Art. 13(2) of the Constitution on post-Constitution laws for the simple reason that the impugned law was a pre-Constitution one.
Art. 13(1) was held to be prospective in operation and therefore did not affect the preexisting laws in respect of things done prior to-the Constitution. As regards the post Constitution period, Art. 13(1) nullified or rendered all inconsistent existing laws ineffectual, nugatory or devoid of any legal force or binding effect with respect to the exercise of the fundamental rights. So far as the past acts were concerned, the law existed, notwithstanding that it did not exist with respect to the future exercise of the said rights. As regards the pre-Constitution laws, (1) [1955] 1 S.C.R. 613.
30 this decision contains the seed of the doctrine of eclipse developed by my Lord the Chief Justice in Bhikaji Narain Dhakras v. The State of Madhya Pradesh (1) where it was held that as the pre-Constitution law was validly made, it existed for certain purposes even during the post Constitution period. This principle has no application to post-Constitution laws infringing the fundamental rights as they would be ab initio void in to or to the extent of their contravention of the fundamental rights.
The observations of the learned judges made in the decision cited above bring out the distinction between pre and post Constitution laws which are repugnant to the Constitution and the impact of Art. 13 on the said laws.
In Behram Khurshed Pesikaka's Case(2), this Court considered the legal effect of the declaration made' in the case of The State of Bombay v. F. N. Balsara (3) that clause (b) of s. 13 of the Bombay Prohibition Act (Bom. XXV of 1949) is void under Art. 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol and held that it was to render part of s. 13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable. Bhagwati, J., at page 620, cited all the relevant passages from textbooks on Constitutional Law and, presumably, accepted the view laid down therein to the effect that an unconstitutional Act in legal contemplation is as though it had never been passed. Jagannadhadas, J., at page 629, noticed the distinction between the scope of cls. (1) and (2) of Art. 13 of the Constitution. After citing a passage from " Willoughby on Constitution of the United States ", the learned Judge observed :
" This and other similar passages from other treatises 'relate, however, to cases where the entire legislation is unconstitutional from the very commencement of the Act, a situation which falls within the scope of article 13(2) of our Constitution. They do not directly cover a situation which falls within (1) [1955] 2 S.C.R. 589. (2) [1955] 1 S.C.R. 613. (3)[1951] S.C. R. 682.
31 article 13(1)............... Thequestion is what is the effect of article 13(1) on a pre-existing valid statute, which in respect of a severable part thereof violates fundamental rights. Under article 13(1) such part is, " void " from the date of the commencement of the Constitution, while the other part continues to be valid.
Two views of the result brought about by this void ness are possible, viz., (1) the said severable part becomes unenforceable, while it remains part of the Act, or (2) the said part goes out of the Act and the Act stands appropriately amended pro tanto. The first is the view which appears to have been adopted by my learned brother, Justice Venkatarama Aiyar, on the basis of certain American decisions. I feel inclined to agree with it. This aspect, however, was not fully presented by either side and was only suggested from the Bench in the course of arguments. We have not had the benefit of all the relevant material being placed before us by the learned advocates on either side. The second view was the basis of the arguments before us. It is, therefore, necessary and desirable to deal with this case on that assumption." This passage shows that his opinion-though a tentative one was that the severable part became unenforceable while it remained part of the Act. But the learned Judge made an incidental observation that the American view applied to cases that fall within the scope of Art. 13(2) of the Constitution, i.e., the entire legislation would be unconstitutional from the very commencement of the Act. Venkatarama Aiyar, J., founded his decision on a broader basis. At page 639, the learned Judge observed:
" Another point of distinction noticed by American jurists between unconstitutionality arising by reason of lack of legislative competence and that arising by reason of a check imposed on a competent Legislature may also be mentioned.
While a statute passed by a Legislature which had no competence cannot acquire validity when the Legislature subsequently acquires competence, a statute which was within the competence of the Legislature at the time of its enactment but which infringes a, constitutional 32 prohibition could 'be enforced 'Proprio vigore when once the prohibition is removed." On the basis of this distinction, the learned Judge held that Art. 13(1) of the Constitution only placed a check on a competent legislature and therefore the word " void " in that article meant " relatively void ", i.e., the law only condemned the Act as wrong to individuals and refused to enforce it against them. In support of the said conclusion the learned Judge cited a passage from " Willoughby on the Constitution of the United States ". A comparison of the passage cited with that in the text book discloses that one important sentence which makes all the difference to the legal position is omitted by mistake and that sentence is " An after-acquired power cannot ex proprio vigore validate a statute void when enacted ". The second paragraph in the extract on which the learned Judge placed reliance and also the decision relied upon, by him did not support his conclusion. As already stated, the decision and the passage dealt not with a case where the State had no power to make the law, but with a case where the law lay dormant till a law of the Federal Congress removed the conflict between the State Law and the Federal Law. That case may by analogy be applied to Art. 13(1) in respect of laws validly made before the Constitution but cannot be invoked in the case of a statute which was void when enacted. By a subsequent order, this Court granted the review and reopened the case to enable the :Bench to obtain the opinion of a larger Bench on the Constitutional points raised in the judgment delivered by the learned Judges. That matter came up before a Constitutional Bench, and Mahajan, C. J., who was a party to the decision in Keshavan Madhava Menon's Case (1) explained the majority view therein on the meaning of the word " void " in Art. 13(1) thus, at page 651:" The majority however held that the word "void" in article 13(1), so far as existing laws Were concerned, could not be held to obliterate them from the statute book, and could not make such laws void altogether, because in its opinion article 13 had not been given any (1) [1951] S.C. R. 228.
33 retrospective effect. The majority however held that after the coming into force of the Constitution the effect of article 13(1) on such repugnant laws was that it nullified them, and made them ineffectual and nugatory and devoid of any legal force or binding effect. It was further pointed out in one of the judgments representing the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth, has no application to cases concerning obligations incurred or rights accrued in accordance with an existing law that was constitutional in its inception, but that if any law was made after the 26th January, 1950, which was repugnant to the Constitution, then the same rule shall have to be followed in India as followed in America. The result therefore of this pronouncement is that the part of the section of an existing law which is unconstitutional is not law, and is null and void. For determining the rights and obligations of citizens the part declared void should be notionally taken to be obliterated from the section for all intents and purposes, though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Thus, in this situation, there is no scope for introducing terms like " relatively void " coined by American Judges in construing a Constitution which is not drawn up in similar language and the implications of which are not quite familiar in this country." The learned Judge, as we have already pointed out, rejected the distinction made by Venkatarama Aiyar, J., between lack of legislative power and the abridgment of the fundamental rights. Though that question did not directly arise, the learned Judge expressed his view on the scope of Art. 13(2) at page 653 thus:
" The authority thus conferred by Articles 245 and 246 to make laws subject wise in the different Legislatures is qualified by the declaration made in 5 34 article 13(2). That power can only be exercised subject to the prohibition contained in article 13(2). On the construction of article 13(2) there was no divergence of opinion between the majority and the minority in Keshava Madhava Menon v. The State of Bombay (supra). It was only on the construction of article 13(1) that the difference arose because it was felt that that article could not retrospectively invalidate laws which when made were constitutional according to the Constitution then in force." Das, J., as he then was, in his dissenting judgment differed from the majority on other points but does not appear to have differed from the aforesaid views expressed by Mahajan, C. J., as regards the scope of Keshava Madhava Menon's Case on the meaning of the word " void " in Art. 13(1). This judgment is therefore an authority on two points and contains a weighty observation on the third : (i) when the law-making power of a State is restricted by written fundamental law, then any law opposed to the fundamental law is in excess of the legislative authority and is thus a nullity; (ii) even in the case of a statute to which Art.
13(1) applies, though the law is on the statute book and be a good law, when a question arises for determination of rights and obligations incurred prior to January 26, 1950, the part declared void should be nationally taken to be obliterated from the section for all intents and purposes ;
and (iii) on the construction of Art. 13(2), the law made in contravention of that clause is a nullity from its inception.
The next case is a direct one on the point and that is Saghir Ahmad v. The State. of U. P. (1). There, the U.P. Road Transport Act (11 of 1951) was passed enabling the State to run stage carriage service on a route or routes to the exclusion of others. Under that Act, the State Government made a declaration extending the Act to a particular area and issued a notification setting out what purported to be a scheme for the operation of the stage carriage service on certain routes. At the time the said Act was passed, the State had no such power to deprive a citizen of his (1) [1955] 1 S.C.R. 707.
35 right to carry on his transport service. But after the Act, Art. 19(1) was amended by the Constitution (First Amendment)Act, 1951, enabling the State to carry on any trade or business either by itself or through, corporations owned or controlled by the State to the. exclusion of private citizens wholly or in part. One of the questions raised was whether the amendment of the Constitution could be invoked to validate the earlier legislation. The Court held that the Act when passed was unconstitutional and therefore it was still-born and could not be vitalised by the subsequent amendment of the Constitution removing the constitutional objections but must be re-enacted. At page 728, Mukherjea, J., as he then was, who delivered the judgment of the Court, has given the reasons for the said view :" As Professor Cooley has stated in his work on Constitutional Limitations (Vol. 1, page 304 note.) " a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted ". We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under article 19(1) (g) of the Constitution and is not shown to be protected by clause (6) of the article, as it stood at the time of the enactment, must be held to be void under article 13(2) of the Constitution." This is a direct authority on the point, without a dissenting voice, and we are bound by it.
The decision given in Bhikaji Narain's Case, (1) is strongly relied upon by the learned Advocate General in support of his contention. Shortly stated, the facts in that case were: Before the Constitution, the C. P. & Berar Motor Vehicles (Amendment) Act, 1947 (C. P. III of 1948) amended the Motor Vehicles Act, 1939 (Central Act IV of 1939) and conferred extensive powers on the Provincial Government including the power to create a monopoly of the motor transport business in its favour to the exclusion of all motor transport operators. It was contended by the affected parties that by reason of Art. 13(1) of the Constitution, (1) [1955] 2 S.C.R. 589.
36 the Act became void. On behalf of the State, it was argued that the Constitution (First Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, had the effect of removing the inconsistency and the Amendment Act III of 1948 became operative again. This Court unanimously accepted the contention of the State. This decision is one given on a construction of Art. 13(1) of the Constitution and it is no authority on the construction and scope of Art. 13(2) of the Constitution. The reason for the decision is found in the following passages in the judgment, at page 598:
" ..................... on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right.
Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent l
