Great deal of emphasis was laid during the course of the argument on the meaning to be given to the word “void” and it was said that this word in its widest sense meant that the law declared void was void ab initio, i. e., from the very inception of the law it was bad.
If that meaning was given to this word, then it would mean that all laws existing on 26-1-1950 and which were declared void by Art.13 (1) because of their being repugnant to the constitution were bad when they were passed by the Legislature, though at the same time the subject enjoyed no fundamental rights. It was sought to give to this word ‘void” the same wide meaning as was given to the word “repeal’ by Tindal C. J. in the case above mentioned. With every respect to the great Judge who administered the Common Law in England during the earlier period of British history and in all humility I venture to say that the rule evolved by them qua “repeal” was of an artificial nature.
The dictum of the learned Chief Justice that a repeal of a statute obliterates it completely from the records of Parliament as if it had never passed is to my mind based on an extended meaning of that expression than its ordinary dictionary sense. When a Statute has been in operation, say for a period of fifty years, people have suffered penalities under it or have acquired rights thereunder and the law has been enforced by Cts for such a long period, then to say that when it is repealed it is completely obliterated and that it never had any existence and was never passed by Parliament is rather saying too much and is ignoring hard real facts and amounts to shutting one’s eyes to the actualities of the situation. It would be more consonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has no longer any effect whatsoever.
The Parliament may, however, say in the repealing Statute that it will have retrospective operation and it may also prescribe the limits of its retrospectivity and to that extent past transactions may be affected by it. Because the rule of common law evolved by the English Judges was not in consonance with reason and justice, a legislative practice was evolved under which each repealing Statute contained a saving clause under which past transactions were not allowed to be affected by the repeal.
Eventually the rule of Common law was completely abrogated by the enactment of the interpretation Act, 1889. In India in the year 1868, S. 6, General Clauses Act, enacted what was later on enacted in England in the Interpretation Act and for over eighty years it is this rule of construction that has been adopted in this country, the rule being that past transactions, whether closed or inchoate, cannot be affected by the repeal of an earlier Statute or by the coming into effect of a new one.
In my opinion, the rules contained in the General Clauses Act and in the English Interpretation Act is more in consonance with reason and justice and is also a rule at convenience and should be followed in this country, in preference to the rule evolved by the English Judges in the earlier part of English legal history. Be that as it may, it is unnecessary in this case to have resort either to the rule of common law or to the General Clauses Act as the language of Art. 13 itself furnishes a solution to the problem.
In view at the decision above arrived at, it seems unnecessary to pronounce on the alternative argument of the learned Attorney-General to the effect that the expression “void” used in Art. 13 of the constitution is synonymous with the word “repeal” and that it was an apt word used in the context to indicate the same intention. It was said that the word “repeal” was not used in the Article but instead the expression “void” was employed therein by the draftsmen in order to include within its ambit cases of custom and usage where such custom and usage was also repugnant to the provisions of Part III of the constitution. It was also urged that by Art. 13 (1) the constitution in express terms repealed all laws inconsistent with its provisions and that the only power given to the Ct, was to find out which of these laws was inconsistent with the provisions of Part III. The declaration that these laws were void or repealed was by the force of the provisions of Art. 13 itself and did not result from the decision of the Cts. It is also unnecessary to examine the further argument of the learned Attorney-General that in any case since 1868 in this country the rule of construction of Statutes is the one laid down by S. 6, General Clauses Act, 1868, and that though in express terms that Statute may not be applicable to the construction of Art. 13 (1) of the constitution, yet that rule is a rule of justice, equity and good conscience and has become a rule of common law in this country and should be applied even to cases where Statutes become void by reason of their being repugnant to the constitution.
Categories: Judicial Dictionary