Pre Constitutional Void
 |
| Solar eclipse representing the doctrine |
By Kishore Kulkarni
According to our understanding, a state is an assembly of individuals or an organization that is governed by a sovereign body. The sovereign here, is the government. Is it the most sovereign of all, actually it is and it is not, both, The government is sovereign only to a certain extent but the real sovereign is the Constitution. The government comprises of Legislature to make laws, Executive to implement the laws made by legislature and Judiciary to interpret the laws. There a clear demarcation and separation of powers amongst the three organs. Having said that, the powers vested on these organs and more particularly government is given by the constitution and its makers. All in all, There is no doubt, discussion as to the supremacy of the Constitution of India. It is the only supreme document of Independent India.
A state, in the sense, government, by representatives of people, must always bear in mind to have the best interests of its citizens. The Constitution of India has given its citizens certain essential rights. These rights are known as The Fundamental Rights. As I have mentioned above, only legislature has got the exclusive power to make laws for the people of the country. Now, there is a unique relationship between laws made and fundamental rights of the people. The law making body can go to any extent and make any laws, but, It should not be violating any fundamental rights. If any laws are passed in the legislature which is contrary, it can be struck down by the Court. The Courts, and its Judicial powers, is not confined only to interpret the laws but also to scrutinize the laws and declare it as void or inconsistent , If, it violates the constitutional principles. Any law which is not in accordance with these essential rights must be held unconstitutional or as void ab initio.
Road, Highways, footpaths, pathways etc are public property. Everyone is free to access it without any hindrance or objections during normal circumstances. Imagine a situation where these public properties are restricted for usage and transport business which were being carried out, are regulated and controlled to a extent where, there would be an exclusion of private businesses. The Instance case is an example of situation where the state, with the help of legislature, amended an act which gave arbitrary powers to the government and deprived the rights of the people, here, Rights refer to right to access public amenities. It is does not take great intellect to understand that the purpose of public property is to ensure that there is proper safety of people and the taxpayers are the rightful users of such amenities. If there have to be any kind of restrictions on these rights of people, the restriction must be in the corners of constitution. The government cannot have a imaginary reason to impose restriction of rights. The imposed restriction, need to be in accordance of constitutional principles, to be justified. The judiciary, through courts, constantly scrutinize the laws made.
Interesting aspect of the below discussed case is that there was no
constitutional remedy which was readily available to resolve the issue. It was
the Supreme Court which had to introduce a new concept called doctrine of
Eclipse to decide the issue. The Apex court constituted a Five Judge
Constitution bench headed by then Chief Justice of India Mehr Chand Mahajan,
The iconic, Justice Vivian Bose, Justice Sudhir Ranjan Das, Justice Ghulam
Hasan, and Justice B.K.Mukherjea.
The History of this case dates back to Pre- Constitutional era, that is, before 26th January 1950. While reading above paragraph, we imagined a situation of restricting the right, The exact thing happened in the case of Bhikaji V . State of Madhya Pradesh. Petitioners have been carrying on business as stage carriage operator for many years and to legitimately carry it permit were granted under Motor Vehicles Act.
It is a known fact that power of legislature is not limited to only law making, but also extends to amending or changing the laws. The Government, through state legislature introduced amendments to the Motor vehicles Act which gave unconstitutional powers to fix fares throughout the province or for any road, routes etc. . In exercise of these powers, not only to regulate or control the fares or freights but also to take up the entire motor transport business in the province and run it in competition with and even to the exclusion of all motor transport operators. The extensive powers were given to the Provincial Government to carry out implement the policy of nationalization of the road transport business adopted by the Government. At the date of the passing of the amending Act there was no fundamental rights of the citizens, in the sense, there was no constitution to guarantee any rights, Hence, it was well within the Legislature to enact that law despite being contrary to current analysis of Rights of citizens.
The
amending Act was, at the date of its passing, was a valid piece of legislation.
After the Constitution came into force, Article 19 also came into existence.
Article 19 of the constitution guarantees, freedom regarding certain things and clause (1) (g) of Art. 19 provides Right to practice any
profession or to carry on any occupation, trade or business to all citizens.
With bare reading and comparing between the provision and the amended act, It
is clearly a violation of Fundamental Right. New provisions were introduced by
the Act, authorizing the Provincial Government to exclude all private motor
transport operators from the field of transport business. It is well within the
government's power to restrict public The Constitution (First Amendment) Act,
1951 By section 3(1) of that Act for clause (2) of article 19 a new sub-clause
was substituted which was expressly made retrospective.
The First Amendment to Art 19 enabled the State to make any law imposing, in the interests of the general public, reasonable restriction on the exercise of the right conferred. The only constitutional remedy for such act by the state was, for petitioners, to approach the Supreme Court under Article 32. The petitioners approached the court praying for the act to be held unconstitutional. The question before the Hon’ble Court was Constitutional Validity of the C.P & Berar Motor vehicles act, 1947, and was the Impugned act in conflict with section 299 of The Government of India Act 1935.
Invalidity of the Act
The law having become void for unconstitutionality was dead and could not
be vitalized by a subsequent amendment of the Constitution removing the
constitutional objection, unless it was re-enacted. The Petitioners made
reference to Prof. Cooley's work, the most authoritative book on
Constitutional Limitation and referred to judgment in Shagir Ahmad's case. The
Petitioners were deprived of their property, namely, the right to ply motor
vehicles for gain which is an interest in a commercial undertaking. Although,
there is no bar to the government to acquire property but proper, fair and
justified compensation must be given. Article 31(2) of the Indian Constitution
of 1949 states that the government must pay fair and just compensation to the
owner when it acquires property therefore, the impugned Act does conflict with
the provisions of article 31(2) of the Constitution.
The Petitioners raised the question as to the invalidity of the impugned Act even before the advent of the Constitution. Prior to the Constitution, when there were no fundamental rights, section 299 of the Government of India Act, 1935. The act was passed before the commencement of the Constitution after the First Amendment, Constitution permits the creation of State monopoly in matters related to motor transportation business. The immediate effect of this act was, monopoly of state became operative.
The new question that has now been mooted Reading down article 13. Bare
reading of Article 13 and it clauses reads as follows Laws inconsistent with or
in derogation of the fundamental rights (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 not 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. To make it simple, the clauses said that all laws which were in practice
before the constitution came into existence, if any of those laws violated the
fundamental rights shall be declared as unconstitutional. This article also
empowers Judiciary to strike down laws, which abridges Part III of the
Constitution.
This involves a question of construction of article 13 of the Constitution.
Existing law imposed restrictions on Freedom to practice any profession under
Article 19 (1) (g) and moreover, the act, through which, restriction was
imposed could not be justified as reasonable under the clause (6) of Art 19. It
stood, under Article 13 (1) that existing law ( or the impugned act) became
void "to the extent of such inconsistency".
The word 'Eclipse' or perhaps Doctrine of Eclipse came into existence by
the Supreme Court. The act is eclipsed for time being and if there are any
legislation then the eclipse would vanish and the present legislation would
come into force. It basically said that, in the current circumstance the
disputed act is being kept in eclipse mode. If there are, in future, any
legislations which could justify the act, It can be brought back to function.
The word "acquisition" occurring in section 299 had the limited
meaning of actual transference of ownership and not the wide meaning of
deprivation of any kind that has been given by this Court. It was not clear at
all that the impugned Act conflicted with section 299 of the Government of
India Act, 1935.
Eclipse
The case of Bhikaji V. State of MP is immortal in the constitutional
history of India because of the birth of Doctrine of Eclipse by the Apex Court
of India. The case dealt with an amendment which at the time of passing was a
valid piece of Legislation but after the commencement of Constitution on 26th
January 1950, the said act became an infringement to the Fundamental rights of
the petitioners. The Supreme court came up with the term pre-Constitutional
laws in the domain of Article 13 of the Constitution. That is the laws which
were passed in India before the commencement of the Constitution. It is
well-settled that the word 'void' In Art. 13 means void to the extent of the
inconsistency with a fundamental right and the language of the article makes it
clear that the entire operation of an inconsistent Act is not wiped out. It
applies to past transactions and the rights and liabilities accruing therefrom
and continues even after the commencement of the Constitution
The Court evolved a new concept of Doctrine of Eclipse where any laws
passed before the constitution, being inconsistent with the Fundamental Rights
will be held in a eclipsed mode for an period of time. The Doctrine of Eclipse
is like the Solar eclipse, where there is a shadow on the laws for a period of
time. The unique feature about the acts eclipsed under this doctrine is that,
it can be brought back to function again, only if, in future, it will be
justified for refunctioning.
In Keshava Madhava Menon v. The State of Bombay [1961] S.C.R. 288, relied on The true effect of Art. 13(1) is to render an Act, inconsistent with a fundamental right, inoperative to the extent of the inconsistency. It is overshadowed by the fundamental right' and remains dormant but is not dead.
The Constitution of India is supreme and has vested the power on
legislature to enact acts and amend them in accordance with the constitutional
principles. A state must ensure that the laws which it passes must be in the
welfare of its citizens and must not be abridging the fundamental Rights
enshrined in part III of the Constitution. In this above case the government
had attempted to overthrow the right of profession and with the help of an
amendment tried to establish monopoly over Road Transport. The Supreme court
examined the issues and declared the law was unconstitutional. The court
examined the American prospectus of post constitutional laws and evolved its
own method by introducing the concept of pre-Constitutional laws. Any pre
constitutional laws which were not consistent with the Fundamental Rights are
void.
Well Done Kishore
ReplyDelete