ARTICLE 13 NOT RETROSPECTIVE IN EFFECT

ARTICLE 13 NOT RETROSPECTIVE IN EFFECT

 

ARTICLE 13 NOT RETROSPECTIVE IN EFFECT

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 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.

3.  In this article, unless the context otherwise requires,—

a.  “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

b. “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

4.  Nothing in this article shall apply to any amendment of this Constitution made under article 368.

 

•  Article 13 (1) declares that all laws in force in the territory of India immediate before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of Part III of the Constitution.

•  All pre-Constitution laws inconsistent with Fundamental Rights will become void only after the commencement of the Constitution. They are not void ab initio. Such inconsistent law is not wiped out so far as the past Acts are concerned.

•  A declaration of invalidity by the Courts will, however, be necessary to make the laws invalid.

•  The Supreme Court in Keshava Madhav Menon v. State of Bombay, AIR 1951 SC 128: Rabindra Nath v. Union of India, AIR 1970 SC 470.] observed: ‘There is no Fundamental Right that a person shall not be prosecuted and punished for an offence committed 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 the Fundamental Rights.’

•   In that case, a prosecution proceeding was started against the petitioner under the Press (Emergency Powers) Act, 1931 in respect of a pamphlet published in 1949. The present Constitution came into force during the pendency of the proceeding in the Court.

•  The appellant contended that the Act was inconsistent with the Fundamental Rights conferred by Article 19 (1)(a) of the Constitution hence void, and the proceeding against him could not he continued. The Supreme Court held that Article 13(1), could not apply to his case as the offence was committed before the present Constitution came into force and therefore, the proceedings started against him in 1949 were not affected.

•  The Supreme Court held that; As the Fundamental Rights became operative only on and from the date of the Constitution, the question of the inconsistency of the existing laws with those rights must arise from the date those rights came m being The voidness of the existing law is limited to the future exercise of Fundamental Rights.

•  Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute Book, for to do so will be to give them retrospective effect which, we have said, they do not possess.”

•  This does not mean that a discriminatory procedure laid down by a pre-Constitution Act is to be followed in respect of pending proceedings or in respect of new proceedings started in respect of pre rights or liabilities.

•  Though the substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, nobody can claim his rights and liabilities to be enforced under a particular procedure which becomes inconsistent with Fundamental Rights. [Lachmandas v. State of Bombay. AIR 1952 SC 235.]

 

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