Law declared unconstitutional is void from it's inception

Cause Title : CBI vs R.R. Kishore, Criminal Appeal No.377 Of 2007, Supreme Court Of India

Date of Judgment/Order : 11/09/2023

Corum : 

1. J. (Sanjay Kishan Kaul)
2. J. (Sanjiv Khanna)
3. J. (Abhay S. Oka)
4. J. (Vikram Nath)
5. J. (J. K. Maheshwari)

Citied: 

1. Subramanian Swamy vs. Director, Central Bureau of Investigation and another, (2014) 8 SCC 682
2. Manjit Singh Bali vs. Central Bureau of Investigation
3. Rao Shiv Bahadur Singh and another Vs. State of Vindhya Pradesh, (1953) SCR 1188
4. State of West Bengal Vs. S.K. Ghosh, (1963) 2 SCR 111
5. Sajjan Singh Vs. The State of Punjab, (1964) 4 SCR 630
6. Rattan Lal Vs. State of Punjab, (1964) 7 SCR
7. Union of India Vs. Sukumar Pyne, (1966) 2 SCR 34
8. G.P. Nayyar Vs. State (Delhi Administration), (1979) 2 SCC 593
9. Soni Devrajbhai Babubhai Vs. State of Gujarat and Others, (1991) 4 SCC 298
10. Securities and Exchange Board of India Vs. Ajay Agarwal, (2010) 3 SCC 765
11. Vineet Narain and Others Vs. Union of India and Another, (1998) 1 SCC 226
12. Keshavan Madhava Menon Vs. The State of Bombay, 1951 SCR 228
13.  Behram Khurshed Pesikaka Vs. The State of Bombay, (1955) 1 SCR 613
14.  M.P.V. Sundararamier and Co. Vs. The State of Andhra Pradesh & Another, 1958 SCR 1422
15. Deep Chand Vs. The State of Uttar Pradesh and Others, 1959 SCR Suppl.(2) 8
16. Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others, AIR1963 SC 1019
17. Municipal Committee, Amritsar and others Vs. State of Punjab and Others, (1969) 1 SCC 475
18. The State of Manipur & Ors. Vs. Surjakumar Okram & Ors., 2022 SCC Online SC 130
19. I.C. Golaknath & Ors. Vs. State of Punjab and Anr., (1967) 2 SCR 762
20. Managing Director, ECIL, Hyderabad and Others Vs. B. Karunakar and Others,  (1967) 2 SCR 762
21. M.A. Murthy Vs. State of Karnataka and others, (2003) 7 SCC 517
22. Transmission Corporation of A.P. Vs. C.H. Prabhakar and Others, (2004) 5 SCC  551
23. Hopt Vs. People of the Territory of Utah, 110 US 574 (1884)
24.  Duncan Vs. State, 152 US 377 (1894)
25. Gibson Vs. Mississippi, 162 US 565 (1896)
26. Thompson Vs. State of Missouri, 171 US 380 (1898),
27. John Mallett Vs. State of North Carolina, 181 US 589 (1901)
28. John Rooney Vs. State of North Dakota, 196 US 319 (1905)
29. Beazell Vs. State of Ohio Chatfield, 269 US 167 (1925)
30. Dobbert Vs. Florida, 432 US 282 (1977)
31. Smith et al Vs. Doe et al, 538 US 84 (2003)
32. Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92
33. H.N. Rishbud and Inder Singh Vs. The State of Delhi, (1955) 1 SCR 1150
34. Fertico Marketing and Investment Private Limited and Others Vs. Central Bureau of Investigation and Another, (2021) 2 SCC 525
35. Rattiram and Others Vs. State of Madhya Pradesh, (2013) 12 SCC 316
36. State of Karnataka Vs. Kuppuswamy Gownder and Others, AIR 1987 SC 1354
37. A.C. Sharma Vs. Delhi Administration, (1973) 1 SCC 726
38. Ashok Kumar Gupta and Another Vs. State of U.P. and others, (1997) 5 SCC 201
39. Kaiser Aluminium and Chemical Corporation Vs. Bonjorno, 494 US 827 (1990)
40. Assistant Excise Commissioner, Kottayam and Others Vs. Esthappan Cherian and another, Civil Appeal No. 5815 of 2009 by Supreme Court of India vide order dated 06.09.2021
41. Prabhu Dayal Deorah Vs. District Magistrate, (1994) 1 SCC 103
42. Mohan Lal Vs. State of Punjab, (2018) 17 SCC 627
43. Varinder Kumar Vs. State of Himachal Pradesh, (2020) 3 SCC 321
44. Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, (1953) 2 SCC 111
45. Phillips v. Eyre, (1870) LR 6 QB 1 at pp. 23 and 25
46. Calder v. Bull, 1 L Ed 648 at p.649 : 3 US (3 Dall) 386 (1798)
47. State of Bombay Vs. F.N. Balsara, (1951) 1 SCR 682

Background

Two separate matter connected by a specific law since declared invalid and unconstitutional, were placed before the Hon'ble Supreme Court.

In the first, a trap was laid and a senior govt. employee was arrested, allegedly with bribe money. The said employee appealed before the Delhi High Court that since as per existing law, the trap which was a part of the enquiry/investigation had been laid without the previous approval of the Central Government, the case should be dismissed. When the High Court ruled in favour of the employee, the present appeal was filed before the SC whence the Judges decided that the issue should be dealt by the constitutional bench. The said law i.e. Section 6A of the Delhi Special Police Establishment Act, 1942 under which the employee had argued for dismissal had in the meantime been declared invalid and violative of Article 14 of the Constitution by a Constitution Bench in the Subramanian Swamy matter.

The second was almost similar and was before the Bombay High Court.

The Union Of India, while arguing in favour of retrospective application of the said invalidation said that the said law is not a penal provision and it does not create a new offence nor does it increase the punishment for an existing offence, which existed on the date of the commission of offence. At best, the law was purely technical, procedural precondition, which was preliminary in nature and was to be exercised prior to the stage of investigation. It is settled proposition that declaration of unconstitutionality renders a law to be non est, void ab initio or unenforceable, as the case may be, subject to the legislature to cure the basis of the said unconstitutionality.

The question before the bench was the Bench now was whether declaration of any law as unconstitutional by a Constitutional Court would have retrospective effect or would apply prospectively.

Judgment

Though the bench at the very onset decided to answer only specific questions referred to it and would not be enlarging the scope of the reference made, the issue discussed has long range implications.

The court first observed that the matter is covered under Article 13 of the constitution which states :-

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

13(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.

Article 13(2) prohibits making of any law so it would be relating to laws made post commencement of the Constitution, like the case at hand.

In the Oxford dictionary, the word ‘void’ is defined to mean something is not legally valid or binding, when used as an adjective and further when used as a verb, it means to declare that something is not valid or legally binding.

The SC held that :-

1) Acts/Laws can be procedural or they may include penal provisions and/or introduces a conviction or sentence

2)An unconstitutional law, be it either due to lack of legislative competence or in violation of fundamental rights guaranteed under Part III of the Constitution of India, is void” ab initio

3) A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law.

4) After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes.

5)In declaration of the law, the doctrine of prospective overruling can be applied by this Court to save past transactions under earlier decisions superseded or statutes held unconstitutional.

5) Relief can be moulded by this Court in exercise of its power under Article 142 of the Constitution, notwithstanding the declaration of unconstitutional.

6) The distinction drawn was that where a law is not within the domain of the legislature, it is absolutely null and void. But where a law is declared to be unconstitutional, then it would be unenforceable and to that extent void, as per Article 13(2) of the Constitution.

The court observed that where a statute is adjudged to be unconstitutional, it is as if it had never been and any law held to be unconstitutional for whatever reason, whether due to lack of legislative competence or in violation of fundamental rights, would be void ab initio.