Juristic Conception of Still Born Law
The Positive Juristic Conception of Still Born Law
The Norm of Still Born Law:- Where Jurisprudence infuses Life
I shall argue firmly on the Juristic Principles which have been raised in the series of Constitutional Law Cases.
“As the Jurisprudence
of a Law is for a Law, like Kant’s Good Will, which is not good because of what
it effects or accomplishes, it is Good in itself. Even if by utmost effort the
Good Will accomplishes nothing it would still shine like a Jewel for its own
sake as something which has full value in itself”.
The Life of
“Jurisprudence” exists as long as Law ‘Breathes’ for “Cessante ratione legis,
cessat et ipsa lex – when the reason for the Law ceases, the law itself
ceases”. Thus, in the search of Jurisprudence of the Law, as a Norm and its Birth & Death, I
have placed my foot in an unchartered territory, so at the End, the Divine
Light of Reason may shine my opinion as the part of Great Tradition of
Constitutional Jurisprudence.”
A MATTER OF
CONSTITUTIONAL TEXTUALISM:-
But
before, I shall lead to Juristic Study, it is of the most important essence
that I shall place before you the “Text of Article 13”, as enshrined in the
Constitution of India
“13.
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
(3)
In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having in the territory of India the force of law; laws in force includes laws
passed or made by 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India before the commencement of this Constitution and not previously repealed,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”
Article 13(1), states about the
Pre-Constitutional Law, that when they were made were “Legally Valid” and there
Constitutionality were not tested to ‘Fundamental Rights’, for there exists none,
in a Positive Sense of Law. But after the Constitution was enacted, the
Constitution as a Basic Norm, made a Superior Norm that, such
Pre-Constitutional Laws must be Subjected to the Fundamental Rights and if they
were inconsistent with the fundamental right, then “to the extent of the
inconsistency they shall be declared void”. On this
article there has been an agreement to it Jurisprudence from the case law
relating to the Deep Chand v State of
Uttar Pradesh,
“Art. 13(1) deals with
laws in force in the territory of India before the commencement of the
Constitution and such laws insofar as they are inconsistent with the provisions
of Part, III shall to the extent of such inconsistency be void. The clause,
therefore, recognises the validity of the pre-Constitution laws and only
declares that said laws would be void thereafter to the extent of their
inconsistency with Part III. Therefore, the pre Constitution laws which were
perfectly valid when they were passed and the existence of which is recognised
in the opening words of Art. 13(1) shall revive by the removal of the
inconsistency in question.
Therefore
the “Doctrine of Eclipse” applies firmly
in the context of Pre-Constitutional Laws. But the Difference of Juristic
Opinion arises in the context of Article 13(2), on the Juristic Question that
“Whether the Law made in contravention of Fundamental Right, which takes away
or abridges the rights conferred by Part III of the Constitution, is “Still
Born Law” or “Law in state of Eclipse”. Before I embark upon the Juristic
Search of true meaning of words used in Article, 13(2), I shall described, what
it means “for a Law to be Still-Born”.
“When a Law is stated
to be Still-Born, it is Born Dead, Such a law is dead from the beginning and
there can be no question of its revival under any rule of Constitutional
Interpretation. As Professor Cooley,
American Constitutional Jurist, in
his work on Constitutional Limitations
states that a statute void
for unconstitutionally is
dead and cannot be vitalised by a
subsequent amendment of the Constitution removing the constitutional objection
but must be re-enacted. Therefore, the mandate of Article 13(2) of the
Constitution will equally apply to the Parliament when it is functioning as a
Legislature for making an Act. The Parliament cannot be deemed to have taken
into consideration something which was stillborn or dead”.
This
is in Essence the True Importance of “Still-Born Law”, with its Juristic
Underpinnings. Now, I shall firstly inquire upon the text of Article 13(2),
which is divided in two parts that “The
State shall not make any laws which takes away or abridges the right conferred
by this part” and “any law made in
contravention of this clause shall, to the extent of the Contravention, be void”.
Now,
what is the true interpretation of it? The Judgements of the Supreme Court on
the point of affirming the “Still Born
Law” in context of Article 13 is found in Deep Chand etc. vs. The State of Uttar Pradesh ,
where the Court observed that,
“A Legislature,
therefore, has no power to make any law in derogation of the injunction
contained in Article 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 clause (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 clause (1), a
pre-Constitution law subsists except to the extent of its inconsistency with
the provisions of Part III; whereas, no post-Constitution law can be made
contravening the provisions of Part III, and therefore the law, to that extent,
though made, is a nullity from its inception. 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 still-born law." (emphasis supplied)”
Therefore
in Mahendra Lal Jaini v State of U.P, the Supreme Court in its finality
observed that, “the law made in
contravention of the prohibition contained in Art. 13(2) is a still-born law
either wholly or partially depending upon the extent of the contravention. Such
a law is dead from the beginning and there can be no question of its revival
under the doctrine of eclipse…”
This
is the proposition on which the “Doctrine of Born Dead Lives Firmly, as a
principle of Juristic Interpretation”.
Now,
I shall firmly argue my opinion, on the basis of Text & Jurisprudence. If
we find the text of Article 13(1) and Article 13(2), we must observe that,
there is an important difference in the texture of the article, as for Article
13(1), the words that the “State shall not make any law” has not been used, the
reason of which I find in the text that states that, “all laws in force”, which implies that “Laws has already been made
by the Previous Legislature, which has power to make laws”, and “such laws are
in force due to such making”. Now, it tests the “Legitimacy of Such Law or
Validity of such laws, upon their Consistency with Fundamental Right” and
states that, “to the extent of such inconsistency be void”. These words, are
most emphatic, for the reason that, the Laws are “Void, only to the extent of
such inconsistency” and they are not “presumed to be Still Born or Born Dead”,
for this presumption is in a nature of a “Legal Fiction”.
Now,
if we see the other article, it states affirmatively, that “State shall not
make any law which takes away or abridges the right conferred” but it adds
something more to this which is “and any law made in contravention”. Now, if we
see, from the text that if “the law that is made is Still Born or Born Dead,
with respect to its first part, then it must not have find its place in the
second part that has “impliedly accepted that such law may be made by the
Legislature”, “in the defiance of the constitutional restriction of the first
part”, and when it is made, “it has the body of law”, that is “it is made by a
Legislature”, though in contravention of such
restriction. Henceforth, even after contravention, it consider it as
“Law Made”, “with a suitable Form of Law”, that can be nature as described in
Article 12. It agrees that “Birth has taken Place, with a Spirit in the Law”,
but then it removes from its power by declaring it “Void”, as of no effect of
Conferring Rights or Imposing Liabilities. The Void is not “void non-est” but
simply “void” as used in Article 13{1}, to put on it as “Void non-est”, will be
Judicial Amendment and not Judicial Interpretation, to which Judiciary has no
power.
Further,
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,
which is it is a Law with its own body and spirit and to say that it is not
born, and the Parliament will not have deemed to put its mind, is to negate not
only reality, but also the Constitutional Textualism that consider it as Law
Made in such Contravention. Now, it may be argued on the firm ground that if it
is so, then “Why Such an Explicit Constitutional Prohibition has been Made”, that
has not been made in further article. I would states two reason, the reason
based on Constitutional Text and the Reason based on Jurisprudence, which I
shall argue later.
As
Far as the reason of Constitutional Text is Concerned, the most important reason
is the “imposition of bindingness of Fundamental Rights over the Laws made by
the State, and the law “shall” confirm to “such rights” and if they are not
agreeable in the sense of abridging or taking away such rights, then they are
to be “declared void”, and not “void non-est”. The reason could be find more
firmly on the speech made by BR Ambedkar, while debating the Provision of
Article 12 and Article 13, as Article 7 and 8 of the Draft Constitution,
wherein he remarked
“I can very easily
explain to him why this article must stand as part of the Constitution…The
object of the Fundamental Rights is two-fold. First, that every citizen must be
in a position to claim those rights. Secondly, they must be binding upon every
authority - I shall presently explain what the word" authority" means
- upon every authority which has got either the power to make laws or the power
to have discretion vested in it. Therefore, it is quite clear that if the
Fundamental Rights are to be clear, then they must be binding,{upon} every
authority which has been created by law and which has got certain power to make
laws, to make rules, or make by-laws.”
The
third argument, in matter of Constitutional Text, is that if they are “presumed
to be born dead”, then the Law is dead for all purposes, it is not dead for one
and lives for another. If it is born dead, then it must re-born from its
creator. Now, if the Law is born Dead, then the argument arise that, What shall
happen for those persons upon whom such Fundamental Right is not conferred,
whether it will revive for Such Person or still remains dead? And if it revives
for such person, then it shall be opposite to the idea of “Born Dead” itself,
for it has no life to Live and no Life to confer right to any person, for when
it was born, it was born with closed eyes, so that it cannot differentiate
between the Person, to whom such rights are conferred and to whom such rights
are not conferred. And, if it does not revive, then it will go against the
textual construction put on the second part, that agrees that “only to the
extent of such contravention, it shall be void”. And if it revives and is not
born dead for person upon whom fundamental rights are not conferred, it will be
against its own Juristic Interpretation and the God of Such Law will not be its
Nature but an Arbitrary Judicial Creator.
Henceforth,
the sense of Bindingness must not be construed to make a Law Born Dead, for it
will lead to the Actual Death of the Principle and will lead to Juristic
Interpretation that will be at the height of absurdity and arbitrariness.
The
Fourth Argument of mine, will be based on the “Textual Provision of Draft
Constitution”, if we see the Draft Constitution, Article 13 is renamed as
Article 8 and the “marginal heading” is titled as “SAVINGS”. Now, this Marginal Heading is the essence of this Article
and the Intention of its Drafters. Henceforth, we shall have a brief study, of
Saving Clause. In this Common law doctrine was expressed in very forceful
language by Tindal C. J. in 'Kay v. Goodwin' where he said:
“I take the effect of
a repealing statute to be to obliterate it as completely from the records of
the Parliament as if it had never been passed and it must be considered as a
law that never existed except for the purpose of those actions which were
commenced, prosecuted and concluded whilst it was an existing law.”
Therefore
the Hon’ble Madhya Pradesh High Court in
State vs Fatehchand observed that,
“The language of
hyperbole thus employed to express the simple proposition that from the date of
repeal, the repealed Act ceased to apply to past acts not concluded by the time
the repeal came, gave rise to many complications. Certainly very forceful and
picturesque phraseology is used when it is said that the effect of a repeal of
a statute was to obliterate a statute from the records of the Parliament as if
it was never passed, but nonetheless both as a matter of history and record,
the repealed Act had its own place”
After
which the Court laid down the Essence of the Introduction of “Saving Clause”,
“Due to these and
other problems, which constantly arose with the repeal of a statute and also to
numerous cases of hardship, which arose out of such an interpretation, the
first step which was taken to remedy it was to resort to the practice of inserting
a proviso or a saving clause in all repealing statutes, the effect, of which
was that the repeal of the statute did not affect rights, privileges, penalties
and forfeitures that had accrued under the repealed statute. Thus the saving
clause in the repealing Act became a regular feature of all future legislation
in England. The saving clause came to be looked upon as highly desirable for
practical as well as equitable purposes”
Therefore,
the insertion of “Saving Clause” as Article 13 shows that, the Intent of the
Constitution Makers was “to protect the Laws, in so far, they are not
inconsistent or they are not made in contravention of the Fundamental Rights”.
It was made to protect those parts of Law which does not abridge or takes away
the Fundamental Rights, and have their Life filled with Spirit of its Maker and
to have the Power left to “confer the rights and duties”, which does stand foul
of the Fundamental Right. Henceforth, to say that it makes a Law Still Born,
goes directly against the Intent of this Article, as its place in Draft
Constitution.
After arguing from textual point of view, I
shall argue on the Firm Juristic Argument of Hans Kelsen, a Great Jurist of
Norms.
HANS KELSEN- THE
JURISITC SENSE OF NORMS
Hans
Kelsen allow the Juristic perception of Law, as a sense of Norm, wherein he
profoundly states that,
“Law is an order of
Human Behaviour. Further, Law is also a ‘Norm’, which is the expression of the
idea that something ought to occur, especially that an individual ought to
behave in a certain way. By the norm, nothing is said about the actual
behaviour of the individual concerned. The Statement that an individual “ought
to” behave in a certain way means that this behaviour is prescribed by a norm-
it may be a moral or a legal or some other norm.
The “ought” simply
expresses the specific sense in which human behaviour is determined by norm. A
statement to the effect that something ought to occur is a statement about the
existence and the contents of a norm, not a statement about natural reality. A
norm expressing the idea that something ought to occur although it does not
occur is valid”.
This
show that the “the first part of the Article 13(2), is a Valid Norm, which
expect a certain kind of behaviour, the behaviour that the Law made shall or
ought to be in conformity with the Fundamental Rights.
Further,
Hans Kelsen also presents a relation between Norm and Act and how different act
considered in dynamic sense will also be validly considered as Legal Norm. He
states that,
“Not only the
execution of a Legal Norm, the enactment of the sanction which it stipulates,
but also all acts by which legal norms are created are such legal acts. An act
is a Legal Act precisely because it is determined by a Legal Norm”. Therefore,
“Law is made up of Legal Norms and legal acts as determined by these norms”.
“If we consider the process through which the Legal Order is created and
executed, then we see only the Law Creating and Law Executing Acts”.
Therefore, the words
“any laws made” justify the Juristic Idea that, these Laws are part of the
Legal Act, which have been allowed by the Legal Norm, of the Law being Made by
State and henceforth, can never be left of their Identity as Laws once Made,
will be Law forever, though validity is itself another matter that it to be
tested upon the Higher Norm validating such Laws, for the purpose of conferring
rights or imposing obligations.
Hans
Kelsen, now stipulates of the “Future Content” of the Laws in the Constitution,
where he states that,
“the Constitution here
is not understood not in a formal but in
a material sense. The Constitution in the material sense consist of those rules
which regulates the creation of the general legal norms, in particular the
creation of statues. It is because of the material constitution that there is a
special form of Constitutional Laws or a Constitutional Form”.
He
further remarks on the “Creating of Content of Law”, by stating that,
“the material
constitution may determine not only the organs and the procedure of Legislation
but also in some degree the content of
Future Laws. The Constitution can negatively determine that the Laws
must not have a certain content, e.g. that the Parliament may not pass any
statue which restricts religious freedom.” Further, “a
statue whose creation or contents did not confirm with the prescriptions
directly laid down in the Constitution could not be regarded as valid.”
Further,
the kelesenian Jurisprudence in the term Guarantees of the Constitution remark
that,
“the
so-called unconstitutional law is not void-ab-initio, it is only voidable and it can be annulled for
special reasons. The reason may be that the Legislative Organ has created the
statue in another way or has given it another content, than directly prescribed
by the Constitution”. The reason for which the Jurisprudence of Kelsen remarks
that it cannot be held void-ab-initio, must have our some Juristic Inquiry.
With
the Juristic Inquiry, the Jurisprudential Understanding must be understood in
context of “Nullity and Annullability of Norm”.
“A Legal Norm is
always valid, it cannot be nul but it can be annulled. The Legal Order may
authorize a special organ to declare a norm nul, that means, to annul the norm
with retroactive force, so that the legal effects, previously produced by the
norm may be abolished. There are, it true, cases where something which present
itself as a norm is no norm at all, is nu lab initio, cases of absolute nullity
characterized by the fact that no legal procedure is necessary to annul them.
These cases, however lie beyond the Legal System.”
Further,
Kelsen remarks that,
“If the legal order should determine such
conditions on which something which presents itself as a norm is nu lab initio
so that it need not be annulled in a legal procedure, the legal order would
still have to determine a procedure the purpose of which is to ascertain
whether or not thses conditions are fulfilled in a given case, whether or not
the norm in question has really been issued by an incompetent organ or by an
individual not competent to issue legal norms.
The decision made by
the competent authority that something that presents itself as a norm is null
ab initio because it fulfils the conditions of nullity determined by the legal
order, is a constitutive act, it has a definite legal effect; without and prior
to this act the phenomenon in question cannot be considered to be 'null'. Hence
the decision is not "declaratory", that is to say, it is not, as it
presents itself, a declaration of nullity; it is a true annulment, an annulment
with retroactive force. There must be something legally existing to which this
decision refers, hence, the phenomenon in question cannot be something null ab
initio, that is to say, legally nothing. It has to be considered as a norm
annulled with retroactive force by the decision declaring it null ab initio.
Just as everything King Midas touched turned into gold, everything to which the
law refers becomes law, i.e., something legally existing. The case of absolute
nullity lies beyond the law"
Therefore,
after stating the Juristic Conception of the “Absolute Nullity, as a “Still
Born Law” or “Nullity from Inception”, is that characteristic of Nullity that
lies beyond the Law, as a matter of Juristic Thinking. Henceforth, Where an
enactment is unconstitutional in part but valid as to the rest, assuming of
course that the two portions are severable, it cannot be held to have been
wiped out of the statute book as it admittedly must remain there for the
purpose of enforcement of the valid portion thereof, and being on the statute
book, even that portion which is unenforceable on the ground that it is
unconstitutional will operate proprio vigore when the Constitutional bar is
removed, and there is no need for a fresh legislation to give effect thereto.,
for the reason being that it is a ‘Law which has been Made by the Legislature,
that has been recognised as Legal Norm’.
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