Constitutionalism lies in certainty

Have you ever thought about what will happen if the law, under which you obtained permission to build a house, becomes illegal? If not, then this piece is for you.

Article 13(1) provides for the unconstitutionality of the laws made before the commencement of the Constitution of India. Article 13(2) provides for the unconstitutionality of the laws made after the commencement of the Constitution of India. The practical question that arises for Article 13(1) is— a law made before the commencement of the Constitution when gets declared unconstitutional after the commencement of the Constitution, whether the actions taken under that law when it was constitutional will also be declared as unconstitutional?  The Supreme Court answered the question in Keshavan Madhava Menon v. State of Bombay, AIR I95r SC 128 as:

130. "What Article 13 (1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. 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 necessarily arise on and from the date those rights came into being. It must follow therefore, that Article 13 (1) can have no retrospective effect but is wholly prospective in operation.

Therefore, any action taken (before January 26, 1950) under a pre-constitution law is constitutional, and therefore valid, although the said pre-constitution law has been declared as unconstitutional after Jan 26, 1950. This is because when the pre-constitution law was made neither there was the existence of the fundamental rights nor the current Constitution, and ergo, the lawmakers were not having any prescription of the Constitution while making the laws before January 26, 1950 therefore, they have not contradicted any part of the current Constitution in making the law. 

However, what will happen to the actions taken under the law which is made after the commencement of the Constitution, and has subsequently been declared as unconstitutional?   Article 13(2) answers this question and the Kerala High Court taking aid of Supreme Court's decisions in Chembakave Vadakkekkara Lakshmi... vs Nellisseri Gramam Narayanaswami..., AIR 1963 Ker 330 answered it as:

32. The observations above extracted, if I may say so with great respect, in my view, directly deal with a situation arising under Article 13 (2) in respect of what I may call the post-Constitution enactment. It is the view of the learned Judges that the rule of construction laid down by the American Courts in respect of such statutes declared void will have to be followed by Courts in India if any law is made after 26-1-1950 which is repugnant to the Constitution. That is, according to the learned Judge, such post-Constitution statutes, which are repugnant to the fundamental rights guaranteed under the Constitution, must be considered to be void from its birth and anything done under it should also be considered to be void.

Therefore, any action taken under a post-constitution law that has subsequently been declared as unconstitutional is also unconstitutional, and therefore, invalid because the lawmakers were aware of the prescription of the current Constitution while making the law, and ergo, have contradicted the Constitution. However, only the Supreme Court, under Article 142, has the power to protect past actions while declaring a law as unconstitutional. The Supreme Court in The State of Manipur & Ors. v. Surjakumar Okram & Ors., summarized as under:

23. iii. 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.

The Supreme Court protected the past actions undertaken under West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) despite declaring the Act as unconstitutional. (See paragraph 83 of the case- Forum for People's Collective Efforts (FPCE) & Anr v The State of West Bengal & Anr,). 

There is a difference between the lawmakers striking down a law and the courts declaring a law as unconstitutional. The lawmakers by a repealing Act can repeal a law by providing a saving clause protecting all the past actions undertaken under the act that is repealed, and if no saving clause is there then Section 6 of the General Clause Act, 1897 will protect the said past actions. However, Supreme Court has held that if the repealed law is unconstitutional then the lawmakers cannot protect the past actions undertaken under that repealed unconstitutional law by providing a saving clause, but in such a situation only the Supreme Court can protect the past actions undertaken under an unconstitutional law that it did in The State of Manipur & Ors. Versus Surjakumar Okram & Ors.  In this case, the Manipur state’s lawmakers passed an Act of 2018 repealing the Act of 2012 due to the latter Act being unconstitutional; however, the repealing Act of 2018 provided a saving clause protecting all the past actions undertaken under the unconstitutional Act of 2012. The Supreme Court held that when the Act of 2012 itself is unconstitutional, then lawmakers cannot protect any action undertaken under the said Act of 2012, however, the court under Article 142 protected all the past actions undertaken under that Act of 2012 for doing ‘complete justice’. Hence, the amending power of Article 368 is less powerful than the justicial power under Article 142. Hence, the lawmakers cannot undo unconstitutionalism but the apex court of this land can. (See paragraphs no 20, 24, and 25 of The State of Manipur & Ors. Versus Surjakumar Okram & Ors).