Pre-Constitutional & Post Constitutional Laws : Case Laws
Pre-Constitutional & Post Constitutional Laws
1. Deep Chand Vs State of UP
In Deep Chand Vs State of UP AIR. 1959 SC 648, the Supreme Court of India held that a Post-constitutional laws made under Art. 13 (2) which breach/violate any of the fundamental right is nullity from its inception and a still-born law. It is void-ab-initio. The doctrine of eclipse doesn’t apply to post-constitution laws and therefore a successive constitutional amendment cannot revive it.
However, the Minority expressed the view that the doctrine of eclipse is applicable even to post Constitution law.
2. Mahendra Lal Jain Vs State of U.P.
In Mahendra Lal Jain Vs State of U.P A.LR 1963 S.C 1019 , the Supreme Court approved the majority view expressed in Deep Chand’s Case and held that the doctrine of eclipse applies only to pre-Constitution law under Art 13 (1) and not to Post-Constitution law under Art 13 (2).
There is a clear distinction between a pre-Constitution law and a post-Constitutional law. The kindness of the pre-Constitution law is not from its inception but only from the date of the commencement of the Constitution.
On the other hand, the kindness of a post-Constitutional law is from its very inception and such a law cannot therefore exist for any purpose.
3. State of Gujarat Vs Ambica Mills
In State of Gujarat Vs Ambica Mills, AIR 1974 S.C 1300, the Supreme Court modified its view as expressed in Deep Chand and Mahendra Lal Jain cases and held that post-Constitution law which is consistent will the fundamental Rights” not nullity or non-existent in all cases and for all purposes. The doctrine of absolute nullity is not a universal rule and there are many exceptions to it.
In addition , A post-Constitution law which takes away or abridge the right conferred by Art 19 will be operative as regards to non-citizens because void and non existent only against citizens as fundamental rights are conferred on them.