Bhikaji Narain Dhakras v. State of Madhya Pradesh

A pre-Constitution law let Madhya Pradesh take over the motor transport business, shutting out private stage-carriage operators. That law became void in 1950 for clashing with a Fundamental Right. Parliament then amended the Constitution to remove the clash. The Supreme Court had to decide whether the old law, once void, could come back to life without being re-enacted.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Bhikaji Narain Dhakras and others — petitioners; stage-carriage bus operators of Madhya Pradesh, holding permits for a considerable number of years, whose routes the State proposed to take over.

State of Madhya Pradesh and another — respondents; the Provincial (State) Government that enacted the amending law and issued the notification taking over bus routes.

Procedural History

1. The petitioners did not go through any lower court. They came directly to the Supreme Court under Article 32 of the Constitution, by five writ (a court's formal order) petitions for the enforcement of their Fundamental Rights: Petitions Nos. 189 to 193 of 1955.
2. 4 February 1955: before the petitions were filed, the State issued the notification (challenged in these petitions) under the new section 43(1)(iv) of the Motor Vehicles Act, 1939, declaring its intention to take over certain bus routes.
3. 27 May 1955: the five petitions were filed, about a month after the Constitution (Fourth Amendment) Act, 1955 came into force.
4. The five petitions were heard together, since they raised the same question about the constitutional validity of the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948).
5. 29 September 1955: the Supreme Court delivered a single judgment disposing of all five petitions, delivered by Das, Actg. C.J. for the Bench.

Facts

1. Each petitioner had for a considerable number of years carried on business as a stage-carriage operator, under a permit granted under section 58 of the Motor Vehicles Act, 1939 (Central Act IV of 1939).
2. Section 58, before amendment, fixed a permit's period at not less than three and not more than five years, and gave a renewal applicant preference over new applicants, other things being equal.
3. The C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948) made far-reaching changes to the 1939 Act as it applied to Central Provinces and Berar. Section 9 of the amending Act inserted a new section 58-A. Together, the amendments gave the Provincial Government power to:
   • fix fares or freights throughout the province or for any area or route;
   • cancel any permit after three months' notice, on payment of compensation;
   • declare its intention to itself run the road transport business, wholly or partly excluding other operators;
   • shorten a permit's period below the statutory minimum; and
   • direct that a permit be granted to the Government or to an undertaking in which the Government was financially interested.
4. At the date the amending Act was passed (1948), there were no Fundamental Rights, and it was conceded that the amending Act was then a perfectly valid law, within the Provincial Legislature's competence.
5. By the date of these petitions, two motor transport companies — C. P. Transport Services Ltd. and Provincial Transport Co. Ltd. — held about 85 per cent of their share capital with the State of Madhya Pradesh and the Union of India. Since the petitions were filed, the State bought out these companies entirely and ran their services itself on some routes.
6. 26 January 1950: the Constitution commenced. Article 19(1)(g) guaranteed citizens the freedom to practise any profession or carry on any occupation, trade or business, subject to reasonable restrictions permitted by Article 19(6) as it then stood.
7. The amending Act, being an existing law inconsistent with Article 19(1)(g), was prima facie (on the face of it, without going further) an infraction of that right. It was, unless saved by clause (6), void under Article 13(1). In an earlier case, Shagir Ahmad v. The State of U.P. & Others, this Court had held a similarly worded U.P. transport-monopoly law void as an unreasonable restriction, not saved by clause (6) as it then stood.
8. 18 June 1951: the Constitution (First Amendment) Act, 1951 came into force. It substituted a new, retrospective clause (2) of Article 19. It separately amended clause (6) of Article 19, not made retrospective, to add that nothing in Article 19(1)(g) affects a law letting the State carry on any trade, business, industry or service, wholly or partly excluding citizens.
9. 4 February 1955: acting under the newly inserted section 43(1)(iv), the State issued the notification declaring its intention to take up the petitioners' bus routes.
10. 27 April 1955: the Constitution (Fourth Amendment) Act, 1955 came into force. It substituted a new clause (2) of Article 31 and inserted clause (2-A), and also amended Article 31-A.
11. 27 May 1955: the petitioners filed these five writ petitions under Article 32, challenging the amending Act and the notification.

Issues Raised

1. Once the C.P. & Berar Motor Vehicles (Amendment) Act, 1947 became void under Article 13(1) as inconsistent with Article 19(1)(g) (following Shagir Ahmad v. The State of U.P.), was it permanently dead, or could it become operative again once a later constitutional amendment removed that inconsistency, without being re-enacted?
2. What does the word "void" mean in Article 13 — void for all purposes, for all times and for all persons, or void only to the extent of the inconsistency with the Fundamental Right in question?
3. Did the amending Act also infringe the petitioners' right to property under Article 31(2), and, if so, did the Constitution (Fourth Amendment) Act, 1955 cure that infringement?
4. Was the amending Act invalid even before the Constitution, for conflict with section 299 of the Government of India Act, 1935?

Arguments Contended

For the petitioners

1. On the authority of Shagir Ahmad v. The State of U.P. & Others, [1955] 1 S.C.R. 707, the amending Act had already become void under Article 13(1) as inconsistent with Article 19(1)(g). Being void, it was dead and could not be vitalised by a later constitutional amendment removing the inconsistency; it had to be re-enacted. Reliance was placed on Prof. Cooley's Constitutional Limitations, Vol. I, p. 384, a note referred to in the Court's own judgment in Shagir Ahmad's case, and on similar authorities.
2. Even if the Article 19(1)(g) point failed, the amending Act separately infringed Article 31(2). It deprived the petitioners of their property — the right to ply motor vehicles for gain, an interest in a commercial undertaking — again relying on Shagir Ahmad's case.
3. The amendments to Article 19(6) and to Article 31 were not made retrospective and so could not validate the amending Act as against the petitioners.
4. (Raised for the first time before this Court.) The amending Act was invalid even before the Constitution came into force, being in conflict with section 299 of the Government of India Act, 1935.

For the respondents

1. Although the amending Act became void under Article 13(1) on the authority of Shagir Ahmad's case, the Constitution (First Amendment) Act, 1951 removed that inconsistency by amending clause (6) of Article 19 to permit a State monopoly in trade, business, industry or service. The amending Act therefore became operative again, even against citizens.
2. The meaning of "void" in Article 13 is settled by the majority decision in Keshavan Madhava Menon v. The State of Bombay, [1951] S.C.R. 228: a law becomes void only to the extent of its inconsistency with a Fundamental Right, not for all purposes.
3. The Constitution (Fourth Amendment) Act, 1955, by inserting clause (2-A) in Article 31, removed any inconsistency with Article 31(2) as well, since the amending Act did not provide for transferring ownership or the right to possession of any property to the State.
4. The present petitions, filed on 27 May 1955 — a month after the Fourth Amendment came into force on 27 April 1955 — could not be used to challenge the amending Act's validity from that date onward.

Court's Reasoning

The judgment is a single opinion, delivered by Das, Actg. C.J. for the whole Bench. The report does not number its paragraphs, so no paragraph numbers are given.

Das, Actg. C.J. (for the Court)

1. Noted: the meaning to be given to the word "void" in Article 13 is no longer res integra (an open question), because the majority decision in Keshavan Madhava Menon v. The State of Bombay has already settled it. The Court must apply the ratio decidendi (the reasoning that decided the case) of that decision to the facts of this case.
2. Held: a law does not become void under Article 13 in toto, for all purposes, for all times or for all persons. It is void only "to the extent of such inconsistency" with the Fundamental Right it conflicts with.
3. Held: Article 13(1), by its own language, cannot be read as wiping out the whole operation of the inconsistent law. Such a law stays in force for past transactions and for rights and liabilities that accrued before the Constitution, and it continues to bind persons who are not citizens and so cannot claim the Fundamental Right.
4. Held: the true position is that the impugned law became eclipsed, for the time being, by the Fundamental Right. In plain words, the inconsistent law is overshadowed and dormant, but it is not dead.
5. Held: Shagir Ahmad v. The State of U.P. & Others and Behram Khurshed Pesikaka v. The State of Bombay are distinguished and held inapplicable. Why: neither decision considered or decided what happens once a later constitutional amendment removes the very inconsistency that had made the law void; that question had not even been raised in either case.
6. Held: the effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow. It made the impugned Act free from all blemish or infirmity. Once Article 19(6) was amended to let the State create such a monopoly, the amending Act ceased to be inconsistent with Article 19(1)(g). It became revived and enforceable, without needing to be re-enacted.
7. Noted: unlike the retrospective amendment to Article 19(2), the amendment to Article 19(6) was not made retrospective. So no rights or obligations could be founded on the amending Act as against citizens between 26 January 1950 and 18 June 1951. From 18 June 1951 onward, the amending Act became immediately and fully operative even against citizens.
8. Held: the notification of 4 February 1955, taking over the bus routes under the new section 43(1)(iv), was issued when it was perfectly constitutional for the State to do so, since the amending Act had already revived by then.
9. Held: the American authorities relied on by the petitioners, on laws that are void ab initio (void from the very start) and "still born", are inapplicable. Why: those authorities speak only of post-Constitution laws that were never validly born. They cannot control the construction of Article 13, which, by its own express words, voids an inconsistent law only to the extent of the inconsistency, not for every purpose. Such a law was not dead. It remained operative against non-citizens and for pre-Constitution rights and liabilities, and lay only dormant against citizens.
10. Held: on the Article 31(2) point, the Constitution (Fourth Amendment) Act, 1955 inserted clause (2-A). It says that a law not transferring ownership, or the right to possession of property, to the State is not deemed to provide for compulsory acquisition or requisitioning at all. The amending Act, not providing for any such transfer, was saved by this clause.
11. Held: the present petitions were filed on 27 May 1955, a month after the Fourth Amendment came into force on 27 April 1955. So, on a parity of reasoning with the Article 19(1)(g) point, the petitioners could not be permitted to challenge the amending Act's constitutionality from that date onward.
12. Noted: on the point raised under section 299 of the Government of India Act, 1935, the Federal Court, in Rao Bahadur Kunwar Lal Singh v. The Central Provinces and Berar, and in the decisions referred to in Rajah of Bobbili v. The State of Madras, had given the word acquisition in section 299 only the limited meaning of an actual transfer of ownership. This Court, by contrast, had given acquisition under Article 31(2) a wider meaning, in Subodh Gopal Bose's case.
13. Held: it was, therefore, not at all clear that the amending Act conflicted with section 299. This objection had also not been taken, or even hinted at, in the petitions, and could not be permitted to be raised at this late stage.
14. Held: the result is that the petitions must be dismissed. In the circumstances of the case, no order as to costs.

Authorities

• Keshavan Madhava Menon v. The State of Bombay ([1951] S.C.R. 228): majority decision relied on for the meaning of "void" in Article 13 — void only to the extent of the inconsistency.
• Shagir Ahmad v. The State of U.P. & Others ([1955] 1 S.C.R. 707): the Court's own earlier decision striking down a similar transport-monopoly law; distinguished and held inapplicable, since it did not decide the effect of a later curing amendment.
• Behram Khurshed Pesikaka v. The State of Bombay ([1955] 1 S.C.R. 613): distinguished for the same reason as Shagir Ahmad's case.
• Rao Bahadur Kunwar Lal Singh v. The Central Provinces and Berar ([1944] F.C.R. 284): Federal Court decision cited for the narrow meaning of acquisition under section 299, Government of India Act, 1935.
• Rajah of Bobbili v. The State of Madras ([1952] 1 M.L.J. 174): cited to the same effect as Rao Bahadur Kunwar Lal Singh.
• Subodh Gopal Bose's case ([1954] B.C.R. 587, as printed in the source text): cited for the wider meaning given to acquisition under Article 31(2), by contrast with section 299.

Provisions mentioned

• Article 13(1) and (2): a pre-Constitution law inconsistent with Part III is void to the extent of the inconsistency; the State may not make a law that takes away or abridges a Part III right.
• Article 19(1)(g): the Fundamental Right to practise any profession or carry on any occupation, trade or business.
• Article 19(6), before the First Amendment: saved only existing or future laws imposing, in the public interest, reasonable restrictions on the Article 19(1)(g) right, or prescribing professional or technical qualifications.
• Article 19(6), after the First Amendment (1951): also saves a law letting the State, or a State-owned or controlled corporation, carry on any trade, business, industry or service, wholly or partly to the exclusion of citizens.
• Article 31(2), before the Fourth Amendment: protected against deprivation of property, requiring a law providing compensation.
• Article 31(2), after the Fourth Amendment (1955): property can be compulsorily acquired or requisitioned only for a public purpose and by a law providing compensation.
• Article 31(2-A), inserted by the Fourth Amendment (1955): a law that does not transfer ownership or the right to possession of property to the State is not deemed to provide for compulsory acquisition or requisitioning at all.
• Article 31-A: also amended by the Constitution (Fourth Amendment) Act, 1955, though not elaborated on in this judgment.
• Article 32: the provision under which the petitioners came directly to the Supreme Court to enforce their Fundamental Rights.
• Section 58, Motor Vehicles Act, 1939: before amendment, fixed a stage-carriage permit's period at three to five years and gave a renewal applicant preference.
• C.P. & Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948): the impugned Act. It amended sections 43(1) and 58, and inserted section 58-A (see Facts).
• Section 43(1)(iv), Motor Vehicles Act, 1939 (as inserted): the power under which the 4 February 1955 notification, taking over the petitioners' bus routes, was issued.
• Section 299, Government of India Act, 1935: the pre-Constitution provision on compulsory acquisition of property, corresponding to Article 31.

Judgement

1. All five writ petitions (Nos. 189 to 193 of 1955) are dismissed.
2. In the circumstances of the case, no order as to costs.

Legal Principle / Ratio

The word "void" in Article 13 does not mean void for every purpose. A pre-Constitution law inconsistent with a Fundamental Right is only eclipsed — overshadowed and dormant, not dead — for as long as the inconsistency lasts, and it stays in force against non-citizens and for pre-Constitution rights and liabilities. If a later constitutional amendment removes the inconsistency, the law revives automatically and binds citizens too, without needing to be re-enacted. As the Court put it: "the impugned law became, as it were, eclipsed, for the time being, by the fundamental right."

Critical Analysis

Analysis based on the judgment text.

• The judgment settles what happens to a pre-Constitution law under Article 13(1) once an amendment removes the inconsistency, but it does not say anything about a post-Constitution law under Article 13(2). That separate question was left open here and answered only in a later case.
• The Court does not lay down any test for how long a law may lie eclipsed. It also does not spell out in detail what happens to State or third-party dealings carried out while the law lay dormant against citizens. It only says, generally, that the law remained in force for non-citizens and past transactions throughout.
• The rejection of the petitioners' American authorities is stated as a short holding. It distinguishes post-Constitution laws, said to be still born, from pre-Constitution ones, without naming or examining any particular American decision.

Significance

This is the founding decision on the doctrine of eclipse in Indian constitutional law. It answers a question the Court had left open in Keshavan Madhava Menon's case: what happens when the very inconsistency that made a pre-Constitution law void is later removed by a constitutional amendment. By holding that such a law is merely eclipsed and revives automatically, the Court avoided forcing legislatures to re-enact every pre-Constitution law each time an amendment cured its constitutional defect. The Court is careful to confine this reasoning to laws that were validly made before the Constitution began, distinguishing them throughout from a law that would be void under Article 13(2) instead of Article 13(1).

Exam-Important Points

• Facts in one line: a pre-Constitution law let the State monopolise motor transport; it clashed with Article 19(1)(g) in 1950, and the Court had to decide whether a 1951 constitutional amendment removing that clash could bring the law back to life.
• Holding: a pre-Constitution law inconsistent with a Fundamental Right is only eclipsed, not dead. It revives automatically once the inconsistency is removed by a constitutional amendment, without re-enactment.
• Classic exam trap: this doctrine applies only to Article 13(1) (pre-Constitution laws). The judgment itself distinguishes this from a law void under Article 13(2), which it treats as a separate, unaffected category.
• Two different amendments cured two different defects here. The Constitution (First Amendment) Act, 1951 cured the Article 19(1)(g) problem by amending clause (6). The Constitution (Fourth Amendment) Act, 1955 separately cured the Article 31(2) problem by inserting clause (2-A).
• Watch the retrospective point: the amended Article 19(2) was made retrospective, but the amended Article 19(6) was not. So the law had no effect against citizens between 26 January 1950 and 18 June 1951, even though the amendment removing the inconsistency was itself passed on 18 June 1951.
• The "void" point traces back to Keshavan Madhava Menon v. The State of Bombay (1951): void under Article 13 means void only to the extent of the inconsistency, never void for all purposes.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.