P L D 1959 (W (PLP)

(a) Laws (Continuance in Force) Order (Post‑Proclamation No. 1 of 1958) Art. 4 (1)‑Laws "in force in Pakistan . . .immediately before the Proclamation "‑Enactments rendered void by Articles of the abrogated Constitution (1956) relating to Fundamental Rights‑Do not continue to be in force‑Constitution of Pakistan (1956); Art.

4. The petitioner challenged an order passed against him under section 13 (2) of the Karachi Control of Disorderly Persons Act of 1952. One of the grounds of attack was that section 13 was inconsistent with the fundamental 'rights contained in the late Constitution and was therefore void. The question was whether the enactments rendered void by the Articles relating to fundamental rights in the late Constitution were now in force in Pakistan. The Full Bench answered the question in the negative. Per Kayani, C. J.‑What (the President) wanted to resuscitate [by Art. 4 (1), Laws (Continuance in Force) Order (I of 1958)] was that which, was good law, that which was "in force" as law, and nothing can be in forge which is void. When a law is declared void, it ceases to exist altogether. It is not permissible to import degrees of ineffectuality into the meaning of the term void. A law is either void or not void, and it may in some cases be void able. But to say that it is not void in toto or not void for all purposes or for all times or for all persons is to introduce laxity and vagueness into the meaning of a well‑recognized and perfectly definite expression. With reference to observations in Bhikaji Narain v. State of Madhya Pradesh (A I R 1955 S C (Ind.) 781), to the effect that an existing law which was in contravention of a fundamental right was only under an "eclipse" "for the time being" and that a law of the post‑Constitution "period which contravened a fundamental right was "still born" His Lordship observed "I think we should face a void as a void and not resort to similes derived from birth or death "A simile, to be perfect", said Dr. Johnson, "must both illustrate and en‑noble the subject". The phenomenon of still‑born laws serves neither end. Nor does an eclipse describe a dormant law truly. An eclipse is a very transitory phenomenon, and the effect of a Fundamental Right, which is a permanent feature of modern Constitutions, on laws is far from ecliptic. It were better to say,, if we judged things by births and deaths, that such laws were in a state of coma. But they are not a state of coma ; they are just void. Per Kayani, C. J.‑"I wish to make it clear that we have heard the case on the assumption that the judgments of the Supreme Court in Constitutional Criminal Appeal No. 1 of 1958 (P L D 1958 S C (Pak.) 533) have not laid down any law on the particular point before us, although indirectly, if our finding is correct, the Frontier Crimes Regulation, with which their Lordships were concerned, would also be bad law. The question before the Supreme Court was whether the Fundamental Rights still existed, and whether, therefore, certain appeals pending before it had abated within the meaning of Article 2, clause (7) of the President's Order. The effect of the Fundamental Rights during their operative period on laws incompatible with those Rights was not examined, and we would be depriving ourselves of the benefit of their Lordships' opinions on the present case if we merely applied to it the indirect effect of their previous judgments which were delivered in respect of a different situation." State v. Dosso P L D 1958 S C (Pak.) 533 ; Keshavan v. State of Bombay A I R 1951 S C 128 (minority view) Saghir Ahmad v. State of U. P: A I R 1954 S C 728 and Trumap v. U. S. A. 256 U S 232 ref. Bhikaji Narain v. State of Madhya Pradesh A I R 1955 S C 781 dissented from. Per Kaikaus, J.‑Article 4 of the President's Order continues the laws that existed before the Proclamation was made. At that time surely the laws that had been rendered void by the funda?mental laws were not in force. The intention, obviously, of Article 4 of the President's Order was to maintain the status quo to continue a state of things that existed before the Pro?clamation came into force. His Lordship summed up as follows:‑ (1) The question as to what is law in Pakistan today is to be decided only with reference to Article 4 of the President's Order of the 10th October 1958. (2) In accordance with that Article, it is only what was law immediately before the Proclaimation of the 7th October 1958 that is law in Pakistan today, and as the effect of withdrawal of fundamental rights could only come into existence after the Proclamation the effect of such withdrawal is irrelevant for determining what is law in Pakistan. (3) The effect of the first and second clauses of Article 4 of the late Constitution was not different and the existing laws altogether disappeared as laws. Per Kaikaus, J.‑"At the end of his arguments, the learned Attorney‑General referred to two cases decided by their Lordships of the Supreme Court of Pakistan, the actual decisions of which were not consistent with the view that fundamental rights affect "existing laws". In neither of the two cases was the question before us raised. The mere fact that our answer would not be consistent with the actual decision in those cases does not relieve us of the duty of answering the question referred to us. If in such circumstances we regarded a matter as concluded the result would be that we would be deprived of the most valuable ex?position of the law on the point in dispute by their Lordships." Cooley's Constitutional Limitations Vol. I (Edn. VIII); South Australia v. The Commonwealth Common wealth L R Vol. 65, 373 p. 408 ; Saghir Ahmad v. State of U. P. A I R 1954 S C (Ind.) 728 ; Truman H. Newberry v. United States of America 256 U S 232 and State v. Dosso P,L D 1958 S C (Pak.) 533 ref. Bhikaji Narain Dhakras v. State of Madhya Pradesh A I R 1955 S C (Ind.) 781 dissented from. A I R 1952 Pb. 55 ; A I R 1952 Pb. 417 and A I R 1953 Mad. 729 considered. Crowford's Statutory Constitution para, 117. (b) Constitution of Pakistan (1956) Art. 224 (2)‑Power of "adaptation" and "modification" does not imply a general power of legislation. The intention of clause (2) of Art. 224, Constitution of Pakistan, (1956) is not to empower the President to make amendments so as to bring the law in accord with fundamental rights. "Adaptation" and "modification" do not imply a general legislative power so as to authorise the President to legislate in any manner he liked in respect of an Act which had been rendered void by fundamental rights. If this was the intention, Article 4 would have been differently worded and would have contained a qualification as to power of the President. Clause (2) of Article 224 covers only laws which are continued in force by clause (1). Clause (1) does not continue in force enactments which are rendered void by Article 4 because it excepts what is expressly provided for and Article 4 is an express provision. Before Division Bench Before Full Bench ORDER OF REFERENCE KAIKAUS AND MUNSHI; JJ.‑In this writ petition Hashim the petitioner challenges an order passed against him, under section 13 (2) of the Karachi Control of Disorderly Persons Act of 1952. One of the grounds of attack is that section 13 is incon?sistent with the fundamental rights contained, in the late Constitution and is therefore void. A question arises, whether in spite of the fact that fundamental rights exist no more the validity of the laws enacted before the Proclamation of the 8th October 1958 is to be judged in accordance with the fundamental rights. The question is one of great general importance and we refer the following question to a Full Bench: (1) Whether the enactments rendered void by the Articles relating to fundamental rights, in the late Constitution are now in force in Pakistan. OPINION OF FULL BENCH KAYANI, C. J.‑The petitioner, Hasham, was declared a "dangerous disorderly person" under section 12 of the Karachi Control of Disorderly Rersons Act, 1952, and under section 13 (2) (a) the Tribunal directed him to report thrice daily at Mango Pir Police Post, sixteen miles from his residence at Keamari, the hours of reporting being 10 a.m., 2 p.m. and 8 p.m., and the only transport available being an indirect bus service which would take him about two hours each time to reach the police post. Whether this arrangement will make the petitioner a virtual internee, as his counsel contends, or assist his alleged profession of pickpocketing in buses, is not the most important question awaiting attention. The petitioner contended, when he filed this petition on the 25th of September 1958, that his fundamental right to carry on a lawful profession and his funda?mental right to move freely were violated by the Tribunal's order, and since the Constitution was abrogated in October, the question is whether certain enactments like the present Act which had become void by reason of conflict with some fundamental right, whether wholly or partly, were automatically brought back to life by the Laws (Continuance in Force) Order, 1958, which may, for shortness, be called the President's Order. The question referred to the Full Bench, therefore, is: Whether the enactments, rendered void by the Articles relating to Fundamental Rights in the late Constitution are now in force in Pakistan.

2. Article 4 (1) of the President's Order is as follows :‑ "Notwithstanding the abrogation of the late Constitution, and subject to any order of the President or Regulation made by the Chief Administrator of Martial Law, all laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, by‑laws, Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra?territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority."

2. Eliminating from it non‑relevant matter, it will read thus "All laws other than the late Constitution, * * * * * * in force in Pakistan * * * * * * * * * * immediately before the Proclamation, shall * * * * * continue in force until altered, repealed or amended by a competent authority."

4. It is contended for the petitioner that since according to Article four of the late Constitution the laws which existed on the advent of the Constitution had become void to the extent of inconsistency with any Fundamental Right, such parts of the Karachi Control of Disorderly Persons Act as were so inconsistent were not "laws * * * * in force in Pakistan * * * * * immediately before the Proelamatiort", within the meaning of Article 4 (1) of the President's Order. We are referring to Article 4 in both cases and, it is important that we avoid confusion.

5. On the other hand, the Attorney‑General contended for the State that the President's Order means that Fundamental, Rights no longer exist. The "laws in force" are laws which were on the statute book on the 7th of October 1958, the date of abrogation of the Constitution, and had not been repealed by any legislative authority. The President intended it obliterate the Fundamental Rights, so that they shall not affect existing and if this were his intention, we cannot attribute to him the intention to continue the laws subject to the Fundamental Right. He intended to keep alive even those portions which opposed the Constitution.

6. At this stage we asked the Attorney‑General whether a law which had been passed by a Provincial Assembly but which was beyond its legislative competency was also a law in force within the meaning of the President's Order because it was still on the statute book. He replied that being an incompetent law, it would not fall within the President's Order. At the same time, or perhaps a little later, he argued that the President's Order conferred additional competency on laws which were originally lacking in competence, partly or wholly, because there had been a revolution its Pakistan, and d revolution in the very nature of things alters the whole complexion of law, whether or not the new Government abrogates the old laws or. the old Constitution.‑ In this last argument he relied on a passage from Hans Kelsen's General Theory of Law and State (page 117‑118), quoted by the Chief Justice and Shahabuddin, J. in judgments of the Supreme Court delivered on the 27th of October 1958 in (Constitutional Criminal Appeal No. 1 of 1958.) The judgments have not so far been printed in any law report, (since printed as State v. Dasso (P L D 1958 S C (Pak) 533), and we are somewhat inconvenienced by the small print in which they appear in the Dawn on the 28th of October. The passage in question is this: "From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the Constitution and certain laws of paramount political significance,' putting other norms in their place. A great part of the old, legal order remains valid also within the frame of the new order. But the phrase `remains valid', does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created, in the ,way the old Constitution prescribed. That Constitution is no longer in force; it is replaced by a 'new Constitution which is not the result of a Constitutional alteration of the former. If laws which are 'introduced under the old Constitution continue to be valid under the new Constitution this is possible only' because validity has expressly or tacitly been vested in 'them by the new Constitution. "The laws which, in the ordinary inaccurate parlance, continue to be valid are, from a juristic view point, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity is the new, not the old, Constitution, and between the two continuity holds neither from the point of view of the one nor from that of the other. Thus it is never the Constitution merely but always the entire legal order that is changed by a revolution. "This shows that all norms of the old order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure."

7. The Supreme Court judgments based on Hans Kelsen the view that the October Revolution having been successful, it had become "a basic law‑creating fact", and the President's Order was "a new legal order" in accordance with which the validity of laws must be determined; but the Attorney‑General went a little further in his reliance on Hans Kelsen and argued that when the President was enacting Article 4 (1); he was thinking only of the "contents" of the old laws because juristically they did not exist. The argument is attractive, and the more I think of it, the more does its subtlety attract me, but the subtlety and the attraction are juridical, and when 1 place myself in the President's seat, juristically I mean‑I find it difficult to think that he was thinking of Hans Kelsen, unless the Attorney‑General had read out to him this passage. But if he is to be deemed to be thinking juristically, then whatever words he has used must have full force, and the words he uses merely show that while he was not reviving the Constitution, lie was reviving all the laws that were in force before the Proclamation, not before the Constitution Day. That he was not particularly reviving the Fundamental Rights is clear enough, because those Rights are included in' the Constitution, and so much has now been laid down by the Supreme Court also in the case cited above. Incidentally, the statement of the Attorney? General that by Article 4 (1) of his Order the President intended to abrogate the Fundamental Rights is chronologically wrong, for that intention had been put into effect three days earlier by the abrogation of the Constitution. The further argument built on that intention‑that he could not have intended to continue the existing laws subject to the Fundamental Rights‑loses itself in a circle, for it brings us back to the question: What are the existing laws ? It is not the petitioner's case that the existing laws are subject to the Fundamental Rights ; the case is that existing laws are laws as they stood on the date of the Proclamation, and if they have suffered a change by their impact with the Constitution before that date, they exist only in their changed condition.

8. The Attorney‑General's case at its best would be that if the laws thus affected have not been removed from the statute ‑book, they are revived in their printed condition. But in the case of laws beyond the competency of the Legislature he did not attach sanctity even to their printed condition. Consequently, no sound and consistent argument can be based on printed condition and preservation on the statute book. Particularly so, when the next argument, which is grounded on additional competency conferred by the revolution, conflicts with it. If the laws which have been revived derive competency from the new legal order, as they do, then the mere mention of a law, which was initially beyond legislative competency, in the President's Order enforces it as a competent law. But that will not be correct, and to attribute that intention to the President will not be correct. What he wanted to resuscitate was that which was good law, that which was "in force" as law, and nothing can be in force which is void.

9. Tie matter for decision, therefore, is : How did Article four of the late Constitution affect the laws which were inconsistent with the Fundamental Rights'? Article four is as follows :‑ "4. ‑ (1) Any existing law, or any custom or usage having the force of law, in so far as it is 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 in contravention of this clause shall, to the extent of such contra?vention, be void." It is unnecessary to reproduce clause (3).

10. I hold, with great respect to any contrary opinion, that when a law is declared void, it ceases to exist altogether. The Attorney‑General says it has the meaning of "repealed" only, and he relies on the majority judgment of the Supreme Court of India in Keshavan v. State of Bombay (A I R 1951 S C 128). I have followed the minority view when deciding the case of Muhammad Bashir v. Province of West Pakistan (P L D 1958 Lah. 853), which was heard by 'a Full Bench, and my reasoning was that if section 6 of the General Clauses Act was to be applied, the case must be expressly one of repeal, and it is not enough that it should be analogous to repeal. When the Legislature repeals an amendment, it does so consciously, but when it says in a particular statute that any existing law which is inconsistent with that statute shall be void to the extent of inconsistency, it is contemplating a possible conflict, and is not necessarily contemplating a repeal and, therefore, the contemplation of arty saving clause is out of the question.

11. When the Attorney‑General says that a void Act is on the same footing as a repealed Act, he clearly means that the con?sequences of avoidance are not so drastic as they would be if we thought that "it is as though it had never been". But what is the effect of treating it as a repealed enactment ? According to section 6 of the General Clauses Act, the repeal shall not affect its previous operation, or affect any right acquired or liability incurred, or affect any investigation or legal‑ proceeding which is pending. Then how do these provisions help the Control of Disorderly Persons Act ? We are not questioning its previous operation or any proceeding which may have been pending on the Constitution Day. An Act repugnant to the Constitution could have survived in certain circumstances if the effect of repugnancy had been stated in Article four to be to render it voidable, not void.

12. But the Attorney‑General agrees that if any law repugnant to the Constitution had been made after the Constitution Day, it would be entirely void under clause (2) of Article four, and it would not be a law which the President's Order contemplated as being in force. If this is conceded, I do not see how the laws falling under clause (1) can be treated differently, because in both cases the effect of repugnancy is stated in identical terms : such laws shall be void, in the first case to ‑the extent of inconsistency, in the second to the extent of contra?vention. I‑think the Attorney‑General was right in conceding that if the case falls under clause (2), there is no saving, for a law that was enacted in contravention of Fundamental Rights after the C6nstitution Day was a law beyond the competency of the Legislature, and such laws are obviously void, even if they exist on the statute book ; for whenever their incompetency is discovered, they are treated as though they had never been. Nobody then says that if any duty or tax has been realized by Government in pursuance of such an Act, it is not refundable because the previous operation of the Act is not affected. Subject to the law of Limitation, it is recoverable from the Government. If that be so, the effect of avoidance is more far‑reaching than the effect of repeal, where the previous operation of an Act cannot be challenged. But legislative incompetency is not on a higher level than repugnancy to a Fundamental Right. In the last resort they are both martyrs to unconstitutionality, both opposed to one provision of the Constitution or another. But the question hanging on clause (2) of Article four is more limited: if the word "void" has a drastic meaning in clause (2), why is it less drastic in clause (I)‑unless it could be argued that the Constitution was more gentle in its dealing with old laws, as though there were backward classes.

13. What would happen if clause (I) of Article 4 read thus: "Any existing law, in so far as it is inconsistent with the exercise of a Fundamental Right, shall, to the extent of incoticistency, stand repealed"'1 Could it then be said that although they stood repealed on the Constitution Day, they were in force at the time of the Proclamation ? The question needs no answer, and if the effect of saying that such laws "shall be void" is that such laws have been repealed, as the Attorney‑General argues, and the Indian, rulings say, then let tile words "stand repealed" take the place of "be void".

14. Next, visualise an Act which has a single provision, and that provision is unconstitutional, and the Courts find that "this Act is inoperative" because it opposes a Fundamental Right such as the Right of free speech. Then is it a law "in force" because Parliament has‑ not expressly replaced it, and does it lie dormant in the hope that there will be a revolution some day and the President or some other person in new authority will obliterate the Constitution 7 fit that case, we would be assuming that the Constitution contemplated a possible revolution or at least an abrogation thereof.

15. For the President, it was perfectly easy to provide that notwithstanding any judgment of the High Court or Supreme Court, or notwithstanding the existence of any Fundamental light in the past, all laws which had become void by the operation of those Rights shall come into force from the date of' the Proclamation, and this was done by Regulation No. 1, dated the 23rd of October 1958; in respect of the Frontier Crimes Regulation: "Notwithstanding anything to the contrary in the late Constitution or any ruling of any Court, the provisions of the Frontier Crimes Regulation 1901, shall be deemed as valid and in full force with effect from the 8th October 1958." As another instance, in clause (7) of Article 2 of the President's Order it was expressly provided that no writ which had been issued by the High Court after the Proclamation was valid "unless it is provided for by this Order".

16. So far as Indian authorities go, the Attorney‑General principally relied on Bhikaji Narain v. State of Madhya Pradesh (AIR 1955 S C 781),where the question was whether a certain Motor Vehicles Act, which had become partly void by reason of inconsistency with Article 19 (1) (g) of the Indian Constitution‑‑the right to pursue any trade or occupation, subject to reasonable restrictions in the public interest‑became valid by a subsequent amendment of the Constitution, which made it possible for . Government to exclude all private motor transport operators from the field of transport business. Das, Acting C. J., delivering the judgment of the Court, observed that "the law became void, not in toto or for all purposes or for all times or for all persons, but only `to the extent of such inconsistency' ". And again, "Article 13 (1) had the effect of nullifying or rendering the existing law which bad become incon?sistent with Article 19 (1) (g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution". But if an Act is void by reason of legislative incompetency, then it will not improve matters, if we say that it is ineffectual only with reference to the legislative power of the Assembly. With respect, it is not permissible to import degrees of ineffectuality into the meaning of the term void. A law is either void or not void, and it may in some cases be voidable. But to say that it is not void in toto or not void for all purposes or for all times or for all persons is to introduce laxity and vagueness into the meaning of a well‑recognized and perfectly definite expression. Take, for instance, the observation that it is not void for all persons. If thi's means that it is void for the person who obtains relief ‑from the Court‑and I think I heard some argument to this effect ?then we have to pronounce in the case of each individual dis?orderly person that the Act is void. And each time that we say the procedure is repugnant to the Constitution, the police repeat the repugnant procedure in each new case, relying on the fact that the law has not become void for all persons.

17. Then there is the following observation :‑ "The true position is that the impugned law became, as it were, eclipsed for the time being by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or infirmity. If that were not so, then it is not intelligible what `existing law' could have been sought to be saved from the operation of Article 19 (1) (g) by the amendment of clause (6) in so far as it sanctioned the creation of State monopoly, for, ex‑hypothesi, all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of clause (6) as it then stood."

18. Had the argument been based on the last sentence alone, the answer would be simple. The term `existing law' is defined as any Act having the force of law immediately before the Constitution Day, and as the Constitution (First Amendment) Act, 1951, of India had such a Motor Vehicles Act in mind, no other expression required to be used. The only thing that the amending Act did not visualise was that the Motor Vehicles Act bad become void by the Constitution as it stood before the amendment. So much had indeed been said by the Supreme Court of India itself in an earlier case, Saghir Ahmad v. State of U. P. (AIR 1954 S C 728), by a Bench of Mr. Justice Das was also a member and whose judgment was delivered by B. K. Mukerjea, J. in the following words:‑ "The amendment of the Constitution, which came later, cannot be invoked to validate an earlier legislation which must ' be regarded as unconstitutional when it was passed., As Professor Cooley has stated in his work on Constitutional Limitations, vide Volume 1, page 384 note, `a statute void for unconstitutionality is dead and cannot be vitalised by a subse?quent amendment of the Constitution removing the constitutional objection but must be re‑enacted.' We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental, right of the appellants under Article 19 (1) (g) of the Constitution and is not shown to be protected by clause (6) of the Article, as it stood at the time of the enactment, must be held to be void under Article 13 (2) of the Constitution."

19. Mr. Justice Das said that " this question was not considered by this Court in Saghir Ahmad's case, for it' was there conceded (see pages 735‑36 of the report) that the validity of the U. P. Act, which in this respect was similar to the C. P. and Berar Act now under consideration was not to be decided by applying the provisions of the amended clause (6)". I notice, however, that what is conceded at page 735 of the Report in Saghir Ahmad's case is that the provision enabling the State to carry on any trade or business to the exclusion of private citizens had been made in the Constitution after the impugned Act had come into force. "It is not disputed", says the report in para (15) subpara. (2), "that the third provision which was introduced by the amendment of the Constitution in 1951, was not in existence when the impugned Act was passed, and the High Court rightly held that the validity of the Act is not to be decided by applying the provision of the new clause".

20. In respect of the American authorities like Cooley, Das, Acting, C. J., observes that these authorities " refer only ,to post‑Constitution laws which were inconsistent with the provisions of the Constitution. Such laws never came to life, but were still‑born as it were * * * * *‑. But apart from this distinction between pre‑Constitution and post-Constitution laws, on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provision of Part Ill of our Constitution, are, by the express provision of Article 13, rendered void `to the extent of such inconsistency.' Such laws were not dead for all purposes. They existed for the purpose of pre‑Constitution rights and liabilities and they remained operative, even after the Constitution, as against non‑citizens".

21. As regards American authorities, although the distinction between post‑Constitution and pre‑Constitution laws have been made to depend on similes‑in the former case they are "still?born", in the latter they are under an eclipse‑at least one American case was cited to us by Mr. Sharifuddin, amicus curiae, in which a criminal statute whose validity was in question had been passed before the 17th Amendment and it was held that the statute in question "must be tested by powers possessed at the time of its enactment" and that "an after‑acquired power cannot validate a statute void when enacted". (256 U S 232 at page 254).

22. But the American authorities were held‑ not to apply because by the Indian Constitution, all laws, "existing or future" and that sets aside the distinction between pre‑Constitution and post‑Constitution laws‑‑which are inconsistent with Article 13, are rendered void "to the extent of such inconsistency". The emphasis is on the last six words, not only here, but in several other places in the judgment. But the meaning‑of these words has been taken to be that these laws are not dead for all purposes but only to the extent of the inconsistency. I say with great respect that these words do not mean "for the limited purpose of ‑the Fundamental Rights", but only mean what every common man understands them to mean, namely, that so much of an Act as is not inconsistent with a Fundamental Right will continue to be valid. If the whole Act is inconsistent, then the whole Act becomes void, and that would be the extent of inconsistency.

23. That such laws still exist "for the purpose of pre? Constitution rights and liabilities" is not an incident of the words to the extent of such inconsistency". Those rights and liabilities? are preserved only if it is held with the majority in Keshavan's case (A I R 1951 S C 128), where the majority judgment was delivered by Mr. Justice Das himself, that when a statute becomes void, its effect is one of repeal, and section 6, General Clauses Act, thereafter applies. It will be noticed that the same result the preservation of pre‑Constitution rights and liabilities‑has been made to flow from two different hypothesis, the first being that the effect of voidance is the same as that of repeal, and, therefore, pre‑Constitution rights are preserved ; the second being that laws which are inconsistent with the Fundamental Rights are rendered void to the extent of inconsistency, not for all purposes, and, therefore, they exist for the purpose of pre‑Constitution rights.

24. Lastly, as regards non‑citizens, whether the effect of voidance is total extinction or extinction only in respect of citizens, the fact that the Constitution has not extended equal treatment to non‑citizens cannot be allowed to alter the meaning of a plain expression. Quite a number of laws may be enacted solely for the benefit of, or in respect of, foreigners, and a law which contravenes a Fundamental Right may also be conceived to stand on the statute book for the purpose of foreigners only.

25. I think we should face a void as a void and not resort to similes derived from birth or death. "A simile, to be perfect" said Dr. Johnson, "must both illustrate and en‑noble the subject" The phenomenon of still‑born laws serves neither end. Nor does an eclipse describe a dormant law truly. An eclipse is a very transitory phenomenon, and the effect of a Fundamental right, which is a permanent feature of modern on laws is far from ecliptic. It were better to say, if we judged things by births and deaths, that such laws were in a state of coma. But? they are not a state of coma they are just void i1y answer' to the question before the Full Bench, therefore, is that the enactments rendered void by the Articles relating to fundamental Rights in the late Constitution are NOT in force in Pakistan. In other words, the answer is in the negative.

26. I wish to make it clear that we have heard tie case on the assumption that the judgments of the Supreme Court in Constitutional Criminal Appeal No. 1 of 1958 have not laid down any law on the particular point before us, although indirectly, if our finding is correct, the Frontier Crimes Regulation, with which their Lordships were concerned, would also be bad law. The question before the Supreme Court was whether the fundamental? Rights still existed, and whether, therefore, certain appeals pending before it had abated within the meaning of Article 2, clause (7) of the Presidents Order. The effect of the 1‑unoamental Rights during their operative period on laws incompatible with those Rights was not examined, and we would be depriving ourselves of the benefit of their Lordships' opinions on the present case if we merely applied to it the indirect effect of their previous judgments which were delivered in respect of a different situation. INAMULLAH, J.‑I agree with my Lord the Chief Justice and have nothing to add. KAIKAUS, J.‑The question referred to the Full Bench is‑

1. Whether the enactments rendered void by the Articles relating to fundamental rights in the late Constitution are now in force in Pakistan. The foundation of the present legal order in Pakistan is the President's Order dated the 10th of October, 1958 (it has retrospective effect from the 7th of October, 1958), and it is by means of that Order that the state of law as it exists today in Pakistan is to be determined. Article 4 of the President's order runs :‑ "4. (1) Notwithstanding the abrogation of the late Constitu?tion, and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law laws. other than the late Constitution, and all Ordinances, Orders‑in?-Council, Orders other than Orders made by the: President under the late Constitution as are set out in the .Schedule to this Order, Rules, by‑laws, Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make continue force until altered, repealed or amended by competent Authority. (2) In this Article a law is said to be in force if it has effect as law whether or not the law has been brought into operation. (3) No Court shall call into question any adaptation made by the President under clause (1)". According to this Article, subject to certain specified exceptions and limitations, only that is the law in force in Pakistan today which was "in force" immediately, before the President's Pro?clamation of the 7th October, and in order to find out whether a particular law is in force today in Pakistan the simple question to ask is : was it "in .force" immediately before the President's Proclamation ? If we have to find out whether the laws which were in conflict with fundamental laws are now in force in Pakistan, we have simply to ask ourselves whether the laws which were hit and rendered "void" by Article 4 of the late Constitution were "in force" in Pakistan immediately before the President's Proclamation. The matter is simple, and does not appear to admit of any argument. The laws which had been rendered void by Article 4 could not possibly have been in force in Pakistan before the Proclamation. The learned Attorney‑General contends, however, that after the abrogation of the Constitution and the consequent withdrawal of the fundamental rights, what is law in Pakistan today is the physical content of the laws as they were originally enacted, and not what remained of that content after it had been subjected to the nullifying effect of‑Article 4 of the late Constitution. For this contention, the learned Attorney ?General put forward two arguments :‑ (1) Although ordinarily the words "in force" mean a law that in fact has force, in Article 4 of the President's Order, it means only that which is on the statute book, irrespective of whether it was void from its inception or has subsequently been rendered void ; (2) A law which is inconsistent with a fundamental right remains in a kind of suspense or abeyance, and the moment the fundamental right is withdrawn the law emerges with full force". The learned Attorney‑General argued the case on these lines when he addressed us for the first time in reply to the petitioner's arguments. When we gave him a second opportunity of argument after the petitioner's rejoinder, he changed his position with respect to the second argument. He made a distinction between the first and second clauses of Article 4 of the late Constitution. He conceded that a law which was enacted after the 22nd of March, 1956, and was in conflict with a fundamental right would not be existent in Pakistan today because clause (2) of Article 4 of the late Constitution prohibited the making of laws inconsistent with fundamental rights. The position, however, he contended, was different in respect of laws .which existed on the 22nd of March, 1956, and which were in conflict with fundamental rights. Those laws, he said, would only remain in suspense and if fundamental rights are withdrawn, they would again emerge and would be now in force in Pakistan. It will be observed that the concession which the learned Attorney‑General ultimately made destroys his first argument ; for if the first argument was correct, laws enacted after the 22nd of March 1956 in violation of Article 4 of the late Constitution would still be in force ; they would be on the statute book in accordance with the learned Attorney‑General's definition of statute book. I shall, however, discuss even the first argument of the learned Attorney‑General, though only in brief, for he argued this point at length and the discussion will also show how hard‑pressed the learned Attorney‑General must have been for an argument if he was forced to take up such a position. The learned Attorney‑General contended that by the words " in force " as used in the President's Order all that was meant was that the laws should be on the statute book, and by the statute book he meant the Gazette. If a law was contained in the in ?Gazette, it was "in force" even though it was in conflict with fundamental rights. The President, when he promulgated the Order under discussion, was not concerned with the validity of laws. He was giving the country a Constitution and he had to state what were henceforth to be the laws of the country. He decided that all that was contained in the Gazette, irrespective of its validity, shall be law, and he expressed his intention by saying that whatever was "in force" was to continue to be in force. This is the strain in which the learned Attorney‑General argued. He was asked whether an enactment which was not within the legislative competence of a legislature at all, will also become law because it was contained in the Gazette, and he answered in the affirmative. In fact he said ill at whatever the ground on which a law was void, it would be law in Pakistan today if it was in the Gazette. He was then questioned as to whether a law which had been declared void by the Supreme Court of Pakistan either on the ground of legislative incompetence or on any other ground, would still be law in Pakistan. He replied that it would still be law unless the relevant legislature had also thought fit to delete and formally withdraw that part of the law which had been declared void by the Supreme Court. When questioned as to whether all rules, regulations and by‑laws frame. by an authority which had no power to frame them but which existed in the Gazette would be good law, he replied in the affirmative. The attention of the learned Attorney‑General was then drawn to the words "legal instrument" which occurred in Article 4 of the President's Order. The learned Attorney‑General admitted that these words would apply to any order passed by a public officer. When questioned as to whether on i.e. interpretation which he was placing on the words "in force", every order passed by a public officer without jurisdiction would not become legal, he replied in the affirmative. Of course, consistently with the position that he took up, this was the only answer he could give. The effect of the interpretation suggested by the learned Attorney‑General would be that whatever had been enacted from the earliest times of the British rule in India, and from the Partition of India up to the present day in Pakistan without legal authority would be law in Pakistan today. I say from the earliest times of the British rule" because there is no time limit in the argument of the learned Attorney-General. Whatever is contained? in the Gazette would be law without reference to its date all rules, regulations, by‑laws, etc., framed either by Govern?ment or by a Municipal authority at any time without jurisdiction would be law ; all orders passed by a public officer without authority at any time would have full legal force. The learned Attorney‑General regards Article 4 of the President's Order as a validating clause which was intended to give legal force to all that was void, whether it was a law or an order passed by a public officer. The learned Attorney‑General is unable to say why we should accept that when the President said what was in force already was to be law, he actually meant that what was not in force was to be law. Article 4 is just an ordinary provision for continuation of laws which is found in every new Constitution and whoever framed it surely knew the difference between such a provision and a validating clause. I proceed now to consider the second argument of the learned Attorney‑General. It will be convenient to reproduce here Article 4 of the late Constitution "4. (1) Any existing law, or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of this Part, Laws inconsistent with or in? derogation??????????? shall, to the extent of such inconsistency, of the fundamental rights to be void.???? ??????????? be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law in contravention of this clause shall, to the extent of such contravention, be void. (3) Nothing in this Article shall apply to any law relating to the members of the Armed Forces, or the Forces charged with the maintenance of public order, for the purpose of ensuring. the proper discharge of their duties or the maintenance of discipline among them". Clause (I) of this Article relates to existing laws, that is, laws in force in Pakistan on the 22nd of March, 1956, and renders them void to the extent of their inconsistency with fundamental rights. Clause (2) prohibits a legislature from enacting a law which is not consistent with a fundamental right and, at the same time, prescribes that it shall be void. The learned Attorney ?General concedes, as already stated, that so far as laws enacted after the 22nd of March, 1956 are concerned, they would to the extent of their conflict with fundamental laws be non‑existent and could not emerge as laws after the withdrawal of fundamental rights. This, he says, is the effect of the prohibition contained in clause (2) of this Article restraining any legislature from enacting a law that is in conflict with a fundamental right. If the legislature had no power to enact a law, he says, that law never came into existence. With respect to laws that existed on the 22nd of March, 1956, however, he contends that a fundamental right only obstructed their enforcement, and the moment the funda?mental rights disappeared (on account of the abrogation of the Constitution on the 7th October, 1958) those laws emerged again in full force. Before I proceed to discuss the effect of the withdrawal of the fundamental rights, let me consider whether in the present case this question arises at all. At first sight it may appear to arise, for there were fundamental rights in Pakistan and those rights do not now exist, but considered a little carefully, it will become clear that for the purpose of determining whether a particular law is in force today in Pakistan, the effect of the withdrawal of fundamental rights is irrelevant. The withdrawal took place after the President's Proclamation, as an effect of the Proclamation. Article 4 of the President's Order refers to laws in force "immediately before the Proclamation", that is, on the 6th October, 1958. It has no reference to what would happen as a result of the Proclamation. On account of the abrogation of the late Constitution an effect was produced, namely, that fundamental rights were withdrawn, but this could only be after the Pro?clamation had been made, and Article 4 of the President's Order refers to laws which were in force immediately before. It certainly could not be argued that "immediately before" the Proclamation the withdrawal of fundamental rights had taken place. Article 4 of the President's Order continues the laws that existed before the Proclamation was made. At that time surely the laws that had been rendered void by the fundamental laws were not in force.? The intention, obviously, of Article 4 of the President's Order was to maintain the status quo‑to continue a state of things that existed before the Proclamation came into force. Whatever the effect of the withdrawal of fundamental rights, we are concerned only with the law as it stood before the Proclamation. It is apparent that if the question whether a law is in force in Pakistan, is to be determined with reference to Article 4 of the President's Order, the effect of withdrawal of fundamental right is irrelevant. It will also be clear that what is law today in Pakistan is to be determined only with reference to Article 4 of the President's Order. The force of anything that is claimed to be law must be found within the four corners of Article

4. If Article 4 does not give force to what is claimed as law, that certainly is not the law of Pakistan. If it be contended that laws rendered void by Article 4 of the late Constitution are now laws in force in Pakistan, this must be established by reference to Article 4 of the President's Order, and that Article surely doe not justify their existence. I should state that in fact it is only on the strength of Article 4 of the President's Order that force as law is being claimed for laws which had been rendered void. Whatever the view of the effect of Article 4 (1) of the late Constitution, will it be possible to contend that the laws which were in conflict with fundamental rights were "in force" "imme?diately, before" the Constitution ? A law is regarded to be in force if it has effect as law. That is provided in Article 4 of the President's order itself. If a law in force means a law which has effect as law, then, whatever the interpretation of the worst "void" in Article 4 of the late Constitution, can it be said that the law which was in conflict with a fundamental right, had effect as law on the 6th of October, 1958, that is, before the President's Proclamation ? Law is a mandate of State a rule of action prescribed by the State. The mandate may be operative o; its operation may b,, deferred, but the mandate must be there if it is to be a law. What was the mandate, the rule of action, in the case of a law rendered void by Article 4 (1)? There will be a full discussion later in this judgment of the meaning of "void" in Article 4 of the late Constitution. Here I simply consider whether on any interpretation it could be said to have effect as Law. Effect should mean that rights or liabilities are created; that some person is bound to act in accordance with the rule of action provided by the so‑called law. It cannot be said that the laws rendered void either governed rights and liabilities or provides some rule of action. The strongest view in favour of the Attorney‑General is that the laws hit by Article 4 of the late Constitution remain in suspense or abeyance. But what is in suspense or abeyance does not have effect, otherwise the distinction between effect and no effect will cease to exist. The words "in force" are strong words and it will be impossible to apply them to that which the Constitution has rendered void whatever the view which may be taken of their meaning. I might explain here that the provision as to laws being in force even if they are not in operation refers to cases where the date of commencement of the operation of an act has not yet arrived or where the date of its commencement has yet to be fixed by some authority. The object of the provision as to continuance of laws being to maintain the status quo, even a law which has been enacted but whose operation has not yet commenced, has to be continued though its continuation will only be in the form in which it was: If it had not yet commenced, it will commence on the date which is either already fixed or the date which is named by the relevant authority. I will now proceed to discuss the general effect of the abroga?tion or withdrawal of fundamental rights, even though, having regard to the wording of Article 4 of the President's Order , it is unnecessary. In order that, on the withdrawal of the funda?mental rights, laws in existence on the 22nd of March, 1956, which were in conflict with fundamental rights may again acquire the force of law, it is necessary that they should have existence as laws at the time when fundamental rights were withdrawn. The contention of the learned Attorney‑General is that these laws remained in existence, and all that happened was that they could not be given effect to as against the fundamental rights. Article 4(1) of the late Constitution says existing laws in conflict with fundamental rights would become void. The word "void" in its ordinary sense implies that a thing is non‑existent in law. It is in fact the strongest term known to law for ex?pressing that a thing has no legal existence. Any Law Lexicon will tell us that. The interpretation of the word in legal docu?ments is so well known that it is unnecessary to refer to any Law Lexicon on the subject. If the intention were to say that a thing would be legally non‑existent, I do not know of any other appro?priate expression which could be employed. I do not say that the word "void" may not sometimes be used in a sense where it only means "void able". I do not exclude that possibility, for I do not exclude the possibility of any word being used in a sense which is not properly its meaning. However, if the simple possibility of incorrect use exists that certainly does not mean that, if a law says something shall be void, we are to presumed that it is not void. The onus lies‑and lies heavily‑on the person who contends that the expression has been used in an incorrect sense. He has to put forward some argument or draw our attention to some consideration which may be sufficient for drawing this inference. Nothing at all has been urged before us from which one may conclude that in Article 4 (1) of the late Constitution when the Constituent Assembly used the word "void" it meant something entirely different, although some authority has been produced, to which I shall presently refer. The task of the learned Attorney‑General becomes even more 'difficult when we consider that in the second clause of the same Article the word "void" is being applied to a law which the learned Attorney‑General admits was altogether non‑existent, and which certainly was not "in force" in Pakistan in spite of the fact that the only obstruction in its way were the fundamental rights. Is there any reason for presuming that the intention of the Constituent Assembly when using the word "void". Article 4 (1) was different from that which it had when using it in Article 4 (1)? The objection to both kinds of laws was the same, namely, that they were in conflict with fundamental rights. Why then should we assume that, in the case of Article 4(1) all that the Con?stituent Assembly intended to say was that the operation of the law will be stayed? It cannot be denied that the effect of tile funda?mental right on the law depended on the intention of the makers of the Constitution. The Constituent Assembly obviously had the power to enact that an existing law, which was inconsistent with a fundamental right, should henceforth be non‑existent. When we have to interpret therefore the effect of Article 4 (1) we should only be discovering the intention with which the word " void" was used. 1f the Constituent Assembly had the same intention in Article 4 (1) as it had in Article 4 (2), there is nothing further to be said on behalf of the learned Attorney ?General. The intention of the Constituent Assembly in respect of laws enacted after. 22nd March, 1956 was that even though they appear on what the learned Attorney‑General calls the Statute Book, they should be dead as laws. What possible reason is there for saying that they had a different intention in Article 4 (1) ? It has to be remembered that the Constituent Assembly was recognizing very important rights that existed either in the citizen or in a citizen as well as a non‑citizen. Did they intend that the rights which were being recognised should again be violated ? Were they for that reason keeping alive the laws that existed on the 22nd March 1956 in order that on the withdrawal of the fundamental rights they may again become laws ? If the Constituent Assembly wanted to make the laws wholly non‑existent, what other words could it have employed ? With respect to future laws it had used the word "void" and why could it not expect that when it used the word "void" in respect of existing laws, it will be understood as using the word in the same sense ? It used the strongest possible word ; the Con?stituent Assembly did not say the law will be unenforceable ; it did not say the law shall not stand in the way of the exercise of fundamental rights ; It said the law would be void. Let us for a moment consider what kind of laws were the existing laws in respect of which it is contended that the Con?stituent Assembly did not intend to destroy them altogether but just wanted to keep them in abeyance or in suspense, only to enforce them by withdrawing the fundamental rights. I quote below some possible examples of such laws (i) The Qur'an or the Hadith shall not be taught in a school even. though it is attended only by Muslims. (ii) No person, except a Jat, Rajput or Awan, shall be entitled to purchase land. (iii) No association shall be formed for any political purpose. (iv) No Indian shall carry on the profession of a medical practitioner. (v) No Muslim shall be employed in the Intelligence Depart?ment. (vi) No Shia shall be entitled to bold property. I have deliberately chosen strong examples in order that full implic?ation of the contention of the learned Attorney‑General may be appreciated. Can any person imagine that the intention of the Constituent Assembly was to keep such laws just in abeyance so that they may automatically re‑appear when the Constitution was abrogated ? In fact, the Constituent Assembly was not thinking of the abrogation of the Constitution at all ; it could not be in anybody's mind at that time that fundamental laws were at any time going to be withdrawn. The present order in Pakistan is not one which they ever contemplated. I repeat here that whether the laws which were in conflict with fundamental rights became dead or were only suspended depended on the intention of the Constituent Assembly alone, After all, it cannot be contended that it is not possible for even an omni?potent legislature to kill a law altogether so that it does not of itself emerge again. Suppose that the Constitution, did not specifically refer to fundamental rights at all, but recognizing that some existing laws were oppressive laws which were opposed to the ideas which the Members of the Constituent Assembly had of human rights, simply declared them as invalid. Suppose the Constitution mentioned certain Acts in_a schedule, and the simple provision was that henceforth those Acts would be void. Could those laws at any time regain force because of the abrogation of the Constitution ? If that be so, will it make any difference that not only did the Constitution declare the existing laws to be void but at the same time made sure that even in future no legislature would transgress those human rights which the Constituent Assembly, had recognised, and instead of specifically mentioning existing laws made a general provision as to existing laws that offended against such rights. Our Constitution expressly says that such laws shall be void, but in the American Constitution only fundamental rights are provided for, and there is no specific provision saying that that which conflicts with fundamental rights shall be void. Yet it has been held in America in a number of cases that a law which is unconstitutional‑whether on account of the exercise of a fundamental right or otherwise has no legal existence. I quote below from page 382 of Cooley's Constitutional Limita?tions Vol. I (Edn. VIII) :‑ "Consequences if a statute is void " When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it ; con?tracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time; been possessed of any legal force." (Pages 382‑383). "An unconstitutional Act is not law; it confers no rights ; it imposes no duties ; it affords no protection; it creates no office it is in legal contemplation, as inoperative as though it had never been passed." "Where a statute peremptorily require., certain stipulations or agreements to be inserted in a contract, and the same are, by force of such statute; and because of its provisions, inserted by the contracting parties in their contract, the obligatory and binding force of such stipulations and agreements so inserted depends upon the validity of the statute requiring their insertion ; and where such statute is itself unconstitu?tional such stipulations and agreements, although incorporated in the contract, are in law without any binding force upon‑ the parties to the contract." (Page 383). , " A statute void for unconstitutionality is dead and cannot be vitalized by a subsequent amendment of the Constitution removing the constitutional objection, but must be re‑enacted." (Page 384). In South. Australia v.' The Commonwealth (Commonwealth L R vol. 65, page 373 (p. 408)), Letham, C. J. said " Common expressions, such as : `The Courts have dec?lared a statute invalid', sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to dis?regard it. Naturally he will feel safer if he has a decision of a Court in his favour but such a decision is not an element which produces invalidity in any law. The law is not valid until a Court pronounces against it and thereafter invalid. If it is beyond power it is invalid ab initio." The question with which we are concerned in the present reference almost directly arose in two cases. In Saghir Ahmed v. State of U. P. (A I R 1954 S C (Ind.) 728) a question arose as to whether the constitutionality of an Act was to be judged by the fundamental rights as they existed on the date of its enactment or whether an amendment of the provisions as to the fundamental rights after the date of its enactment could validate it. There had been an amendment in the Indian Constitution with respect to the extent of a fun?damental right. If the statute was judged by the Constitution as it stood on the date of its enactment, it was void. If, on the other hand, the law by which its validity was to 'be judged was the constitutional provision as it existed on the date when the question arose, the law was valid. Dealing with this question the learned Judges said (page 739) :‑‑ "It is quite true that if the present statute was passed after the coming into force of the new clause in Article 19 (6) of the Constitution, the question of reasonableness would not have arisen at all and the appellants' case on this point, at any rate, would have been unarguable. These are however considerations which cannot affect our decision in the present case. The amend?ment of the Constitution, which came later, cannot be invoked to‑ validate an earlier legislation which must be regarded as unconstitutional when it was passed. As Professor Cooley has stated in his work on Constitutional Limitations, Vide Vol. I, page 384 note, "a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Cons?titution removing the constitutional objection but must be re‑enacted". We think that this is sound law and our conclusion is that the legislation in question which violates the fundamen?tal right of the appellants under Article 19 (1) (g) of the Cons?titution and is not shown to be protected by clause (6) of the Article, as it stood at the time of the enactment, must be held to be void under Article 13 (2) of the Constitution". In Truman ff. Newberry v. United States of America (256 U S 232) also a question arose as to whether the validity of an enactment was to be judged by the fundamental rights as they stood at the date of its enactment or as they stood at the date of the transaction in dispute. The learned Judges said "The validity of the Federal Corrupt Practices Act, antedating the 17th Amendment, must be tested by powers possessed by Congress at the time of its enactment. An after acquired power cannot, ex proprio vigore, validate a statute void when enacted". Great reliance was placed by the learned Attorney‑General on Bhikaji Narain Dhakras v. State of Madhya Pradesh (A I R 1955 S C (Ind.) 781). The facts in that case were that the Motor Vehicles Act, 1939, had been amended with respect to its application in C. P. and Berar by the C. P. and Berar Motor Vehicles (Amendment) Act, 1947. By this amendment vast powers were given to the Provincial Government to carry out and implement a machinery for road transport business. At the time when the amendment came into force, there were no fundamental rights. On the 26th January 1950 the Indian Constitution came into force, and Article 19 (1) (g) of the Consti?tution rendered the amendment of 1947, referred to above, void, because Article 19 (1) (g) recognised full rights of a citizen to carry on any business and did not make any exception in favour of a Government creating monopoly for itself. On the 18th of June 1951, was passed the Constitution Amendment Act by which Article 19 was amended so as to introduce a clause enabling the Government to create a monopoly in respect of motor transport business. This clause at the same time validated all existing laws which meant laws that existed immediately before the Constitution of India came into force, if they were not in conflict with Article 19 as amended. I reproduce for convenience both the original Article 19 and the amendment : Original Article 19 19. (1) All citizens shall have the right‑ (a) to freedom of speech and expression; (b) to assemble peaceably and without arms ; (c) to form associations or unions ; (d) to move freely throughout the territory of India ; (e) to reside and settle in any part of the territory of India ; (f) to acquire, hold and dispose of property ; and (g) to practise any profession, or to carry on any occupation, trade .or business. (2) Nothing in sub‑clause (a) of clause (I) shall affect the operation of any existing‑law in so far as it related to, or prevent the State or making any law relating to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tend to overthrow, the State. (3) Nothing in sub‑clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or pre?vent the State from 'making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub‑clause. (4) Nothing in sub‑clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub‑clause. (5) Nothing in sub‑clauses (d), (e) and (f) of the said clause shall affect the operation of and' existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights con?ferred by the said sub‑clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub‑clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub‑clause, and, in particular, nothing in the said sub‑clause, shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescrib?ing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. Subsection (6) as amended. (6) Nothing in sub‑clause (g) of the said clause shall affect the operation of in existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub‑clause, and, in particular, nothing in the said sub‑clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any lave relating to,‑ (i) the professional or technical qualifications necessary for practising tiny profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. The Government had actually acquired a monopoly of transport in a particular place in the C. P. and the question arose as to whether the amendment of 1947 in the Motor Vehicles Act could be regard?ed as having become law for C. P. and Berar after the coming into force of the first Constitution Amendment Act which amended Article 19. 1 reproduce below the relevant portion of this judgment:‑ "This question was not considered by this Court in Saghir Ahmed's case, for it was there conceded (See pp. 735‑36 of the report) that the validity of the U. P. Act which, in this respect, was similar to the C. P. and Berar Act, now under consideration, was not to be decided by applying the provisions of the amended clause (6). Nor was this problem raised before or considered by this Court in Behram Khurshed Pesikaka v. State‑of?Bombay, (A I R 1955 S C 123). We, therefore, conceive it, to be open to us to go into the new question‑that has now been mooted before the and to consider what effect the amended clause (6) has on the impugned Act. This involves a question of construction of Article 13 of the Constitution. "The meaning to be given to the word `void' in' Article 13 is no longer `res integra', for the matter stands concluded by the majo?rity decision of this Court in Keshavan Madhava Menon v. The State of Bombay (A I R 1951 S C 128). We have to apply the ratio decidendi in that case to the facts of the present case. The impugned Act was an existing law at the time when the Constitution came into force. 'that existing law imposed on the exercise of the right guaran?teed to the citizens of India by Article 19 (I) (g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under Article 13 (1) that existing law became void `to the extept of such inconsistency'. "As explained in Keshavan Madhava Menon's case the law became void not in toto or for all purposes or for all times or for all persons but only `to the extent of such inconsistency', that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. In other words, on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of Article 19 (1) (g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that funda?mental right. "Article 13 (1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Merlon's case. The law conti?nued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right. 1n short, Article 13 (1) had the effect of nullifying or rendering the existing law which had become inconsistent with Article 19 (1) (g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution.. Therefore, between 261‑1930 and 18‑6‑1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under Article 19 (1) (g). "The true' position is that the impugned law became, as it were, eclipsed, for the .time being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or infirmity. If that were not so, then it is not intelligible what `existing law' could have been sought to be saved from the operation of Article 19 (1) (g) by the amended clause (6) in so far as it sanctioned the creation of State mono?poly, for, ex hypothesi all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of clause (6) as it then stood. "The American authorities, refer only to post‑Constitution laws which were inconsistent with the provisions of the Constitution. Such laws never came to life but were still‑born as it were: The American authorities, therefore, cannot fully apply to pre? Constitution laws which were perfectly valid before the Consti?tution. But apart from this distinction between pre‑Constitution and post‑Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void `to the extent of such inconsistency'. Such laws were not dead for all purpose. They existed for the purposes of pre‑Constitution rights and liabilities and they remained operative, even after the Constitution, as against non‑citizens. "It is only as against the citizens that they remained in a dormant or moribund condition. In our judgment, after the amendment of clause (6) of Article 19 on 18‑6‑1951, the im?pugned Act ceased to be unconstitutional and became revived and enforceable against citizens as well as against non‑citizens. It is true that as the amended clause (6) was not made Retrospective the impugned Act could have no operation as against citizens between 26‑1‑1950 and 18‑6‑1951 and no rights and obligations could be founded on the provisions of the impugned Act during the said period whereas the amended clause (2) by reason of its being expressly made retrospective had effect even during that period. "But after the amendment of clause (6) the impugned Act immediately became fully operative even as against the citizens. The notification declaring the intention of the State to take over the bus routes t4 the exclusion of all other motor transport opera?tors was published on 4‑2‑1955 when it was perfectly constitutional for the State to do so. In our judgment the contentions put forward by the respondents as to the effect of the Constitution (First Amendment) Act, ' 1951, are well‑founded and the objec?tions urged against them by the petitioners are untenable, and must be negatived." So far as the actual decision is concerned it is very easy to support it by reference to the words of the amendment. It will be observed that the amendment expressly validates all existing laws which were in conflict with a fundamental right as it stood originally in Article 19 if they were not in conflict with the amended Article. Existing law meant any law in force immediately before the Constitution. The effect obviously would be that every existing law (and the amendment of 1947 in the Motor Vehicles Act was an existing law) though it had been rendered void by the Con?stitution, would become law 4 it was not hit by the Article as amended. The amendment had obviously been given retrospec?tive effect. This, however, is not the reasoning in the extract which I have reproduced. It will be observed in the first place that the learned Judges had regarded the question as not arising in Saghir Ahmad's case, I have already reproduced from Saghir. Ahmad's case a passage where the precise question was involved, and where the learned Judges had held that the constitutionality of a‑law was to be decided in accordance with the fundamental rights as they existed on the date of the enactment of the law. S. R. Das, J., who had written the judgment in Bhikaji Narain Dhakras' case was a party 6 the judgment in Saghir Ahmad's case. The next point to be observed is that the learned Judges regarded the question before them as no longer res-integra, because it stood concluded by the majority decision of the Court in Keshavan Madhava Menon v. The State of Bombay. On a perusal of that judgment it will appear that the only question involved there was whether prosecution for an act which was an offence before the Constitution could be continued if on account of conflict with a fundamental right the: law under which the accused was being prosecuted became void. The true question that fell for decision was only whether the effect of an Act becoming void was the same as that of repeal. It was contended on behalf of the accused and this was the view accepted by the minority of Judges that the effect of a statute becoming void was not that of a repeal but was the ordinary effect of the termination of a statute as recognised by Courts in England, namely, that when an Act ceases to exist it is deemed never to have existed except for transactions past and closed. This was the view in England even with respect to a repeal before the Interpretation Act of 1889 which introduced a provision saving the effect of repealed statutes with respect to rights and liabilities and pending actions. The argument in favour of the accused was that the effect of a repealed enactment was saved in England by the Interpretation Act, and in India by a corresponding provision in General Clauses Act, and that a provision relating to repeal could not be applied to the case of a statute becoming void. This view was not accepted by the majority of the Judges, but the question as to whether the constitutionality of an Act was to be determined with reference to the fundamental laws as they existed at the date of their enactment or by the fundamental laws as they existed at the date of a transaction was not before the Judges in that case. There are certain observations no doubt in that case on which an argument .in favour of the view. accepted by the learned Judges in Bhikaji Narain's case (A I R 1951 S C (Ind.) 128)may be founded, but (I say so with respect) the matter was res integra and could not be said to have been excluded. There were greater reasons for its not being res integra on account of the decision in Saghir Ahmad's case because the question was directly involved and there was a distinct rule laid down. It will also‑ be observed that in Menon's case it had been accepted that when an existing law became void, that, amounted to a repeal, and if it was a repeal it could hardly be said that a repealed statute would emerge when the fundamental right which caused its repeal disappeared. "The law became void in toto or for all purposes or for all times or for all persons but only to the extent of such incon?sistency, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens." The learned Judges then said that it had not been killed but had only remained in abeyance. I would presently consider whether it became void only for specific purposes, or for a particular time and as against only some persons, but before I proceed to do so, let me repeat the question I have already put. If the Constituent Assembly intended to altogether kill the law which offended against fundamental provisions, could it not do so ? Was it really not a question only of the intention of the Constituent Assembly ? I have already given reasons why there is no ground for imputing to the Constituent Assembly any intention other than the intention of making the law void. It appears to me that the whole argument of the learned Judges is based on the words "to the extent of inconsistency". With great respect I am unable to draw from the use of these words the inferences that have been drawn by the learned Judges. These words appear to me to imply only that that part of the enact?ment which offended against a fundamental right was void. If the intention was as I say was not "to the extent of inconsistency" the proper expression to use ? In fact I cannot think of any other appropriate expression at all. The Constitution could not have said "any law which is inconsistent with the provisions relating to fundamental rights will be void" for that could have been inter?preted as meaning that the whole of an enactment which contained an inconsistent provision would be void, whereas the intention was that a whole enactment should not be void if after deleting the offending portion a good workable law remained. The inten?tion being only to render void whatever was in conflict with a fundamental right, the only way to put it, and at least a proper way to put it, was to say that to the extent of inconsistency the law shall be void. But that part which is void has to be void for all purposes. The Constitution does not say it shall be void for a particular purpose, and I ask ; what Is the purpose for which a law which is void would still be law ? I will take an example. The law says ; In criminal proceedings before a Special Judge, no person shall be represented by a counsel. Being in conflict with the fundamental right‑of an accused to be defended by a counsel, this law is, according to the Constitution, void. Now, for what purpose does it remain good law ? Another law says : No Shia shall acquire any immovable property. This too is void being opposed to a fundamental right. For what purpose could it possibly remain a law ? As regards the objection that it is not rendered void for all times I put a similar question with respect to the two above examples. Was the intention only to keep the law in abeyance for some time, or that henceforth it shall not be law at all ? When we say such and such law shall be void, is there any time factor involved ? It obviously means for all times. Another argument is that it is not void for all purposes. Let us take a case when a ;law offends against the fundamental right of a citizen, and consider whether it will be law for a non‑citizen. A law says : "More than five persons cannot assemble at any place in Pakistan". The right of assembly is under Article 9 only the rights of a citizen. Now, can it be said that this law will be good law so far as non‑citizens are concerned ? One view to take is that a law is contained only in its words ; either it is law that no more than five persons shall assemble in Pakistan or it is not. We cannot substitute for it : "No more than five non‑citizens shall assemble at any place in Pakistan". It is not correct to say in accordance with this view that a law can be a good law in its application to some cases and bad for the rest. But even if we do not accept this view, the decision of the question before us is not affected. Suppose the law to which I have referred had existed before the 23rd of ‑March 1956, and having been hit by Article 9, it became void to the extent to which it is in conflict with the rights of a citizen. What would be the effect ? The effect would be that, so far as citizens are concerned, there was no law on the 6th of October 1958, that more than five could not assemble. When we say that the law became void to the extent of inconsistency, the least effect will be to negative the existence of a law that violates the fundamental right, not to look merely at the wording of the laws but are to determine what is the law with reference to the Constitution, then we must hold that on the 6th of October a law did not exist to the effect that citizens could not assemble ; what did exist was only this that more than five non‑citizens could assemble in any place in Pakistan. If then there was no law on the 6th October, no question of its coming into force by the withdrawal of the fundamental rights can arise. What is law we should determine only by discovering the mandate of the state‑the rule of action prescribed by it. If there be no mandate and no rule of action, we should hold that no law exists. It will be altogether wrong to attach any effect to acts which were either ultra vires at inception or became so afterwards. The learned Attorney‑General put forward a general pro?position that whenever a law is rendered void by a particular pro?vision, the continued existence of the nullifying provision is essential to keep the law void and the moment the nullifying provision disappeared the law rendered void would again emerge. On this argument whenever one law is repealed by another the continued existence of the repealing law would be essential in order that the law in question may remain repealed. This is obviously not correct. The legislature is continuously enacting the repealing Acts, the purpose of which is to repeal those laws which have repealed another law, because they have had their effect, and their continuance in future is unnecessary. If the argument of the learned Attorney‑General is accepted almost all that has been repealed would be law today. The learned Attorney‑General had been questioned by my Lord the Chief Justice as to whether his argument would apply 'to a case under Article 110 of the late Constitution which renders a Provincial Act void to the extent of its inconsistency with an Act of the Parliament and he replied that it did and that the continued existence of the relevant Act of Parliament would be essential. I reject the argument when a law produced an effect the withdrawal of the law does not take away that appeal. This is true as to transaction as well as the effect on other statutes. The learned Attorney‑General relied upon A I R 1952 Punj. 55, A I R 1952 Pb. 417 and A I R 1953 Mad 729 for the pro?position that an amendment can be made in an unconstitutional law so as to bring it in accord with the Constitution. He based on this an argument that unconstitutional laws do exist as laws. Otherwise, he says, there would be nothing to amend. I have little doubt that the argument is without force. It will appear from a passage in Crawford on Statutes which I am going to reproduce that Courts have generally taken the view that an amendment of a void enactment is not permissible but even the opposite view would not establish the existence as law of an un?constitutional law. ‑ Amendment is allowed not because the law which is void exists but because the amendment is regarded as amounting to enactment of the law as it would stand after the amendment, and because it is a convenient method of enacting a law. I will cite an example. A law says : "No person shall carry on business as a commission agent for sale of immovable property." The law is void according to one Constitution, for it is in conflict with the right to carry on a business. Now if by an amendment the words "except with a license form the District Magistrate" are added, it is possible to take the view that the intention by the amendment is to enact : "No person shall carry on the business as a commission agent without a licence from the District Magistrate". I reproduce below a passage from para 117 of Crawford's Statutory Constitution where the learned commentator deals with this subject :‑ "There is likewise a conflict in the authorities whether a statute which is unconstitutional in its entirety, can be amended. Some authorities hold that such a statute cannot be amended, for the reason that if the original enactment is completely un?constitutional, there is nothing to amend, since an unconstitu?tional Act, being void; has no existence as a law. Other authorities, however, adhere to the view that a statute uncon?stitutional in its entirety, may be amended, provided the amendment qualifies as a complete and independent statute in ?and of itself. And in at least one state, the courts do not consistently adhere to either of these two views, but allow an amendment, except in those cases where the statute is completely unconstitutional by virtue of a lack of power in the legislature to enact it. But where a statute is unconstitutional in part only, it may be laid down, as a general rule, undoubtedly in all jurisdictions, that the statute may be amended by obliterating the invalid provisions or by correcting those which violate the constitution." This will show that the view of the Courts is generally opposed to the contention of the learned Attorney‑General. In the first case cited by the learned Attorney‑General on this point, that is, A I R 1952 Pb. 55 a passage from Will's Constitu?tional Law has been cited with full approval. Following is the passage :‑ "Probably a majority of the Courts have rejected the theory that an unconstitutional Act has no existence, at least for the purpose of amendment. The unconstitutional Act physically exists in the official statutes of the state and is there available for reference, and as it is only unenforceable, the purported amend?ment is given effect. If the law as amended is constitutional, it will be enforced. The amendment need not be intelligible and complete on its subject although that is obviously desirable. "This escape from the legal fiction that an unconstitutional Act does not exist is sound. That fiction serves only as a top convenient method of stating that an unconstitutional Act gives no rights or imposes no duties. This conclusion should not be used to determine an issue which was not considered in formulating the fiction. The intent of the legislature in amend?ing an unconstitutional Act is just as easily ascertained as it is when it amends a valid Act. Amendment offers a convenient method of curing a defect in an unconstitutional Act." This passage fully supports the view that amendment of an unconstitutional Act is only a matter of convenience. The learned Attorney‑General also based an argument on Article 224 of the Constitution. The learned Attorney‑General contended that clause 2 of this Article empowered the President to amend a law which offended against fundamental rights so as to cure its defect and that this implied the existence of the offending law. If clause (2) in fact empowered the President to effect such an amendment it would not help the learned Attorney‑General in view of what I have already said about amendments being a convenient method of enactment. But I do not accept that the intention of clause (2) is to empower the President to make amendments so as to bring the law in accord with fundamental rights. "Adaptation" and "modification" do not imply a general legislative power so as to authorise the President to legislate in any manner he liked in respect of an Act which had been rendered void by fundamental rights. If this was the intention, Article 4 would have been differently worded and would have contained a qualification as to power of the President. Clause 2 of Article 224 in my opinion covers only laws which are continued in force by clause (1). Clause (1) does not continue in force enactments which are rendered void by Article 4 because it excepts what is expressly provided for and Article 4 is an express provision. The correspond?ing Article in the Indian Constitution is 372, and a question had arisen in A I R 1950 Pat. 265 as to whether the President had now to amend a law that was rendered void by a fundamental right. What the learned Judge held will appear from the following head‑note :‑ "The detention provisions in the Bihar Act III (3) of 1950 are completely inconsistent with the fundamental rights prescribed in Articles 22 (4) and (5) of the Constitution of India and con?sequently, directly the Constitution came into force on the mid?night of 25th January 1950, these provisions became void under Article 13 (1) of the Constitution and they could not be revived or rendered valid by any Act of the President purporting to do so under Article 22 (7) read with Article 373 of the Constitution; nor could the President do so by any adaptations contemplated by Article 372 of the Constitution". Let me now sum up my conclusions on the second argument of the learned Attorney‑General. (1) The question as to what is law in Pakistan today is to be decided only with reference to Article 4 of the President's Order of the 10th October, 1958. (2) In accordance with that Article, it is only what was law immediately before the Proclamation of the 7th October 1958 that is law in Pakistan today, and as the effect of withdrawal of fundamental rights could only come into existence after the' Proclamation the effect of such withdrawal is irrelevant for determining what is law in Pakistan. (3) The effect of the first and second clauses of Article 4 of the late Constitution was not different and the existing laws altogether disappeared as laws, Let me add here that there is no reason to impute to Article 4 of the President's Order an intention to revive oppressive laws for that is what the laws in conflict with the fundamental ,rights were. These laws cannot stand in the way of the President or the Martial Law Administrator who can alter or amend any of them. True, the fundamental rights should not stand in the way of the present Government for we are passing through an emergency period. But it is sufficient that the fundamental rights should not in future stand in the way of the law makers and it was not necessary that the old oppressive laws should have been revived. At the end of his arguments, the learned Attorney‑General referred to two cases decided by their Lordships of the Supreme Court of Pakistan, the actual decisions of which were not con?sistent with the view that fundamental rights affect "existing laws". In neither of the two cases was the question before us raised. The mere fact that our answer would not be consistent with the actual' decision in those cases does not relieve us of the duty of answering the question referred to us. If in such circumstances we regarded a matter as concluded the result would be that we would be deprived of the most valuable exposition of the law on the point in dispute by their Lordships. It will be observed that in A I R 1955 S C (Ind.) 781 the learned Judges had regarded the matter as res integra in spite of the decision in Saghir Ahmed's case (A I R 1951 S C (Ind) 126) because the point had been conceded at the bar. It may also be pointed out that the learned Attorney? General has conceded that so far as laws enacted after 22nd March 1956 are concerned, they will not be laws in Pakistan if they were in conflict with fundamental laws. What has appeared in today's papers should be conclusive of the matter. There has appeared today a declaration by the President a passage from which I reproduce: "It is gratifying that the Pakistan people of different reli?gions, customs, and languages live happily together and are assured complete freedom to process, practise and propagate their religions, to establish educational and religious institutions, to hold and acquire property, and to adopt any profession which they choose on a footing of equality. In short every citizen of Pakistan irrespective of caste, creed or colour enjoys his inalienable right to life, liberty and security of person". To impute to a person who makes sueh a declaration the intention of destroying fundamental rights is to do him grievous injustice. I agree that the question be answered in the negative.