CONSTITUTIONAL LAW - I

“DEEP CHAND VS. STATE OF UTTAR PRADESH”

Submitted to:- Submitted by:-

Prof. Snigdha Singh Ishwar Charan(16ba044)

(Asst. Professor of Law)

1
 CONTENTS

1.Acknowledgements .....................................................................Error! Bookmark not defined.

2.Facts ............................................................................................................................................. 4

3.Issues ............................................................................................................................................ 6

4.Arguments and Judgements ......................................................................................................... 7

A. If the passing of the Motor Vehicles (Amendment) Act , 1956 wholly voids the
previously existing Uttar Pradesh Transport Service(Development) Act, 1955 under the
article 254(1) of the Indian
Constitution?.............................................................................Error! Bookmark not defined.

B.Can the amendment of the Constitution to remove a constitutional limitation on a state

legislative to make a particular law has the effect of validating the particular Act
constructed by it when it’s power was under the ambit of such legislation?.......................9

C.Does the scheme which was framed under the original Act to act prospectively comes
under the definition of the word ‘instrument’ in the section 68(B) of the new Amending
Act? If so, then whether the provision enlisted in the new Act would take over those of
the scheme after coming into force and the render the original Act with no operative
force?..................................................................................................................................15

5.Judgement Analysis ..................................................................................................................... 6

6.Conclusion ..................................................................................Error! Bookmark not defined.

2
3
 ACKNOWLEDGEMENTS

“Gratitude is the fairest blossom that springs from the soul.”I“have taken efforts in this project.”
“However,“it would not have been possible without the kind support and help of many
individuals.””I would like to extend my sincere thanks to all of them.”

“I am highly indebted”my“Course Teachers for their exemplary guidance, monitoring and

constant encouragement throughout the course of’this ‘project, providing necessary information
and supporting incessantly in the due course. The blessing, help and guidance given by’him
‘time to time shall carry us a long way in the journey of life on which we are about to embark.’

‘My thanks and appreciations also go to my colleagues in developing the project and people who
have willingly helped me out with their abilities. I am thankful to and fortunate enough to get
constant encouragement, support and guidance from all the Teaching Staff of NLUO, Cuttack
which helped us in successfully completing my project work.’

4
 FACTS

The appellants were in the business of State‘Carriage Operators for a’very formidable‘number of
years.’They operated their carriages‘on different routes in Uttar Pradesh along with’the‘buses’
which were‘owned by the State Government. The’appellants had the permit of operation‘under
the Motor Vehicles Act, 1939.’

‘The’Uttar Pradesh‘State’Legislature obtained the‘assent of the President’on 23rd April, 1955

and passed the Uttar Pradesh Transport Services (Development) Act, 1955 and published it on
24th April, 1955. The Government then issued a notification under the Section 3 of the Uttar
Pradesh Transport Services (Development) Act, 1955 under which it was stated, that the routes
which were earlier served by both private and Government operated stage carriages would now
only be served by the Government operated stage carriages exclusively.

The State Government then published a notification on 12th November 1955 under the Section 4
of the Uttar Pradesh Transport Services (Development) Act to formulate the scheme for the
routes which are aforementioned. The appellants under the Section 5 of the Uttar Pradesh
Transport (Development) Acr, 1955 received the notice and were asked to report objections, if
any. The objections were to be heard by a Board on 2nd January, 1956. On that day, every
region’s operator with the exception of Agra region who had filed the objections told the board
about their problems. The operators of the Agra region were given another chance to voice their
issues on 7th January, 1956 .Apparently, the operators of Agra region didn’t come on 7 th January,
1956. On 25th June, 1956, an order which was originally issued by the Transport Commissioner
was sent by the Secretary of the Regional Transport Authority, Agra to the Operators of the Agra
region banning the operation of their stage carriers on the routes aforementioned while
transferring their permits to other routes

A similar notice with similar terms was then sent to other operators on 7th July, 1956. The
appellants challenged the validity of the Uttar Pradesh Transport Service (Development) Act,
1955 and the notifications which are given under it in Allahabad High Court.

Prior to this in 1953, the application for the renewal of the permanent permit of the appellant was
rejected. However, on appeal on 6th September, 1953, his permit was renewed for three years

5
starting from 1st November, 1953 to 31st October, 1953. The nationalisation scheme was initiated
and approved between the date of refusal of application of permit and the date when his
application was accepted. On 11 October,1956, the applicant applied for the renewal of his
permit. At that time, he was notified by the Road Transport Authority, Allahabad, that no action
could be possible. Therefore, the appellants contended that the entire thing was taken behind his
back, hence he wouldn’t be bound by the scheme.

6
 ISSUES

Supreme Court of India while considering the appeal decided to look into the following
questions of law.

• Can the amendment of the Constitution to remove a constitutional limitation on a

state legislative to make a particular law has the effect of validating the particular
Act constructed by it when it’s power was under the ambit of such legislation?

• If the passing of the Motor Vehicles (Amendment) Act , 1956 wholly voids the
previously existing Uttar Pradesh Transport Service(Development) Act, 1955 under
the article 254(1) of the Indian Constitution?

• Does the scheme which was framed under the original Act to act prospectively
comes under the definition of the word ‘instrument’ in the section 68(B) of the new
Amending Act? If so, then whether the provision enlisted in the new Act would take
over those of the scheme after coming into force and the render the original Act
with no operative force?

7
 ARGUMENTS AND JUDGEMENTS

A. Can the‘amendment of the Constitution’to remove‘a constitutional limitation on a’

state legislative‘to make a particular law has the effect of validating the’particular
‘Act’constructed‘by it when’it’s‘power was’under the ambit of such legislation?

It’s a known “fact that the Parliament and”1 the “State Legislatures have”2 the authority‘to make
laws’regarding the matters corresponding to the lists in schedule 7. However these powers are
subject to the limitations of the Article 13 or as we can say the‘power is subject to the
limitations’presented‘by’the‘Part’3 of the‘Indian Constitution.’Hence it is easy to assume that
any Legislature has no‘power to make laws’which is not‘in accordance to‘the provisions’
‘contained’in the‘Article’13’. The 1st clause of the Article 13 is related to the laws which were
framed prior to the Constitution. It says that those pre- Constitution laws which are not in
accordance to the Part 3 of the Constitution would be deemed void as far as that non-accordance
occurs. Therefore we can see that in a way it recognizes the pre-Constitution laws. The 2nd clause
of the Article 13 however ‘prohibits’ the‘state to make’any’new law which stands inconsistent
“to ‘the rights’given‘by’the"Part’3‘of’the Constitution.”3’So there is a stark difference between
the two clauses. The 1st clause only subsists the part of the law which stands inconsistent to the
Part 3 of the Constitution, whereas the 2nd clause makes any post-Constitution law contravening
to part 3 of the Constitution a “nullity from its inception”.

“Clause 2 of the Article 13 clearly”4 ‘states that no law’is to be‘made which takes away the’
rights provided‘by’the‘Part’3‘of the constitution.’It does not provide any reason of contention for
any State claiming it to be ‘mere checks’ and not a prohibition. A proper prohibition can’t be
waived off just by drawing analogies or by taking inspiration from the constitution of other
progressive countries, and nor can we say that the word “any law” in the second line of the

1
[1957] AIR 297 (SC).
2
(1983) 4 AIR 45 (SCC).
3
(1990) 2 562 (SCC).
4
Hoechst Pharmaceuticals Ltd vs State of Bihar (1990) 2 562 (SCC).

8
Article 13(2) is a proper argument for the existence of a “law made in spite of”5 such
‘prohibition.’According to‘Cooley in his book’(Constitutional Limitations, page 379),

“From what examination has been given to this subject, it appears that whether a statute is
constitutional or not is always a question of power; that is, a question whether the legislature
in the particular case, in respect to the subject-matter of the act, the manner in which its object
is to be accomplished, and the mode of enacting it, has kept within the constitutional limits
and observed the constitutional conditions.”

‘In the case of K.C. Gajpati’Narayan Deo v The State Of Odisha (Page 11), it was said that when
a constitution gives‘legislative powers’to‘different bodies to act within’a definite scope ‘marked
by’certain legislative limitations, or when the limitations are with respect to the fundamental
rights, the questions do come out that whether the law in due course of a case has or has not
either in the subject-matter or in the method of enactment, has “transgressed’ the scope of power
allocated to it by the constitution.

In an another case of “Keshavan Madhava Menon v The State of Bombay”6, the question’arose
that‘whether a prosecution under’a legislation, in this case,‘The Indian Press (Emergency
Powers) Act, 1931’can continue after‘the Constitution’came into being. It was contented that the
law in question is against the fundamental rights and hence it was void. Therefore it became
necessary for the courts to find out the effect of Article 13(1) on legislations post Constitution.
The‘court held that the Article 13(1)’didn’t make‘the’laws void ab initio, however it only made
them powerless after the date of commencement of constitution.

‘Hence the effect of Article 13(2)’’on laws”framed prior to the Constitution was not finally
decided by the judges as the“impugned law was a pre- Constitution”law. Article 13(1) was said
“to be prospective”in nature and hence it shouldn’t affect the laws which were made prior to
Constitution.“Article 13(1)”;“nullifies‘the effect of all inconsistent laws”and makes it devoid of
any legal power and has no“binding effect with respect to Fundamental Rights.”As“far as pre-
Constitution laws”are“concerned, the”decision has been derived from the Doctrine of Eclipse
that was developed“in“Bhikaji Narain Dhakras”vs.“The State Of Madhya Pradesh,”which stated
that laws made in pre- Constitution period may exist for some reason in post- Constitution period

5
See, Kaiser I Hind (P) Ltd. vs National Textile Corp Ltd, (2002) 8 SCC 182
6
(1954) AIR 752 (SC).

9
and this principle doesn’t affect the post- Constitution Laws which takes away the“Fundamental
Rights as”it“would”void“ab initio in toto”or to the extent of their”inconsistency“of the
fundamental rights.”

If“the”passing“of the”Motor Vehicles (Amendment) Act , 1956 wholly voids the previously
existing“Uttar Pradesh Transport Service(Development) Act, 1955”under“the”article
254(1)“of the”Indian Constitution?

Article 254 puts forward“a general rule.”Cl.“(2) is an exception to”the“article and the proviso”is
in accordance to the“exception. If there”is conflict“between the law made by the state and that
made by the parliament”in relation“to one of the matters”enlisted“in the Concurrent List,”the
parliamentary“law shall prevail to the extent of the repugnancy”and”the “law made by the state
shall”be void“to the extent of such”conflict. Within“cl. (2), if the”state“legislature”makes“a
provision”conflicting“to the provisions of the”parliamentary law, it would be valid only“if the
state”legislature“received”approval of the President. Indeed, even in such a case, Parliament may
accordingly correct, fluctuate or revoke the“law made by the”Legislative“of a State. In the
present case, the Uttar Pradesh Legislative Assembly,”in“the”wake“of”acquiring“the”consent of
the“President on April 23, 1955, passed the U.P. Act. Parliament”in this manner“passed the
Motor Vehicles (Amendment) Act (100 of 1956).”Hence, the statements“of Art. 254 would
apply to the”circumstance.“The”“primary“question is whether the”arrangements“of the Union
Law, i.e., the Motor Vehicles (Amendment) Act (100 of 1956),”are hostile“to the arrangements
of the U.P. Act and if so to what”degree.“Before we”continue“to”analyze the arrangements“of
the two Acts,”it might“be advantageous“to”see“the law”relating to the control“of repugnancy.
Nicholas in his “Australian Constitution,”second“Edition”, page 303, refers to three”test“of
inconsistency”and repugnancy”7 :-

(1) “There may be inconsistency in the actual terms of the competing statutes;”
(2) “Though there may be no direct conflict, a State law may be inoperative because the
Commonwealth law, or the award of the Commonwealth Court, is intended to be a
complete exhaustive code; and”

7
H. S Nicholas, The Australian Constitution (2nd edn, The Law Book Co of Australasia 1952).

10
 (3) “Even in the absence of intention, a conflict may arise when both State and
Commonwealth seek to exercise their powers over the same subject matter.”

"The Court in the case of “Tika Ramji v. The State of Uttar Pradesh”8 accepted “the said three
rules, among others, as useful guides to test the question of repugnancy. “In Zaverbhai Amaidas
v. The State of Bombay”9, this Court laid down a similar test. At page 807, it is stated :
"Repugnancy between two statutes may along these lines be determined on the premise of” the
accompanying three principles:

(1) “Whether there is direct conflict between the two provisions;”

(2) “Whether Parliament intended to lay down an exhaustive code in respect of the subject
matter replacing the Act of the State Legislature”

(3) “Whether the law made by Parliament and the law made by the State Legislature occupy
the same field.”

“We shall now”inspect“the”arrangements“of both the Acts in some detail”so as“to”learn“the”

degree“of the repugnancy between them.”The Scheme of”the“U.P. Act”might be outlined hence:
“Under the U.P. Act.”"State Road Transport Service"“is”characterized “to mean transport”
benefit“by a public service vehicle”possessed“by the State Government. Under s. 3:”

• Where the State Government is of the feeling that it is fundamental in light of a legitimate
concern for the overall population and for subserving the benefit of all, or for keeping up
and creating productive street transport framework so to direct, it might, by warning in
the official Gazette proclaim that the street transport benefits as a rule, or a specific class
of such administration on any course or segment thereof as might be determined, should
be run and worked solely by the State Government, or by the State Government in
8
Tika Ramji vs State of UP (1956) AIR 676 (SC).
9
Zaveribhai Amaidas vs Tika State of Bombay (1954) AIR 752 (SC).

11
 conjunction with railroads or be run and worked halfway, by the State Government and
somewhat by others under and as per the arrangements of the Act.

"After“publication of the”notice“under s. 3, the State Government or, if the State Government

so”coordinates, the“Transport Commissioner”distributes“in such”way“as”might“be”indicated
“a”plan with regards“to the State Road Transport Service”accommodating“all or any of the
matters”identified“in cl. (2) of s. 4 Cl. (2) of s. 4”coordinates“that, among others, the scheme
should provide the particulars of the courses“or”segments“thereof over which and the date on
which the State Transport Service will”begin“to”work, the streets concerning which private
people might be permitted to work“upon, the routes that will be served by the State Government
in conjunction with”railroads,“the“abridgement”of the”courses secured“by the”current allows or
exchange of the licenses to other course “or” courses. S.“5”charges the“Transport Commissioner
to”pull out“to the”allow “holder”obliging“him to”stop an announcement“in”composing
“whether he”consents“to the”exchange“of the”allow and“in cl. (2) thereof, it is”recommended
“that” on the off chance that he acknowledges the exchange, he is not qualified for any pay, but
rather on the off chance that he doesn't consent to the exchange, his allow will be scratched off
subject on“his right”side“to get”pay“under the Act. Under s. 6 any”individual “whose interests
are”influenced“may”inside“30 days from the” distribution “of the scheme,” document
protests“on it before the Transport Commissioner who”should“forward them to the Board
constituted under s. 7”, comprising of the Commissioner of a Division, Secretary to Government
in the Transport Department and the Transport Commissioner. The Board should consider the
complaints, assuming any, sent under s. 6 and may either affirm, adjust or modify the scheme.
The scheme so affirmed or changed or adjusted under s. 7 might be distributed in the Official
Gazette. Any scheme distributed under s. 8 may whenever“be”crossed out“or”
adjusted“or”modified“by the State Government.” S.“10 gives the”outcomes“of the” production
“under s. 8.”S.“11”gives pay to untimely cancelation of grants or abridgement of routes to
routes, as might be resolved as per the standards indicated in Schedule I. In Schedule I,
remuneration is 10payable as takes after:

(1) “For every complete month or one part of a month exceeding fifteen days of the
unexpired period of the permit.”“Rupees hundred”

10
Uttar Pradesh Transport Service (development) Act, 1955.

12
 (2) “For part of a month not exceeding fifteen days of the unexpired period of” “a permit.
Rupees fifty”

(3) Given dependably that the compensation shall not be less than Two hundred Rupees in
any situation.

S. 12 approves the“State Government,”for“a”situation“where the permit has been cancelled,

to”buy“the motor vehicle covered by it if the holder of the permit offers to sell, upon terms and
conditions”set“down in Schedule”II gave“the vehicle is of the kind”of“manufacture and
model”advised“by the State Government and”gave furthermore“that the vehicle is mechanically
in a sound condition or”generally announced“fit by the Transport Commissioner or his
nominee.”Ss.“13 to 18”accommodates“a State Machinery for the”improvement“of motor
transport industry.”S.“19 to 22 are”arrangements“which are”significant“in nature. shortly stated,
under the U.P. Act the State Government” start“a”plan accommodating “the nationalization of
the”street“transport in entire or to some extent; the complaints documented by the people
influenced by the plan are heard by a Board of three officers named by the State Government;
the Board in the wake of hearing the protests may affirm, adjust or modify the scheme; the
scheme so affirmed might be scratched off, changed or modified by the State Government by
taking after a similar procedure received for framing the first scheme; and the holders of grants
wiped out might be given new allows in the event that they acknowledge and if not they will be
paid such pay as recommended under the Act. Under the Amendment Act 100 of 1956, whereby
another part was embedded in the Motor Vehicles Act of 1939, the procedure endorsed“is
different. Under s. 68-A of that Act, &'State Transport Undertaking'is defined to mean
any”endeavour giving street“transport”benefit,“where such undertaking is carried on by,” -

(i) “the Central Government or a State Government;”

(ii)” any Road Transport Corporation”set up under s. 3 of the Road Transport Corporations Act,
1950;”

(iii)“the Delhi Transport Authority”set up“under s. 3 of the Delhi Road Transport Authority Act,
1950; and”

13
(iv) “any”district“or any”organization“or”organization claimed“or controlled by the State
Government.”

“Under s. 68C, the State Transport Undertaking”starts“a”plan in the event that it is of opinion
that with the end goal of giving an effective, sufficient sparing and appropriately co-
ordinated“road transport service, it is”fundamental“in the”general population“interest that road
transport service”as a rule,“or”a specific“class of such”administration“in”connection“to any”
region“or”course“or portion thereof”ought to“be run and”worked“by the State Transport
Undertaking,”regardless of“whether to the exclusion complete or partial, of”different people or
something else.“Section 68D says that any”individual influenced“by the Scheme may”record
complaints“to the said Scheme before the State Government; the State Government may,”in
“the”wake of considering the protests and in the wake of giving a chance to the“objectors or
their”agents“and the”delegates“of the State Transport Undertaking to be heard in the matter,”
affirm“or”adjust“the Scheme. Any Scheme”distributed“may”whenever“be cancelled”or adjusted
“by the State Transport Undertaking”taking after a similar technique; with the end goal of
offering impact to the“Scheme, the Regional Transport Authority, inter alia, may”wipe out“the”
current allows“or”change“the terms of the”current grants.“Section 68G”sets out“the”standards
“and”strategy for“compensation. Under that section compensation is payable for”each finished
“month or”some portion“of a month”surpassing fifteen days of the unexpired time of the licenses
at Rs. 200 and for some portion of a month not surpassing fifteen days of the unexpired time of
the allow at Rs. 100. Under the Amending Act, the substance of the arrangements is that the
Scheme is started by the State Transport Undertaking carried on by any of the four establishment
specified in s. 68A, including the State Government; complaints are recorded by the affected
parties to the Scheme, the influenced parties and the Undertaking are heard by the State
Government, which, in the wake of hearing the complaints, favours or changes the Scheme.
There is no arrangement for exchange of grants to some different courses, or for the buy of the
transports by the State Government. Compensation payable is twice that settled under the U.P.
Act. One essential thing to be seen is that the U.P. Act is planned, i.e., comes into force only
from the date of the passing of the Amending Act and the strategy recommended applies just to
schemes that are started under the arrangements of the U.P. Act. correlation of the

14
aforementioned arrangements of the U.P. Act and the Amending Act shows that both the Acts
are planned to work in regard of a similar topic in a similar field. The unamended Motor
Vehicles Act of 1939 did not make any arrangement for the nationalization of transport
administrations, however the States acquainted changes with actualize the plan of nationalization
of street transport.

The law made by Parliament, whether passed before or after the law made by the Legislature of
such State shall prevail and the law made by the legislature of the State shall, to the extent of the
repugnancy, be void. The contention here is that the U.P Act and the Amending Act operate in
the same field in respect of the same subject-matter, i.e., the nationalization of bus transport, the
U.P Act becomes void under Article 254 (1) of the constitution.

This argument disregards the important words “to the extent of repugnancy” in the said clause.
What is void is not the whole Act but rather just to the degree of its repugnancy with the law
made by Parliament. The personality of the field may identify with the essence and substance of
the topic and furthermore the time of its operation. At the point when both concide, the
repugnancy is finished and the entire of the State Act becomes void. The operation of the Union
Law might be completely planned leaving the State Law to be compelling with respect to thing
officially done. Areas 68C, 68D and 68E, embedded by the Amending Act, obviously
demonstrate that those segments are concerned just with a plan started after the Amending Act
came into constrain. None of the areas, either explicitly or by necessary implication,
demonstrates that the plans as of now finished ought to be revived and fresh schemes be framed
according to the method recommended there under. Hence, under Art. 254(1), the law under the
U.P. Act subsists to bolster the schemes framed there under and it becomes void just in regard of
schemes framed under the Central Act.

Does the scheme which was framed under the original Act to act prospectively comes under
the definition of the word ‘instrument’ in the section 68(B) of the new Amending Act? If so,
then whether the provision enlisted in the new Act would take over those of the scheme
after coming into force and the render the original Act with no operative force?

15
The applicable Articles of the Constitution read as takes after : Article 245 : "(1) Subject to the
arrangements of this Constitution, Parliament may make laws for the entire or any piece of the
domain of India, and the Governing body of a State may make laws for the entire or any piece of
the State."

Article 246 : "(1) Notwithstanding anything in provisions (2) and (3) Parliament has selective
energy to make laws as for any of the issues identified in List I in the Seventh Schedule (in this
Constitution alluded to as the "Association List").

(2) Notwithstanding anything in condition

(3), Parliament and, subject to proviso (1), the Legislature of any State additionally, have energy
to make laws with deference to any of the issues counted in List III in the Seventh Schedule (in
this Constitution alluded to as the "Simultaneous List"). (3) Subject to conditions (1) and (2), the
Legislature of any State has restrictive energy to make laws for such State or any part thereof as
for any of the issues identified in List II in the Seventh Schedule (in this Constitution alluded to
as the "State List").

(4) Parliament has energy to make laws as for any issue for any some portion of the region of
India excluded in a State despite that such matter is an issue counted in the State List."

Article 13 : "(1) All laws in drive in the region of Indian quickly before the initiation of this
Constitution, in so far as they are conflicting with the arrangements of this Part, might, to the
degree of such irregularity, be void. (2) The State might not make any law which takes away or
abbreviates the rights presented by this Part and any law made in contradiction of this provision
should, to the degree of the repudiation, be void."

Article 31 (Before the Constitution (Fourth Amendment) Act, 1955) :

"(1) No individual should be denied of his property spare by specialist of law.

(2) No property, versatile or unflinching, incorporating any enthusiasm for, or in any

organization owning, any business or modern endeavour, might be taken ownership of or
procured for open purposes under any law approving the taking of such ownership or such
securing, unless the law accommodates pay for the property claimed or obtained and either fixes

16
the measure of the pay, or indicates the standards on which, what's more, the way in which, the
pay is to be resolved and given".

The joined impact of the said arrangements might be expressed along these lines : Parliament
and the Legislature of States have energy to make laws in regard of any of the issues specified in
the important records in the Seventh Schedule and that energy to make laws in subject to the
arrangements of the Constitution including Art. 13, i.e., the power is made subject to the
constraints forced by Part III of the Constitution. The general energy to that degree is
constrained. A Legislature, along these lines, has no energy to make any law in criticism of the
directive contained in Art. 13.

Article 13(1) manages laws in compel in the region of India before the beginning of the
Constitution and such laws in so far as they are conflicting with the arrangements of Part III
might, to the degree of such irregularity be void. The statement, along these lines, perceives the
legitimacy of the pre- Constitution laws and just announces that the said laws would be void
from there on to the degree of their irregularity with Part III; while proviso (2) of that article
forces a preclusion on the State making laws taking without end or condensing the rights
presented by Part III and announces that laws made in repudiation of this statement should, to the
degree of the contradiction, be void. There is a reasonable qualification between the two
provisos.

Under provision (1), a pre-Constitution law subsists but to the degree of its irregularity with the
arrangements of Part III; while, no post-Constitution law can be made negating the arrangements
of Part III, and hence the law, to that degree, inspite of the fact that made, is a nullity from its
initiation. On the off chance that this unmistakable refinement is borne as a top priority, a
significant part of the cloud raised is dissipated. Whenever provision (2) of Art. 13 says in clear
and unambiguous terms that no State might make any law which takes away or abbreviates the
rights gave by Part III, it won't profit the State to battle either that the statement does not
encapsulate an abridgement of the ability to administer or that it forces just a check yet not a
preclusion.

A sacred preclusion against a State making certain laws can't be whittled around similarity or by
drawing motivation from choices on the arrangements of different Constitutions; nor would we
be able to value the contention that the words "any law" in the second line of Art. 13(2) places

17
the survival of the law made in the teeth of such forbiddance. It is said that a law can come into
presence just when it is made and subsequently any law made in contradiction of that condition
assumes that the law made isn't a nullity. This contention might be unobtrusive in any case, isn't
sound.

The words "any law" in that proviso must mean an Act passed or made verifiably, despite the
denial. The consequence of such contradiction is expressed in that provision. A plain perusing of
the proviso shows, with no sensible question.

That the preclusion goes to the foundation of the issue and constrains the State's energy to make
law; the law made despite the restriction is a still-conceived law. Cooley in his book "Established
Limitations" (Eighth Edition, Volume I), states at page 379 : "From what examination has been
given to this subject, it gives the idea that regardless of whether a statute is protected or not is
dependably an issue of energy; that is, an inquiry whether the governing body in the specific
case, in regard to the topic of the demonstration, the way in which its protest is to be achieved,
and the method of instituting it, includes kept inside the established restrains and watched the
sacred conditions."

The“Judicial Committee”in “The Queen v. Burah”11: "The set up courts of Justice, when an
inquiry emerges whether the recommended limits have been surpassed, should of need verify
that question; and the main manner by which they can legitimately do as such, is by looking to
the terms of the instrument by which, certifiably, the authoritative forces were made, and by
which, adversely, they are limited."

The”Judicial Committee”again in “Attorney-General for Ontario v. Lawyer General for

Canada”12 freshly expressed the lawful position at page 583 as takes after :-

" In the event that the content is express the content is indisputable, alike in what it coordinates
and what it denies."

A similar thought is clearly communicated by Mukherjea, J., as he at that point might have been,
in “K. C. Gajapati Narayan Deo v. The State of Orissa.”13 It is expressed at page 11 as takes after
:-

11
Queen vs Burah 178 (AC).
12
(1912) A.C. 571

18
"In the event that the Constitution of a State appropriates the authoritative forces among diverse
bodies, which need to act inside their particular circles stamped out by particular administrative
sections, or if there are confinements on the authoritative specialist in the state of major rights,
questions do emerge as to regardless of whether the lawmaking body in a specific case has or has
not, in regard to the topic of the statute or in the technique for establishing it, transgressed the
breaking points of its protected forces."

JUDGEMENT ANALYSIS

“Deep Chand vs State of Uttar Pradesh”is a landmark judgement regarding many aspects of the
Indian Constitution. Not only did it mark out“a clear distinction between the two clauses of”
Article 13, it also helped us to understand the Doctrine of Repugnancy and the Doctrine of
Eclipse.

The judgement given by the judges regarding the first issue very beautifully describes the extent
of Doctrine of Eclipse. They“said that the words“the State shall not make any law”mean that
“the laws that came ‘after’ the Constitution in contravention to the Fundamental Rights. So the
“Doctrine of Eclipse”does not“apply to”those“pre”-Constitutional“Laws”and hence it could not
instil life in that law even if the provision which is in contravention to Fundamental Rights in
that law is amended later on.

When we look at the judgement closely, we would observe that very fundamental questions of
law were asked. In the second issue it was questioned that whether an act of central original
would overrule an act of state origin? The question though simple, spills forth an array of
questions. However , the learned judges very lucidly made us understand that the repugnancy
occurs only when there is a direct conflict. They further on described that direct conflict arises
only when the laws are ‘fully inconsistent’ and have ‘irreconcilable provisions’. This thing also
applies when the laws“made by”the state legislature“and the”central“legislature occupy the
‘same field’.” This gives us a brilliant insight on the Doctrine of Occupied Field.

13
KC Gajapati Naryan Deo vs State of Orissa (1953) AIR 375 (SC).

19
The case also explains that what should be the extent of to which the Central law would prevail
in the case of repugnancy. It said that although the final authority rests with the decision of the
Centre, the State law if assented to the by the Centre would however prevail in that particular
state only till the inconsistency lasts. The State law however, in any case should not and cannot
override the whole Central Law.

Other than addressing the important substantial questions of law this landmark case also speaks
about the Directive Principles saying that these principles are the ‘ideal’ and ‘model’ guidelines
to run this country, therefore it should it always act as a guide to exercise the legislative power
however they shouldn’t be allowed to govern the same because the ideal conditions may happen
to be very different from the actual conditions.

20
 CONCLUSION

The last point to be noted is that whenever a law is declared to be void on the ground of
repugnancy with another law or another is allowed to prevail over it, it results in some invalidity
which this will suffer from. The invalidity may suffer from absolutism, relative to the law when
found to be invalid, it is found to be dead and when it is relatively alive though can’t be enforced
further. The author’s humble opinion when law is enacted by the legislature which lacks the
legislative capacity to enact the law because it relates to the matter which is found to relative to
the another legislature, law found to be totally invalid or inoperative

21
 BIBLIOGRAPHY

Books - Constitutional law – 1 Structure (Udai Raj Rai)

22