What happens to a statute when the Supreme Court declares it unconstitutional, either in its entirety or in part? Does it vanish like a disappearing message on WhatsApp or does it get temporarily eclipsed due to a declaration by the Lords? The question was the subject matter of a detailed judgment delivered many moons ago by the Supreme Court in Behram Khurshid Pesikaka v. State of Bombay (hereinafter referred to as "the Pesikaka case") which is an authority on this point of law. The author through this column revisits the law laid down by the Supreme Court in this case.
- THE FACTS
The stage is set in the 1950's Tony island of Colaba in uptight South Bombay, an area known for bad drivers with no parking skills. The protagonist of this story is a Parsi man named Behram Khurshid Pesikaka who seemed to be a colourful personality with a mundane job: An Officiating Regional Transport Officer, Bombay Region. On 29th May 1951 at 9:30 PM this RTO officer knocked down three persons with his jeep at Colaba Bus Stand. The cops came (presumably in another jeep), arrested him, and took him to hospital for a medical examination where the doctor found that his breath was smelling of alcohol. His pupils were semi-dilated and were reacting to light, he had coherent speech and most importantly could walk in a straight line (relatable to those of you who have been there). The 'doc' felt that he had not consumed daru per se but had taken alcohol in some medicinal form. He was tried under two offences. One under Section 338 of the Indian Penal Code on three counts for causing grievous hurt to three injured persons due to rash and negligent driving and the other under the then Section 66 (b) of the Bombay Prohibition Act. Pesikaka in his defense stated that he had not consumed any liquor but had taken a medical preparation, a dose of 'B.G. Phose' containing a small amount of alcohol prior to the accident. The Presidency Magistrate acquitted Pesikaka of both offences, but the High Court convicted him of one of the offences under Section 66(b) by reversing the order of the Magistrate. The matter was carried to the Supreme Court in Special Leave by Pesikaka (hereinafter referred to as "the Appellant") and was originally heard by a Bench of three Judges who delivered separate opinions on 19th February 1954.
- BEFORE THE SUPREME COURT
Before the Supreme Court it was contended by the Appellant that after the advent of the Constitution of India, 1950, (hereinafter referred to as "the Constitution"), the Supreme Court in The State of Bombay v. F.N. Balsara,(hereinafter referred to as "F.N. Balsara") had declared Section 13(b) of the Bombay Prohibition Act, 1949 (hereinafter referred to as "the Prohibition Act"), that prohibited the consumption and use of liquor, as invalid, because it violated the right to property under the then Article 19 (1) (f) so far as it affected consumption or use of liquid medicinal and toilet preparations containing alcohol and also declared Section 66 (b) as "inoperative and unenforceable so far as such medicinal and toilet preparations containing alcohol were concerned." The Court in F.N. Balsara had declared Section 13(b) invalid to the extent of the inconsistency, i.e. "so far as it affected the consumption or use of liquid medicinal or toilet preparations containing alcohol." Therefore, according to the Appellant, it was incumbent on the prosecution, to prove that the accused had consumed or used an intoxicant which contravened the provisions of the Act which after F.N. Balsara's judgment did not include medicinal and toilet preparations. However, Respondent argued that F.N. Balsara granted an exception or a proviso to Section 13 and the burden was on the accused to prove that he fit within that exception.
In order to arrive at a conclusion one way or another, the Original Bench of Bhagwati, Jagannadhadas and Venkatrama Ayyar JJ. had to first determine the effect of the declaration of the Supreme Court in F.N. Balsara. In other words, the Bench had to decide the legal effect, a declaration of unconstitutionality had on a statute in India. These were the early days of the Constitution and the Supreme Court had to directly decide this issue for perhaps the first time. The Constitution was not built "on a tabula rasa but upon foundations afforded by the Government of India Act 1935";an act which was a legacy of the British Raj. The main feature of the Constitution was to maintain the doctrine of parliamentary supremacy with a provision for judicial review. The concept of parliamentary supremacy is borrowed from the United Kingdom and the doctrine of judicial review is borrowed from the American Constitutional experience. All three judges extensively relied on the principles of American Constitutional Law to form their opinions.
The opinion of Bhagwati J.
Bhagwati J. referred to the oft-quoted passage by Cooley on Constitutional Limitations which states that when a statue is declared unconstitutional,
"it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for 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 has to be regarded as having never at any time been possessed of any legal force."
The learned Judge then referred to the dictum of Field J. of the US Supreme Court in Norton v. Shelby County in which the Associate Justice stated that
"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."
Apart from referred to Rottschaefer, Bhagwati J. also referred to passages from Willoughly on Constitution of the United States and Willis on Constitutional Law. Both jurists were of the similar view that when it comes to an unconstitutional statute, the Court simply refuses to recognize it and ignores it, but the decision affects parties inter se and their private rights. A declaration of unconstitutionality may operate as precedent but does not result in annulling or repealing a statute and it does not strike the statute from the statute book. Bhagwati J. was of the view that the though declaration in F.N. Balsara was a judicial pronouncement under Article 141 and was the law of the land, "that declaration was not to enact a statutory provision or to alter or amend Section 13(b)" of the Prohibition Act or introduce an exception or proviso. The effect of the declaration was that the prohibition in Section 13 (b) was enforceable regarding consumption or use of prohibited liquor like wine, beer, toddy etc. and all non-medical and non-toilet liquid preparation but was not enforceable for liquid medicine or toilet preparation. The argument of the Respondent that the declaration carved out an exception or proviso to Section 13(b) thereby shifting the burden of proof on the accused to fit his case within the exception, vide Section 105 of the Indian Evidence Act, 1872 was rejected by Bhagwati J. According to Bhagwati J., the declaration
"had the effect of rendering the prohibition of consumption or use of liquid medical and toilet preparations containing alcohol as having never at any time been possessed of any legal force and so not to be enforceable whenever any accused person was charged with having contravened the provisions of Section 13(b) of the Act." (emphasis supplied)
Eventually Bhagwati J. opined that "The prosecution ought to have proved that the Appellant had in contravention of the provisions of the Act consumed an intoxicant meaning any liquor" prohibited to be consumed in accordance with the declaration in F.N. Balsara, and thereafter allowed the Appeal and quashed and set aside the conviction of the Appellant by the High Court.
Venkatarama Ayyar J. disagreed
Venkatarama Ayyar J. on the other hand disagreed with the view taken by Bhagwati J. The learned Judge, like Bhagwati J., rejected the contention that F.N. Balsara amended or modified Section 13 (b) of the Prohibition Act. However, according to the learned Judge, "the Appellant had to establish that what he had consumed was a medical preparation." According to the learned Judge, "the plea of unconstitutionality is not established unless all the elements necessary to sustain such a plea are established" and therefore, the Appellant had to make out a case that he had in fact consumed a medical preparation and "that Section 13(b) is bad in so far as it prohibits it."
Regarding the legal effect of the declaration of unconstitutionality, it had been argued by the Appellant that the declaration that Section 13(b) was void under Article 13 (1) of the Constitution in so far as it related to medical preparations. This intended consequence would mean that the offending section would have to be "read as if it did not include medical preparations." In order to analyze the legal effect of the declaration, Venkatarama Ayyar J. relied heavily on the American Constitutional doctrines to form his opinion. According to the learned Judge, two factors had to be considered; firstly, whether the constitutional prohibition which has been infringed affected "the competence of the legislature to enact the law or did it merely operate as a check on the exercise of a power which is within its competence" and secondly, if it was merely a check, whether it is enacted for the benefit of individuals or for the benefit of the general public on public policy grounds. According to the learned Judge,
"If the statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity. That would also be position when a limitation is imposed on the legislative power in the interests of the public, as, for instance, the provisions in Chapter 13 of the Constitution relating to inter-State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable." (emphasis supplied)
Apart from referring to various treaties on American Constitutional Law, the learned Judge referred to the observations made in decisions of the United States Supreme Court and opined that the concept or doctrine of waiver would also apply to the Indian Constitution. According to the learned Judge, when a law is found to be infringing a constitutional provision, it would be open to any person whose rights have been infringed to waive his fundamental rights after which there is no impediment in enforcing the law. The learned Judge noted the distinction made by American jurists between unconstitutionality of a statute arising due to lack of legislative competence and unconstitutionality due to a legislation violating a constitutional provision and adopted these principles to Indian Constitutional Law. In the former case, the statute would be void ab initio and a nullity and would have to re-enacted while in the latter, the statue would be eclipsed and would become operative without re-enactment once the impediment or constitutional prohibition is removed by amending the Constitution or amending the statute and once the prohibition is removed, it could be enforced 'proprio vigore'. The learned Judge then turned his attention to Article 13 (1) of the Constitution and after referring to the statement of law in Corpus Juris Secundum and the judgment delivered by S.R. Das J. Keshavan Madhavan Menon v. State of Bombay, observed that the word "void" in Article 13 (1) would mean "relatively void" and not "absolutely void". An absolutely void statute or provision cannot be enforced at all, but a relatively void statute or provision can be waived by an individual and therefore, according to the learned Judge, Section 13 (b) of the Prohibition Act, which was a pre-constitutional statute was relatively void and was merely unenforceable.
Eventually the learned Judge held that the burden of establishing that "what was consumed was a medical preparation" lay on the Appellant and hence confirmed the conviction of the Appellant under Section 66 (b) of the Prohibition Act by dismissing his Appeal.
Jagannadhadas J. concurs with Venkatarama Ayyar J. but with different reasons
Jagannadhadas J. also generally agreed that the decision in F.N. Balsara does not 'proprio vigore' amend the Prohibition Act and referred to the very same passage of Willoughby quoted by Bhagwati J. in his opinion. Willoughby had stated that the Court does not annul or repeal a statute if it is in conflict with the Constitution but simply refused to recognize it and the decision of the court affects the parties to the decision only with there being no judgment against the statute. However, according to the learned Judge, the aforementioned passage covered cases which fell within the scope of Article 13(2) but not Article 13(1) of the Constitution. The effect of the declaration in F.N. Balsara as per the learned Judge, results in two possible outcomes namely, "(1) the said severable part becomes 'unenforceable', while it remains part of the Act, or (2) the said part goes out of the Act and the Act stands 'appropriately amended pro tanto.' " The learned Judge proceeded on the footing that the declaration in F.N. Balsara brought about a "notional amendment" which had to be imported into the Act. The declaration, according to the learned Judge, engrafted an exception or proviso into Section 13 (b) by excluding medical or toilet preparations from the prohibition. This would be an exception under Section 105 of the Evidence Act. The learned Judge eventually held that the Bombay High Court was correct that burden of proof lay on the Appellant, upheld the conviction of the Appellant under Section 66(b) of the Prohibition Act and ultimately dismissed the Appeal.
Reference to the larger Bench of five Judges
As is often the case when Judges deliver separate opinions, the lack of unanimity and uniformity of the court's opinions may have resulted in utter confusion with several head scratching moments. According to the author, though this is not reflected in the reporter, it may have been the reason for the Court to grant review and reopen the case by referring it to the Constitution Bench on the following question of law,
"What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparation containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution ?"
Chief Justice Mahajan would have none of it
The majority opinion was delivered by Mahajan C.J. for himself and for B.K. Mukherjea, Vivian Bose and Ghulam Hasan JJ. with S.R. Das J. being the sole dissenter. According to Mahajan C.J., the declaration in F.N. Balsara that Section 13(b) is void so far as it affects consumption or use of liquid medicinal or toilet preparations containing alcohol is "to render part of Section 13(b)…. inoperative, ineffective and ineffectual and thus unenforceable." According to the learned Chief Justice (as he then was), the part of the section that has been declared void has "no legal force so far as citizens are concerned and it cannot be recognized as valid law for determining the rights of the citizens." "No notice can be taken of the part of the section struck down in a prosecution for contravention of the provisions of that section." According to Mahajan C.J., the High Court erred by placing onus on the accused when the onus had to be cast on the prosecution.
Mahajan C.J., rejected the introduction or import of terms like "relatively void" coined in American Constitutional jurisprudence into Indian Constitutional Law. The learned Judge also rejected the view of Venkatarama Ayyar J. that "a declaration of unconstitutionality brought about by lack of legislative power stands on a different footing from a declaration of unconstitutionality brought about by reasons of abridgment of fundamental rights" and further stated that it was not a correct proposition that the constitutional provisions in Part III of the Constitution merely operate "as a check on the exercise of legislative power." According to the learned Judge, there is no distinction between both declarations of unconstitutionality namely, on the ground of legislative competent or violation of fundamental rights because of these declarations "go to the root of the power itself." The learned Judge also stated that it was not open for an accused person to waive his constitutional rights and held that "the doctrine of waiver" enunciated by American Judges cannot be introduced into the Indian Constitution "without a fuller discussion of the matter." Though this stray observations gives the initial impression that the issue of application of the doctrine of waiver was left open by the Court, the subsequent sub paragraph of the majority judgment dispels that impression. According to Mahajan C.J.,
"These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Reference to some of the articles, inter alia, articles 15(1), 20, 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State "You can discriminate", or get convicted by waiving the protection given under articles 20 and 21." (emphasis supplied)
The learned Judge also expressly held that there was no scope to apply the American doctrine enunciated by Willoughby that the declaration of unconstitutionality which is in conflict with the Constitution affects the parties to the proceeding only and does not apply in rem. According to the learned Judge, once a statute is declared void under Article 13 (1) or (2), the declaration has the force of law and is no longer qua persons whose fundamental rights are infringed. In the United States, no provision like Article 13 exists and therefore the aforesaid doctrine has no application to Indian Constitutional Law. The learned Judge then went on to state,
"In this country once a law has been struck down as unconstitutional law by a Court, no notice can be taken of that law by any Court, and in every case an accused person need not start providing that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared as void, and therefore there is no onus resting on the accused person to prove that the law that has already been declared unconstitutional is unconstitutional in that particular case as well. The Court has to take notice only of what the law of the land is, and convict the accused only if he contravenes the law of the land."
Lastly, Mahajan C.J., expressly rejected the view of Jagannadhadas J. that the declaration in F.N. Balsara engrafted an exception or proviso to Section 13 (b) of the Prohibition Act and that the onus of proving the exception was on the accused in accordance with Section 105 of the Evidence Act. According to the learned Judge, there is no power for the State at all to engraft an exception of proviso inconsistent with Part III of the Constitution.
Das J. dissents
Das J. disagreed with the aforesaid majority view. The learned Judge was unable to accept the wide proposition laid down in the dictum of Field J. in Norton v. Shelby County quoted earlier, what stated that when a statute is adjudged unconstitutional it is as if it had never been. According to the learned judge, the dictum of Filed J. concerned a post Constitutional Statute and not a pre-Constitutional Statute and it could not be said that the declaration of unconstitutionality makes a statute void for all purposes including past transactions that took place prior to the Constitution. The declaration in F.N. Balsara "does not affect anything done under the Act prior to the commencement of the Constitution." The learned Judge then went onto state that the result of the declaration was that "the prohibition of that part of Section 13(b) will be ineffective against and inapplicable to a citizen who consumes or uses liquid medicinal or toilet preparations containing alcohol. No part of the section is obliterated or scratched out from the statute book or in any way altered or amended for that is not the function of the court. This seems to be in conformity with the view of Mahajan C.J. However, the divergence of opinion can be found in the subsequent portion of the opinion. According to Das J., the judicial declaration in F.N. Balsara "serves to provide a defence to a citizen who has consumed or used liquid medicinal or toilet preparations." The onus was on the accused to prove that he had consumed liquid medicinal or toilet preparations containing alcohol, which prohibition of consumption was declared void by F.N. Balsara. If he establishes that he has consumed such liquid then the declaration in F.N. Balsara will apply namely, the prohibition in Section 13 (b) is not applicable to him as it is inconsistent with his fundamental right. According to Das J. the declaration in F.N. Balsara serves as a defence to the accused and "a person who challenges the validity of the section on the ground of its unconstitutionality has the advantage of the declaration as a matter of law but the facts on which that declaration is based have nevertheless to be established in each particular case where the declaration is sought to be availed of."
Eventually, Das J. held that the declaration does not operate as an amendment of Section 13(b) and no excepted or proviso could be grafted. However, Das J. made it explicitly clear that he expressed no opinion on the observations made by the other learned Judges on the doctrine of waiver, the check of fundamental rights on the legislative power and most importantly on the effect of the declaration under Article 13 (1) being "relatively void."
Therefore, the law laid down by Mahajan C.J. for the majority became the law of the land. The Court very rightly rejected the application of the complicated American doctrines of waiver, and absolute and relative voidness and provided a simple and straightforward edifice which has stood the test of time.
Views are personal.
(The author is a practicing Advocate at the Bombay High Court. He can be contacted on Twitter @DormaanD)
 AIR 1955 SC 123
 The facts have been paraphrased from Para 2 to 4 of the reporter at page 128 and 129.
 Ibid p. 128 para 2
 338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
 Section 66 (b) prior to its amendment read as under:
Whoever in contravention of the provisions of this Act
(b) consumes, uses, possesses or transports any intoxicant or hemp
shall on conviction be punished."
 A tonic containing B Complex and Phosphates
 Three separate opinions were delivered by N.H. Bhagwati, B. Jagannadhadas and T.L. Venkatarama Ayyar JJ.
 AIR 1951 SC 318
 Supra note 1 p. 129 para 6
 Ibid p. 130 para 9
 Ibid p. 129 para 6
 Ibid para 7
 Also see Deepchand v. State of Uttar Pradesh  S.C.J. 1069
 S. Venkataraman, "The Status of An Unconstitutional Statute" 2 Journal of India Law Institute 401, 410 (1960)http://184.108.40.206:8080/jspui/bitstream/123456789/14915/1/028_The Status of an Unconstitutional Statute (401-422).pdf (Last visited on Monday 07-12-2020 at 6:54 PM)
 Ibid p. 410, 411
 See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) https://tile.loc.gov/storage-services/service/ll/usrep/usrep005/usrep005137/usrep005137.pdf (last visited 07-12-2020 7:00 PM)
 Supra note 1 p. 130 para 10(a)
 (1885) 118 US 425 (C). Also see Chicago, Indianapolis & Louisville Ry. V. Hackett, (1912) 227 U.S.559, S Ct., 57 L. Ed. 966
 Supra note 1 p. 130 para 10(a) Rottschaefer on Constitutional Law, at pg. 34, ""The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional result. That theory implies that the legislative provision never had legal force as applied to cases within that class."
 Ibid p. 130, 131 para 10(a)
Willoughby on Constitution of the United States, Second Edition, Vol. I, page 10 :-
"The Court does not annual or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognise it, and determines the rights of the parties just as such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does repeal..... the statute. The parties to that suit are concluded by the judgment, but no one else is bound. A new litigant may bring a new suit, based on the very same statute, and the former decision can be relied on only as a precedent,........."
"It simply refuses to recognise it and determines the rights of the parties just as if such state had no application..........."
Willis on Constitutional Law, at page 89 :-
"A judicial declaration of the unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so fact as the determination of the rights of private parties is concerned. The courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed.......".
 Supra note 1 p. 131 para 11, 12.
 105. Burden of proving that case of accused comes within exceptions. –– When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
 Supra note 1 p. 131, 132 paras 12 to 15
 Ibid p. 134 para 18, 20
 Ibid. The judgment is reported from pages 137 to 142 paras 27 to 37
 Ibid p. 138 para 29
 Ibid para 30
 Ibid p. 139 para 31
 Ibid. Reference was made to Cooley on Constitutional Limitations, Willis on Constitutional Law, Rottschaefer on Constitutional Law.
 Ibid. The judgments referred to were Shepard v. Barron, (1903) 194 US 553 (J), Pierce v. Somerset Railway Co. (1989) 171 US 641 (K), Pierce Oil Corporation v. Phoenix Refining Co. (1921) 259 US 125 (L), Wilkerson v. Rahrer, (1890) 140 US 545 (M)
 Ibid pp. 139, 140, 141 para 32, 33 and 34.
 Supra note 14 p. 410. Proprio Vigore means by its own force or vigour. Also see "What Is the Effect of a Court's Declaring a Legislative Act Unconstitutional?" Harvard Law Review 39, no. 3 (1926): 373-78. Accessed December 8, 2020. doi:10.2307/1329312; Field, Oliver P. (1926) "Effect of an Unconstitutional Statute," Indiana Law Journal: Vol. 1 : Iss. 1 ,Article 1. Available at: https://www.repository.law.indiana.edu/ilj/vol1/iss1/1 (Last visited on 08-12-2020 at 9:00 am; Crawford, Earl T. "The Legislative Status of an Unconstitutional Statute." Michigan Law Review 49, no. 5 (1951): 645-66. Accessed December 8, 2020. doi:10.2307/1284649.
 Article 13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
 AIR 1951 SC 128
 Supra note 1 pp. 140, 141 para 33, 34
 Ibid p 141 para 34
 Ibid p. 141, 142 para 34 and 37
 Ibid p. 134 para 21 (a). Bhagwati J. quotes the same paragraph in his opinion at p. 130 para 10(a).
 Ibid p. 134 para 21(a). Also see Supra note 20 for the quoted text of Willoughby
 (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
 Supra note 1 p. 135 para 21
 Pro tanto means to that extent
 Supra note 1 p. 135 para 21
 Ibid para 22
 Ibid pp. 135, 136 para 22 to 24
 Ibid p. 136 para 25
 Ibid para 25 and 27(a)
 Ibid p. 142 para 39
 Delivered on 23rd September 1954
 Supra note 1 p. 144 para 49
 Ibid p. 145 para 50
 Ibid para 51.
 Ibid p. 146 para 52
 Ibid para 53
 Ibid pp. 146, 147 para 53
 Ibid para 54
 Supra note. 18
 Supra note 1 p. 151 para 65
 Ibid p. 152 para 65
 Ibid p. 153 para 67