Isha Khurana, BBA LLB (Honours), Jindal Global Law School
Introduction
The case of Keshavan Madhava Menon v. State of Bombay1 gives us an insight into how fundamental rights, which weren’t in existence before the commencement of the constitution, would interact with pre-constitution laws post said commencement. Here, the appellant was charged with an offence under the Indian Press (Emergency Powers) Act,2 for a publication dated September 1949. The Constitution of India as we know it, wasn’t in existence then. This implies that the fundamental rights granted by part III were non-existent and it was thus put forth by the court that they couldn’t be applied to past events. The judgement goes through the course of analysing whether there is a retrospective nature of the Constitution, more specifically, the fundamental rights. This essay thus seeks to map through and gain a deeper understanding of the rationale provided by the judges in the instant case. The essential aspects of how the judges established the lack of the retrospective effect of the Constitution, and how an individual can’t aim to exercise a right they don’t have at a particular time are addressed. The discourse then dives into the interpretation of multiple key phrases such as the spirit of the constitution, the arguments revolving around the prospective nature of Article 13 (1), and more particularly the letter of the Constitution. Lastly, future developments and precedents that were established due to the Keshavan case are addressed, which highlights the importance this case holds in law as we see it today.
