Abstract

The Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) was passed on 6 April 1979 validating all Martial Law Proclamations, Orders, Rules and Regulations issued between August 15, 1975 to April 9, 1979. After 21 years, the Constitutionality of the Fifth Amendment was challenged. The High Court Division declared Fifth Amendment Act ultra vires the Constitution and condoned some necessary provisions. The Appellate Division by its Judgment and Order dated 01.02.2010 upheld the judgment of the High Court Division with modification and concluded that Martial Law is not law at all and bid a farewell to all extra-constitutional adventures. There is no concept of martial law in our constitutional scheme. Even, the doctrine of necessity also does not allow the same. The supremacy of the Constitution is one of the basic features, which cannot be compromised by way of proclaiming martial law, rules, regulations and by-laws. Although, a number of writ petitions were filed in relation to Moon Cinema Hall, it did not attract the principle of res judicata, because in earlier writ petitions the Constitutionality of the Fifth Amendment was not challenged. Upon filing a review petition, our Apex Court based on doctrine of condonation provisionally condoned until 31^st December 2012 to avoid disastrous consequences for enabling the Parliament to make necessary amendment to the Constitution and also for enacting laws promulgated during the said period.