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Principles Relating to Interpretation of The Constitution

The following are some of the key principles applied specially in interpreting the provisions of the constitution:

  1. Doctrine of pith and substance
  2. Doctrine of Colourable legislation
  3. Principle of Ancillary powers
  4. Principle of Occupied field
  5. Doctrine of repugnancy
  6. Principle of Territorial Nexus
  7. Doctrine of prospective overruling

Doctrine of Pith and Substance

Pith means “true nature” or “essence” and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. The doctrine states that within their respective spheres the state and the union legislatures are made supreme, they should not encroach upon the sphere demarcated for the other. Though this doctrine is equally applicable to both the State Legislature and Parliament it is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution.

The basic idea behind this principle is that an act or a provision created by the Legislature is valid if the true nature of the act or the provision is about a subject that falls in a list in which the Legislature has power to legislate.

The case of State of Maharashtra vs F N Balsara, illustrates this principle very nicely. In this case, the State of Maharashtra passed Bombay Prohibition Act that prohibited the sale and storage of liquor. This affected the business of the appellant who used to import liquor. He challenged the act on the ground that import and export are the subjects that belong in Union list and state is incapable of making any laws regarding it. Supreme Court rejected this argument and held that the true nature of the act is prohibition of alcohol in the state and this subject belongs to the State list. The court looks at the true character and nature of the act having regard to the purpose, scope, objective, and the effects of its provisions. Therefore, the fact that the act superficially touches on import of alcohol does not make it invalid.

Thus, as held in State of W Bengal vs Kesoram Industries, 2004, the courts have to ignore the name given to the act by the legislature and must also disregard the incidental and superficial encroachments of the act and has to see where the impact of the legislation falls. It must then decide the constitutionality of the act.

Principle of Incidental or Ancillary Powers

This principle is an addition to the doctrine of Pith and Substance. What it means is that the power to legislate on a subject also includes power to legislate on ancillary matters that are reasonably connected to that subject. It is not always sufficient to determine the constitutionality of an act by just looking at the pith and substance of the act. In such cases, it has to be seen whether the matter referred in the act is essential to give affect to the main subject of the act.

For example, power to impose tax would include the power to search and seizure to prevent the evasion of that tax. Similarly, the power to legislate on Land reforms includes the power to legislate on mortgage of the land.

However, power relating to banking cannot be extended to include power relating to non-banking entities. However, if a subject is explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter. For example, power to tax is mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of the lists.

As held in the case of State of Rajasthan vs G Chawla1) the power to legislate on a topic includes the power to legislate on an ancillary matter which can be said to be reasonably included in the topic.

The underlying idea behind this principle is that the grant of power includes everything necessary to exercise that power.

However, this does not mean that the scope of the power can be extended to any unreasonable extent. Supreme Court has consistently cautioned against such extended construction. For example, in R M D Charbaugwala v State of Mysore, SC held that betting and gambling is a state subject as mentioned in Entry 34 of State list but it does not include power to impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation

This doctrine is based on the principle that what cannot be done directly cannot be done indirectly. In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a round about manner is also unconstitutional. This doctrine is found on the wider doctrine of “fraud on the constitution”. A thing is Colourable when it seems to be one thing in the appearance but another thing underneath.

K C Gajapati Narayan Deo vs State of Orissa, is a famous case that illustrates the applicability of this doctrine. In this case, SC observed that the constitution has clearly distributed the legislative powers to various bodies, which have to act within their respective spheres. These limitations are marked by specific legislatives entries or in some cases these limitations are imposed in the form of fundamental rights of the constitution. Question may arise whether while enacting any provision such limits have been transgressed or not. Such transgression may be patent, manifest or direct. But it may also be covert, disguised, or indirect. It is to this later class of transgression that the doctrine of colourable legislation applies. In such case, although the legislation purports to act within the limits of its powers, yet in substance and in reality, it transgresses those powers. The transgression is veiled by mere pretense or disguise. But the legislature cannot be allowed to violate the constitutional prohibition by an indirect method.

In this case, the validity of Orissa Agricultural Income Tax (Amendment) Act 1950 was in question. The argument was that it was not a bona fide taxation law but a colourable legislation whose main motive was to artificially lower the income of the intermediaries so that the state has to pay less compensation to them under Orissa Estates Abolition Act, 1952. Supreme Court held that it was not colourable legislation because the state was well within its power to set the taxes, no matter how unjust it was. The state is also empowered to adopt any method of compensation. The motive of the legislature in enacting a law is totally irrelevant.

A contrasting case is of K T Moopil Nair v State of Kerala2). In this case, the state imposed a tax under Travencore Cochin Land Tax Act, 1955, which was so high that it was many times the annual income that the person was earning from the land. The SC held the act as violative of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a person's property was being confiscated.

Similarly, in Balaji v State of Mysore, SC held that the order reserving 68% of the seats for students belonging to backward classes was violative of Article 14 in disguise of making a provision under Article 15(4).

Doctrine of Eclipse

In the case of Keshavan Madhava Menon v. The State of Bombay, the law in question was an existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19(1)(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 extent of such inconsistency”.

The court said 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”, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens.

This reasoning was also adopted in the case of Bhikaji Narain Dhakras And Others v. The State Of Madhya Pradesh And Another. This case also held that “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 fundamental 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 the statute, book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right”.

The court also said that article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with fundamental right 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.

Finally the court said something that we today know of as the crux of Doctrine of Eclipse. “The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right.”

We see that such laws are not dead for all purposes. They exist for the purposes of pre-Constitution rights and liabilities and they remain operative, even after the commencement of the Constitution, as against non-citizens. It is only as against the citizens that they remain in a dormant or moribund condition. Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initio but become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.

Doctrine of Occupied Field

The doctrine of Pith and Substance according to which where the question arises of determining whether a particular law relates to a particular subject (mentioned in one list of another), the court looks into the substance of the matter. There is a very thin of line of difference between doctrine of Repugnancy and Doctrine of Occupied Field. As we know that repugnance arises only if there is an actual conflict between two legislations, one enacted by the State Legislature and the other by Parliament, both of which were competent to do so. On the other hand, doctrine of Occupied Field simply refers to those legislative entries of State List, which are expressly made ‘subject’ to a corresponding Entry in either the Union List or the Concurrent List.

Doctrine of Occupied Field has nothing to do with the conflict of laws between the state and the centre. It is merely concerned with the ‘existence of legislative power’ whereas repugnance is concerned with the ‘exercise of legislative power’ that is shown to exist.

Doctrine of Occupied Field comes into picture even before the Union Law or the State Law has commenced. Under Article 254, as soon as a Union law receives assent of the President, it is said to be ‘a law made by the Parliament’. Actual commencement of the law is not important for the purpose of attracting doctrine of Occupied Field.

Doctrine of Territorial Nexus

Territorial Nexus and the Parliament

  1. Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation’. Thus a legislation cannot be questioned on the ground that it has extra-territorial operation.
  2. It is well-established that the Courts of our country must enforce the law with the machinery available to them; and they are not entitled to question the authority of the Legislature in making a law which is extra-territorial.
  3. Extra-territorial operation does not invalidate a law. But some nexus with India may still be necessary in some of the cases such as those involving taxation statutes.

Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of the State. Now, this leaves it open to scrutiny whether a particular law is really within the competence of the State Legislature enacting it. There are plethora of cases that have stated that the laws which a state is empowered to make must be for the purpose of that State.

Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There are two conditions that have been laid down in this respect:

  1. The Connection (nexus) must be real and not illusory.
  2. The liability sought to be imposed must be pertinent to that connection.

If the above two conditions are satisfied, any further examination of the sufficiency of Nexus cannot be a matter of consideration before the courts.

In various cases relating to taxation statutes, the courts have time and again stated that it is not necessary that the sale or purchase should take place within the Territorial Limits of the State. Broadly speaking local activities of buying or selling carried in the State in relation to local goods would be sufficient basis to sustain the taxing power of the State, provided of course, such activities ultimately result in concluded sale or purchase to be taxed.

There is also a Presumption of Constitutionality that the Legislature is presumed not to have exceeded its constitutional powers and a construction consistent with those powers is to be put upon the laws enacted by the Legislature.

Extra-Territorial Operation

It is well-established that the Parliament is empowered to make laws with respect to aspects or causes that occur, arise or exist, or maybe expected to do so, within the territory of India and also with respect to extra-territorial aspects or causes that have an impact or nexus with India.

Such laws would fall within the meaning, purport and ambit of grant of powers of Parliament to make laws ‘for the whole or any part of the territory of India’ and they may not be invalidated on the ground that they require extra territorial operation. Any laws enacted by the Parliament with respect to extra territorial aspects or causes that have no nexus with India would beultra vires and would be laws made for a foreign territory.”

This clearly indicates that as long as the law enacted by the Parliament has a nexus with India, even if such laws require extra territorial operation, the laws so enacted cannot be said to constitutionally invalid. It is only when the‘laws enacted by the Parliament with respect to extra territorial aspects or causes that have no nexus with India’ that such laws ‘would be ultra vires.

Prospective Overruling

It is commonly acknowledged that when a judicial pronouncement is made, it not only applies to any particular case but the ratio would apply to the future cases also. This is also the essence of the concept of precedent. In other words, the law declared by the court is not descriptive as the court holds it but also prescriptive in the sense the future judges have to use it. This, is other words, places precedent on a higher pedestal- a major source of law.

Precedent, as a source of law, is both declaratory and constitutive of law. And traditionally, the rule of retrospectively is the norm. This means that when a law is declared invalid, then it is deemed to be invalid from the date law had come into existence or the date on which it was enacted. Thus, the rule of retrospective operation of a decision or pronouncement of a court, which is also one of the indispensable features of a precedent, confirms to the declaratory character of a precedent.

This, in essence, is what is meant by Balckstonian principle wherein he says that judges do not make law, but only declare the law. Thus, we see that the declaratory theory supports retroactive operation of a precedent.

Now, the concept of Prospective Overruling, as the title of the project reflects, is a deviation from the principle of retroactive operation of a decision and thus, a deviation from the traditional Blackstonian principle too.

This principle, borrowed from the American Constitution, found its application first in the famous case of Golaknath v. State of Punjab. To illustrate, in very simple words, the implication of the invocation of the doctrine is that the decision of such a case would not have retrospective operation but would operate only in the future, i.e., have only prospective operation. This project now seeks to embark on a detailed analysis of the application and implications, both positive and negative, of the doctrine in the light of its invocation in the above mentioned case.

Application of The Doctrine of Prospective Overruling in India

The Doctrine of Prospective Overruling, as noted above, is a deviation for the traditional Blackstonian view of law, viz., the duty of the Court was “not to pronounce a new rule but to maintain and expound the old one”. This doctrine offers foundations for an extended view of judicial function, which primarily centers on discretion and freedom of choice, to specify the time frame and the cases to which a particular pronouncement in a case will be applicable to.

In the case of Naryanan Nair v. State of Kerela, Mathew J. explains the thrust of the doctrine by observing that it was not meant to supplant the traditional Blackstonian doctrine but was essentially meant to protect the interests of the litigants when judicial overruling of a precedent entailed a change in the law. In effect, what is contemplated through the doctrine is to lay down the scope of the pronouncement in a particular case with regard to its applicability to future cases and disputes. And the primary interest behind the courts actually applying this doctrine is the fact, as already mentioned, that courts always want to do justice and may apply various criteria to reach their ends.

In this effort of theirs, there are instances when courts have themselves have invoked and laid down effective principles which will guide them in their endeavour and the above doctrine bears testimony to this point. The essence of prospective overruling is that the Supreme Court lays down the parameters within which a law laid down in a case which overrules a previous judgment has to operate. The whole purpose is to avoid reopening of settled issues and also prevent multiplicity of proceedings; in effect, this means that all actions prior to the declaration do not stand invalidated.

Also, as laid down in the case of Baburam v. C.C. Jacob , all the subordinate courts are bound to apply the law to future cases only. There may also be instances where the Supreme Court may specify the date when the declaration shall come into effect thereby not disturbing the decisions taken before such a date. All this happens during the process of invalidating a law or overruling a decision.

AIR 1959
AIR 1961