INTERPRETATION OF STATUE
ASSIGNMENT SUBMITTED IN PARTIAL FULFILLMENT
FOR THE DEGREE OF T.Y L.L.B
(THROUGH UNIVERSITY OF MUMBAI)
SUBMITTED BY
HARSH RATHORE
(ROLL NO. 2324334)
SUBJECT TEACHER:
PROF. DEEPAK PAWAR
LALA LAJPATRAI COLLEGE OF LAW
MUMBAI
10TH NOVEMBER 2023
Table of Contents
Introduction........................................................................................................................................3
Doctrine of Territorial Nexus............................................................................................................3
State of Bombay v. RMDC, 1957...................................................................................................4
State of Bombay v. Narayandas Mangilal, 1957..........................................................................5
Doctrine of Harmonious Construction.............................................................................................5
Shankari Prasad v. Union of India, 1951......................................................................................6
Ram Krishan v. Vinod, 1951...........................................................................................................7
Bengal Immunity Co. v. State of Bihar, 1955...............................................................................7
Doctrine of Pith and Substance.........................................................................................................7
Evolution............................................................................................................................................7
Pith and substance.............................................................................................................................8
Under Indian Constitution.................................................................................................................9
Premchand Jain v. R.K. Chhabra, 1984.....................................................................................10
State of Bombay v. Narottamdas, 1950......................................................................................10
Krishna v. State of Madras, 1956................................................................................................10
Doctrine of Repugnancy...................................................................................................................11
Article 254(1).................................................................................................................................11
Article 254(2)................................................................................................................................11
Srinivasa Raghavachar v. State of Karnataka, 1987..................................................................13
Sukumar Mukherjee v. State of West Bengal, 1993..................................................................13
Kumar Sharma v. State of Karnataka, 1990...............................................................................14
Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of
Tamil Nadu, 1996..........................................................................................................................14
Doctrine of Colourable Legislation.................................................................................................14
State of Bihar v. Kameshwar Singh, 1952..................................................................................16
Naga People’s Movement for Human Rights v. Union of India, 1997....................................17
Conclusion.........................................................................................................................................18
Introduction
The Seventh Schedule of the Indian Constitution contains three subject
lists- Union list for the centre, State list for the states and the Concurrent
list for both, the centre as well as the states. The lists lay down the
subjects each legislature is competent to legislate on. This well-defined
scheme for division of powers is to ensure that no legislature trespasses
while exercising its powers and the sanctity of the Constitutional scheme
for the division of powers is preserved.
However, the actual working of our Constitution is a bit messier. The
water-tight division of powers laid down in the lists is bound to create
conflicts since laws tend to deal with more than one subject. When such
conflicts arise, the courts take aid from various doctrines to help resolve
these conflicts. This article explains the doctrines used, what they
stipulate and the nuances of each of these.
Doctrine of Territorial Nexus
Under article 245 of the Indian constitution, it has been stated that:
1. Parliament has jurisdiction to make laws for extraterritorial
operations or laws for the whole or any part of the country.
2. The state legislature has the jurisdiction to make laws for the whole
or any part of the state.
Thus, it can be said that both the union and the state have their own
territorial jurisdiction to make laws.
Under article 246 it has been stated,
1. Parliament has the explicit power to make laws for the subject
matters enumerated in the union list (list I of the 7th schedule)
2. The state has the power to make laws for the subject matter
enumerated in the state list(list II of the 7th schedule)
3. Both the state and the union have the power to make laws for the
subject matter enumerated in the concurrent list(list III of the 7th
schedule)
Under article 245(2) of the Indian constitution, if any law is made by the
parliament regarding the extraterritorial operations, no questions can be
raised on its validity. Thus the validity of a legislation can’t be
questioned. In this case, a court is bound to enforce the laws made with
regards to extra-territorial operations. This legislation can’t be
invalidated.
Under the Indian conception of federalism, a state law that has operation
outside the given state is invalid. The doctrine of territorial nexus is
invoked to find out if the law in question has an operation beyond its
jurisdiction. This doctrine stipulates that:
Territory: The object to which a particular law applies does not have to
be located within the strict territory of the state. Instead, it needs to have
a sufficient territorial connection to the enacting state.
Subject: There needs to be a territorial nexus between the state enacting
the law and the law’s subject matter. The connection must be real and
not illusory, as laid down in Shrikant Bhalchandra Karulkar v. State Of
Gujarat, 1994. Moreover, the liability imposed must be pertinent and
relevant to the connection.
State of Bombay v. RMDC, 1957
In the given case, a lottery was conducted via a newspaper. This
newspaper had wide circulation within the State of Bombay, but quite a
bit outside the state too. The Bombay Government levied a lump sum tax
on lotteries. The tax extended to the circulation and distribution of
newspapers that were published outside the state. This tax was
challenged in court. The Apex Court reasoned that even though
newspapers were published and had wide circulation outside the state,
collectors of the entry fees for the competition were within Bombay.
Thus, there was sufficient territorial nexus and the tax was held to be
valid.
State of Bombay v. Narayandas Mangilal, 1957
In the mid-1950s, the Bombay legislature criminalized bigamous
marriages, including marriages entered into outside the state if one party
was domiciled in Bombay. In the State of Bombay v. Narayandas
Mangilal, (1957), the Supreme court struck down this law due to lack of
sufficient territorial nexus concerning marriages performed outside the
state, even if one person lived in the state.
Doctrine of Harmonious Construction
The term harmonious construction refers to such construction by which
harmony or oneness amongst various provisions of an enactment is
arrived at. When the words of statutory provision bear more than one
meaning and there is a doubt as to which meaning should prevail, then
such meaning should be adopted by which the words best harmonize
with the subject and the subject of the enactment.
It is presumed that the legislature has enacted a law with a definite
purpose. It is also presumed that legislature have used precise words to
open their mind and have left no ambiguity in the language of the
enactment. It is further presumed that all the provisions of a statute are
well composed and consistent with each other because the legislature is
not supposed to contradict itself by providing conflicting provision.
Hence, the statute should be construed in such a manner so as to avoid
any repugnancy.
An inconsistency should neither be created nor be readily inferred.
Where all alternatives’ constructions are possible, that construction
should be accepted by which consistency is achieved and the
constructions leading to inconsistency should be rejected.
The intention of legislature is that every provision should remain
operative. But where two provisions are contradictory, it may not
possible to effectuate both of them and in result, one shall be reduced to
futility as against the settled basic principle of ut res magis valeat
qauam pereat.
Therefore, such a construction should be allowed to prevail by which
existing inconsistency is removed and both the provisions remain in
force, in harmony with each other.
It brings harmony among the various lists referred to in Indian
constitution schedule 7.
It is a cardinal rule of construction that when there are two provisions of
the same law are conflict with each other that both of them cannot stand
together they should possibly being so interpreted that effect can be
given to both and that a constructions which renders any of them
inoperative and useless should not be adopted except in the last resort.
The doctrine of harmonious construction applies to cases where
provisions of the same statute seem to contradict. The doctrine is based
on the presumption that-
The legislature did not intend to give one provision importance and
consequently neglect another; or
To cause or maintain any contradiction between the two.
This doctrine was profusely explained in the case of Sultana Begum v.
Premchand Jain, (1996). The Hon’ble Supreme Court said that these
conflicting provisions should be understood in a way to ensure that
neither is ignored. In Jagdish Singh v. Lt. Governor, Delhi, (1997), it was
held that this doctrine requires reading the statute as a whole construing
it in a way in which neither is ineffective.
Shankari Prasad v. Union of India, 1951
Shankari Prasad v. Union of India, (1951) addressed the objective of this
doctrine. It said that in the case of two articles that are widely phrased
and conflict in their operation, the doctrine of harmonious construction
requires them to be controlled and qualified by the other.
Ram Krishan v. Vinod, 1951
In the given case, there was a contradiction between the Representation
of the People Act, 1951. Section 33 empowered government servants to
nominate candidates seeking election. However, Section 123 prescribed
that no government servant can assist any candidate to an election
except by way of casting votes.
The Supreme Court harmoniously construed both the provisions. It
allowed government servants to nominate as well as vote for candidates.
However, no other forms of assistance could be provided.
Bengal Immunity Co. v. State of Bihar, 1955
The given case conceded the limits of this doctrine. It held that in cases
of conflict between provisions, they should be construed in a way in
which both are effective and in harmony. However, in case this harmony
is not possible, the useless provision can be ignored if there is no
compulsion of its adoption.
Doctrine of Pith and Substance
Evolution
The Canadian Constitution inspired the doctrine of pith and substance.
The country of Canada is divided into two parts, namely, the Dominion
and the Provinces. In order to divide the powers of the Dominions and
Provinces, the framers of the Canadian Constitution inserted two
separate lists to the Constitution. Section 69 of the Canadian
Constitution, which was first established in 1857 as the British North
America Act, separated the powers delegated to the Dominion from
those delegated to the Provinces. Furthermore, Sections 91 and 92 of the
Constitution Act of 1867 define the Dominions’ and Provinces’ exclusive
rights.
The origin of this doctrine can be traced back to the case of Cushing vs.
Dupuy (1880) in Canada, and it has since spread to India, where it is
firmly supported by Article 246 of the Indian Constitution and the
Seventh Schedule, through which the Constitution of India divides the
scope of legislative powers between the Centre and states. The Union,
State, and Concurrent Lists of the Indian Constitution make up this
schedule.
While the term ‘Pith’ implies genuine nature or essence of anything,
‘Substance’ indicates the most important or vital aspect of something, to
break down the concept to its molecular meanings. The state and union
legislatures are made supreme within their respective areas, and they
should not intrude on the sphere delimited for the other, according to
the doctrine’s interpretation.
When a law approved by one legislature is contested or trespassed by
another legislature, the doctrine of pith and substance is applied. This
doctrine states that while assessing whether a certain law applies to a
specific issue, the court looks to the content of the case. If the content of
the thing falls inside one of the three lists, the encroachment by law on
another list does not render it illegal since it is said to be ultra vires.
Pith and substance
Perhaps the most widely applied doctrine, ‘pith and substance’ means
the ‘true nature and character’. It is used to determine what the true
nature of an enactment is and which list or legislative domain it falls
under. To determine this, the court needs to look at:
The enactment as a whole;
Its main objects; and
The effect and scope of its provisions.
If a legislature encroaches on the field of another legislature, the court
looks at whether this encroachment is in fact, in substance or merely
incidental to the statute. The primary essence and object are
differentiated from its ultimate or incidental results.
In determining the true nature, the name given to the statute is
immaterial. Even if the purpose laid down in its Statement of Object and
Reasons is wrong, it would not per se render the statute invalid. Instead,
the statute needs to be viewed as an organic whole.
This doctrine allows some flexibility to the rigid scheme of distribution of
powers in the Indian Constitution. The rationale provided is that if every
slight or incidental encroachment is struck down, the legislature’s power
would be severely curtailed. and it would not be able to carry out its
duties.
Under Indian Constitution
The doctrine of pith and substance, sometimes known as incidental
encroachment, is a product of Canadian jurisprudence that has been
applied to the Government of India Act, 1935, and the current
Constitution. Occasionally, legislation is enacted under the authority of
an item in one of the VII Schedule’s Lists. The idea of pith and substance
is employed in such instances to determine which legislature has the
authority to implement such legislation. The court must consider the
genuine nature and character of the law, whether it essentially comes
within the authority of the legislature passing it, and whether it is valid
even though incidentally it touches upon some matter within the
competence of another legislature.
In general, the Parliament and state legislatures are supposed to stay in
their allocated sectors and not trespass on each other’s jurisdiction. If
otherwise, the legislation would be declared illegal by the judiciary. But
first, it will apply the doctrine of pith and substance to determine the
true authority that the aforementioned piece of law comes under. To put
it another way, the idea of pith and substance is used to identify which
category a piece of legislation belongs to. However, the powers bestowed
on each level are certain to intersect at some point. It is impossible to
draw a clear line between the competencies of separate legislatures as
they will inevitably overlap at times.
Premchand Jain v. R.K. Chhabra, 1984
In case the encroachment is merely incidental, the act would not, as a
rule, be invalid. This was reiterated in Premchand Jain v. R.K. Chhabra,
(1984). The Apex Court held that if an enactment substantially falls
within the powers conferred by the Constitution upon the enacting
legislature, it cannot be held to be invalid merely because it incidentally
encroaches on matters assigned to another legislature.
State of Bombay v. Narottamdas, 1950
In the given case, it was held that to save the incidental encroachment, it
needs to be proven that the pith and substance of the law fall within its
enacting legislature. In other words, the validity of the statute is not
determined by the degree of encroachment (though it is a relevant
consideration) but by the true nature of the enactment. If the pith and
substance fall under the enacting legislature’s domain, the law is upheld.
Krishna v. State of Madras, 1956
In 1937, the Madras Prohibition Act was passed. Over a decade later, this
act was challenged for laying down procedures and principles of
evidence for the trial of the accused. The appellants claimed
contradiction between the procedure and principles in the madras act as
opposed to the central Criminal Procedure Code, 1973. However, the
court upheld the law on the grounds that the given law was simply
ancillary to the central one. This law, in pith and substance, was related
to intoxicating liquors, a matter under the state list.
The given case embodies a censure of this doctrine. Critics claim it gives
the judiciary too much discretion. Courts are empowered to affix their
interpretation of the character of law and determine its validity.
Doctrine of Repugnancy
Article 254(1)
Article 254(1) stipulates that if a state law is repugnant, i.e., incompatible
with a law that:
the Parliament is competent to enact, or
an existing law under the concurrent list.
Then, the central or existing law prevails over one made by the state. The
state law is void to the extent of such repugnancy. Which law was
enacted earlier is not considered.
In the case of repugnancy, the repugnant provisions of the state law do
not become ultra vires. They simply eclipse. If the central law is repealed,
they become operative again.
The doctrine of Pith and Substance is utilized to determine if the true
nature falls to a matter under the concurrent list. In case the repugnancy
is to central law, it is considered if the parliament intended to lay down
an exhaustive code on the matter. If not, any qualification or restriction
can not be considered repugnant to the state law.
Article 254(2)
However, Article 254(2) can save a state law under the concurrent list if
there arises any repugnancy to a central law on the same matter.
Presidential assent to the state act would allow it to override any
provisions of the central act. However, the inconsistent provisions must
be applied to the state only. Moreover, the laws must be on the same
matter, not two different fields. If there is no central law on the matter
under the concurrent list, the state law would stand.
While obtaining presidential assent, it needs to be specified that assent is
sought for repugnancy to a particular act. Failure would make the state
law invalid. However, the Parliament can not repeal any state law in the
Concurrent list if it is not repugnant to the central law on the same
matter.
The Supreme court placed yet another limit on the state act. In Pt.
Rishikesh v. Salma Begum (1995), it held that if a state act has received
the assent of the President and subsequently, the centre enacts another
law conflicting with the state act, the central law would prevail.
Article 245 empowers the Parliament to make laws for the whole or any
part of India and the State legislature to make laws for the whole or any
part of the State. It also states that a law made by the Parliament shall
not be deemed invalid due to its extraterritorial application. Further,
Article 246 provides the subject-matter of laws that can be made by the
Parliament and Legislature of the States.
The Parliament has exclusive powers to make laws for all matters given
in the Union List or List I of the Schedule VII of the Indian Constitution.
The Legislature of the State has powers to make laws for such State for
all matters given in the State List or List II of Schedule VII.
Both the Parliament and the State Legislature have powers to make laws
for all matters listed in the Concurrent List or List III of the Seventh
Schedule.
The Parliament is empowered to make laws relating to any matter for
any part of the territory of India, not included in a State,
notwithstanding if it is enumerated in the State List.
Repugnancy means a contradiction between two laws which when
applied to the same set of facts produce different results. It is used to
describe inconsistency and incompatibility between the Central laws and
State laws when applied in the concurrent field. The situation of
repugnancy arises when two laws are so inconsistent with each other
that the application of any one of them would imply the violation of
another.
The doctrine of repugnancy, in accordance to Article 254, states that if
any part of State law is repugnant or conflicting to any part of a Central
law which the Parliament is competent to enact, or to any part of a law of
the matter of List III, then the Central law made by the Parliament shall
prevail and the law made by the State legislature shall become void, to
the extent of its repugnancy. While considering this doctrine, whether
the central law is passed before or after the State law is immaterial.
Hence, this is a principle to ascertain that when a state law becomes
repugnant to the Central law.
Srinivasa Raghavachar v. State of Karnataka, 1987
The present case dealt with a state law restricting legal practitioners
from appearing before land tribunals. The state was held invalid on
grounds of repugnancy to the Advocates Act, 1961.
Sukumar Mukherjee v. State of West Bengal, 1993
The West Bengal State Health Service Act, (1990) barred any member of
the state health service from carrying on private practices. This was
disputed in Sukumar Mukherjee v. State of West Bengal, (1993) on the
grounds that it was repugnant to the Indian Medical Council Act, 1956.
Enacted by the centre under the concurrent list, the 1956 Act allowed any
practitioner on the Indian Medical Register to practice in any part of the
country.
The Apex Court held that this case was different from the Srinivasa
Raghavachar v. State of Karnataka, (1987) case since legal practitioners
did not, through a voluntary act of consent, give up the rights to practice
for joining the state service. In this case, they did. The state law did not
intend to regulate the medical profession in general, only its health
service. Thus, the state law was upheld.
Kumar Sharma v. State of Karnataka, 1990
The given case held that repugnancy must only concern a matter in the
concurrent list. Additionally, if the subject matters of the legislation were
different, they would stand together. However, the dissenting opinion
claimed that the two provisions would “run on a collision course”, and be
irreconcilable. Thus, the state law must be struck down. The doctrine of
Pith and Substance does not need to be applied here.
Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust
v. State of Tamil Nadu, 1996
This case is one where repugnancy between a central and state statute is
ambiguous. A Tamil Nadu statute dealing with the affiliation of medical
colleges was challenged on grounds of repugnance against the Indian
Medical Council Act. Both laws were enacted under the concurrent list.
However, the provisions of the state act did not collide with the central
one and it was possible to follow both.
However, the Court held that the parliament intended to lay down an
exhaustive code on the subject for the entire country. This made it
repugnant to the state act, which was consequently declared invalid.
Doctrine of Colourable Legislation
The doctrine of Colourable Legislation is based on the maxim ‘what
cannot be done directly, cannot be done indirectly’. It restricts
legislatures from indirectly doing something which, due to want of
jurisdiction, they can not do directly. This encroachment may be direct
or indirect. In the case of the latter, the expression ‘colourable
legislation’ is applied. In other words, colourable legislation is a ‘fraud on
the constitution’.
The court employs the doctrine of Pith and Substance to determine if the
legislature is competent to enact the disputed statute. The extent of
encroachment is a relevant factor while determining if the enactment is
colourable legislation.
The doctrine of colourable legislation is a legal principle that aims at the
prevention of excessive and unconstitutional use of the legislative
authority of the government. The doctrine is derived from the Latin
maxim “quando aliquid prohibetur ex directo, prohibetur et per
obliquum” which means things that cannot be done directly should not
be done indirectly either. The Black’s Law Dictionary defines the word
‘colourable’ as:
Appearing to be true, valid or right.
Intended to deceive; counterfeit.
Appearance, guise or semblance.
In a literal sense, the doctrine of colourable legislation means that the
government is enacting legislation under the guise of having authority
even though it does not possess any competent authority to do so.
The judiciary has the authority to prevent the government from the
abuse of its power. When the government misuses its legislative
authority by making laws outside its demarcated jurisdiction, the
judiciary has the power to review them and strike them down if they are
found unconstitutional.
The doctrine of colourable legislation is also known as “Fraud on the
Constitution” because the legislature of the government authority does
not enact laws according to the provisions mentioned in the
Constitution. The legislative authority creates a delusion that it is acting
in compliance with the constitutional provisions but in reality, it does
not.
The Supreme Court in the case of R. S. Joshi v. Ajit Mills (1977)
determined the term colourable exercise of power, fraud on legislative
power and fraud on the constitution are similar expressions which mean
the legislature is incompetent to enact a particular law.
According to this doctrine, the legitimacy of legislation is identified
depending on the competency of the legislature to enact a particular law,
not on the motives or intentions of the legislature. The judiciary, while
determining whether a law is a colourable legislation, does not take into
account the intentions of the legislature; it only considers whether the
particular legislation is within the jurisdiction of the government
authority or not.
State of Bihar v. Kameshwar Singh, 1952
The current case was to dispute the constitutional validity of the Bihar
Land Reforms Act, 1950. The law provided that rent for the landlord’s
land, before the date of acquisition of his holding, was to vest with the
state. However, half of this was to be given to the landlord as
compensation.
The Supreme Court opined this was naked confiscation as taking of the
whole and returning a half means nothing other than taking half. While
its purported object was to lay down principles for compensation, the
actual object was simply confiscation- a subject under the concurrent
list. The Bihar Land Reforms Act was thus a piece of colourable
legislation and hence, void.
Naga People’s Movement for Human Rights v. Union of India, 1997
In this case, the Supreme Court clarified that the doctrine of Colourable
Legislation is applicable only in cases where-
The real intention is camouflaged; and
With the motive to encroach into the domain of another legislature.
The purpose of legislation may be different from what it appears.
However, it is not a case of Colourable Legislation if it does not deal with
the competency of the legislature to enact it. The doctrine does not take
into account if the law was enacted with bona fide or mala fide motives.
The only question that merits consideration is if the substance of a
statute falls under the enacting legislature’s domain or not.
Conclusion
Though borrowed from principles and ideas from across the world, the
given doctrines were adapted to suit the Indian context. The Indian
model of centre-state relations is neither unitary nor federal. It is a
hybrid of both, best described by the phrase ‘quasi-federal’. This has
caused commenters to remark that the Indian Constitution is ‘federal in
structure and unitary in spirit’.
The comment seems to be justified if one looks at the theories of
constitutional interpretation with respect to centre-state relations in
India. These doctrines are chosen, modified and applied in a way to give
the centre’s opinion more weight than the state’s. As we have observed,
in cases of infringement of its legislative competence, the doctrines tend
to be biased towards the union legislature. This proves that India is ‘a
federal state with a unitary bias’.
