DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

PRINCIPLES OF INTERPRETATION OF CONSTITUTION

SUBJECT

CONSTITUTIONAL LAW-II

NAME OF THE FACULTY

MR.NAGESWARA RAO SIR

NAME OF THE STUDENT

G.PRIYANKA

R0ll N0: - 2017030

SEM: 4thsem

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 ACKNOWLEDGEMENT

I am highly indebted t0 my H0n’ble CONSTITUTIONAL LAW pr0fess0r, MR.

NAGESWARA RAO, f0r giving -me a w0nderful 0pp0rtunity t0 w0rk 0n the t0pic:
PRINCIPLES OF INTERPRETATION OF CONSTITUTION and it is because 0f his
excellent kn0wledge, experience and guidance, this pr0ject is made with great interest and eff0rt
. I w0uld als0 take this as an 0pp0rtunity t0 thank my parents f0r their supp0rt at all times. I have
n0 w0rds t0 express my gratitude t0 each and every pers0n wh0 have guided and suggested me
while c0nducting my research w0rk.

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 TABLE OF CONTENTS

1. ABSTRACT

2. INTRODUCTION

3. LIST OF CASES

4. GENERAL RULES OF INTERPRETATION OF CONSTITUTION

5. PRINCIPLES OF INTERPRETATION OF CONSTITUTION

 Predominance of Union List

 Each Entry to be Interpreted broadly

 Doctrine of Harmonious Construction

 Doctrine of Pith and Substance

 Doctrine of Colorable Legislation

 Doctrine of Repugnancy

 Doctrine of Eclipse

 Doctrine of Severability

 Doctrine of Territorial Nexus

 Doctrine of Implied powers

 Doctrine of Incidental or ancillary powers

6. CONCLUSION

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 ABSTRACT

The interpretation of laws is confined to courts of law. In course of time, courts have evolved a
large and elaborate body of rules to guide them in construing or interpreting laws. Most of them
have been collected in books on interpretation of statutes and the draftsman would be well
advised to keep these in mind in drafting Acts.

PRE DOMINANCE OF UNION LIST- In case of overlapping between the Union and the
Concurrent List, it is again the Union List which will prevail. In case of conflict between the
Concurrent List and State List. it is the Concurrent List that shall prevail.

EACH ENTRY TO BE INTERPRETED BROADLY- Every entry should be interpreted broadly

and is requires it must be harmoniously interpreted subject to the overriding predominance of the
Union List, entry in the various lists should be interpreted broadly.

DOCTRINE OF HARMONIOUS CONSTRUCTION-It is a cardinal rule of construction that

when there are in a statute two provisions which are in such conflict with each other, that both of
them cannot stand together, they should possibly be so interpreted that effect can be given to
both.

DOCTRINE OF PITH AND SUBSTANCE- Pith means ‘true nature’ or essence of something’
and substance means ‘the most important or essential part of something’. The basic purpose of
this doctrine is to determine under which head of power or field i.e. under which list (given in the
seventh schedule) a given piece of legislation falls.

DOCTRINE OF COLORABLE LEGISLATION- The doctrine of colourability is the idea that

when the legislature wants to do something that it cannot do within the constraints of the
constitution, it colours the law with a substitute purpose which will still allow it to accomplish its
original goal.“Quando aliquid prohibetur ex directo, prohibetur et per obliqum” which means
what cannot be done directly cannot also be done indirectly.

DOCTRINE OF REPUGNANCY-If any provision of law made by the Legislature of the State is
repugnant to any provision of a law made by Parliament which is competent to enact or to any
provision of the existing law with respect to one of the matters enumerated in the Concurrent
List, then the law made by Parliament, whether passed before or after the law made by the

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Legislature of such stage or, as the case may be, the existing law shall prevail and the law made
by the Legislature of the State shall, to the extent of the repugnancy be void.

DOCTRINE OF TERRITORIAL NEXUS- 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.

DOCTRINE OF IMPLIED POWERS- Laws which are necessary and proper for the execution of
the power or incidental to such power are called implied powers and these laws are presumed to
be constitutional. In other words, constitutional powers are granted in general terms out of which
implied powers must necessarily arise.
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.

DOCTRINE OF ECLIPSE- All laws in force in India before the commencement of the
Constitution shall be void in so far they are inconsistent with the provisions of the Constitution.
Any law existing before the commencement of the Constitution and inconsistent with the
provision of Constitution becomes inoperative on commencement of Constitution. But the law
does not become dead.

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 INTRODUCTION

The interpretation of laws is confined to courts of law. In course of time, courts have evolved a
large and elaborate body of rules to guide them in construing or interpreting laws. Most of them
have been collected in books on interpretation of statutes and the draftsman would be well
advised to keep these in mind in drafting Acts. Some Interpretation Acts, lay down that every
Act shall be deemed remedial and shall accordingly receive such fair, large and liberal
construction and interpretation as will best ensure the attainment of the object of the Act
according to its true intent, meaning and spirit. The object of all such rules or principles as
aforesaid broadly speaking, is to ascertain the true intent, meaning and spirit of every statute. A
statute is designed to be workable, and the interpretation thereof by a court should be to secure
that object, unless crucial omission or clear direction makes that unattainable.

The constitution is an organic instrument. It is the fundamental law. The general rule adopted for
construing a written constitution is the same as for construing any other statute. The constitution
should be interpreted so as to give effect to all its parts.

In democratic countries the judiciary is given a place of great significance. The courts perform
the key role of expounding the provisions of the Constitution. The courts act as the supreme
interpreter, protector and guardian of the supremacy of the Constitution. The judiciary has to
perform an important role in the interpretation and enforcement of human rights inscribed in the
fundamental law of the country. Therefore, it is necessary to consider what should be the
approach of the judiciary in the matter of Constitutional Interpretation. The judiciary has to
devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of
various rights embodied in the Constitution. The task of interpreting the constitution is a highly
creative judicial function which must be in tune with the constitutional philosophy. A democratic
society lives and swears by certain values such as individual liberty, human dignity; rule of law,
constitutionalism etc. and it is the duty of the judiciary to so interpret the constitution and the law
as to constantly inculcate these values on which democracy thrives. The predominant positivist
approach of interpretation followed by the Indian Judiciary emanates from the basic traditional
theory that a judge does not create law but merely declares the law.

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LIST OF CASES

1. Security association of India v Union of India, AIR 2014 SC 3812

2. Calcutta Gas Ltd. v. State of West Bengal,AIR 1962 SC 1044
3. State of Bombay v F.N. Balsara,AIR 1951 SC 318
4. Union of India v. H. S. Dhillon,AIR 1972 SC 1061
5. International tourism Corporation v. State of Haryana,AIR 1981 SC 774
6. Re Kerala Education Bill,1959 1 SCR 995
7. Qureshi v State of Bihar,1958 AIR 731
8. Bhatia International v Bulk trading SA,(2003) 5 SCC (Jour) 22
9. State of Bombay v. F. N. Balsara,AIR 1951 SC 318
10. Profulla Kumar Mukerjee v. Bank of Khulna,(1947) 49 BOMLR 568
11. Ishwari Khetal Sugar Mills v. State of U. P,AIR 1980 SC 1955
12. K. C. G. Narayan Dev v. State of Orissa,AIR 1953 SC 375
13. State of Bihar v. Kameshwar singh,AIR 1968 SC 222
14. M. Karunanidhi v. Union of India,1956 SCR 393
15. Deep Chand v. State of U. P,1959 AIR 648
16. Zaver Bhai v. State of Bombay,1966 AIR (SC) 2384
17. State of Kerala v. M/s. Mar Appraem Kuri Co. Ltd,CIVIL APPEAL NO.6660 OF
2005.
18. Bhikhaji v. State of M.P, AIR 1955 S.C. 781
19. Keshavan Madhava Menon v. The State of Bombay, [1961] S.C.R. 288
20. AK Gopalan v. State of Madras, AIR 1950 SC 27
21. HR Banthia v. Union of India, AIR 1970 SC 1453
22. State of Bombay v. RMDC, AIR 1957 SC 699
23. Tata Iron & Steel Company vs. Bihar State, AIR 1958 SC 482
24. Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City, AIR
1955 SC 58

General rules of interpretation of the Constitution

 If the words are clear and unambiguous, they must be given full effect.

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 The constitution must be read as a whole.

 Principles of Harmonious construction must be applied.

 The constitution must be interpreted in a broad and liberalsense.

 The court has to infer the spirit of the constitution from the language.

 Internal and External aids may be used while interpreting.

 The Constitution prevails over other statutes.

PRINCIPLES OF INTERPRETATION OF CONSTITUTION.

The powers of Centre and States are divided. They cannot make laws outside their allotted
subjects. It is true that a scientific division is not possible and questions constantly arise whether
a particular subject falls in the sphere of one or the other government. This duty in a federal
constitution is vested in the Supreme Court of India. The Supreme Court has evolved the
following principles of interpretation in order to determine the respective power of the Union and
the States under the three Lists.

 PREDOMINANCE OF UNION LIST

In case of overlapping between the Union and the Concurrent List, it is again the Union List
which will prevail. In case of conflict between the Concurrent List and State List. it is the
Concurrent List that shall prevail. The principle of federal supremacy in Article 246 (I) cannot be
resorted unless there is an irreconcilable conflict between the entries in Union and State list.

Art. 246 (l) “notwithstanding anything in clauses (2) and (3)” and the opening words of clause
(3) "subject to clauses (l) and (2)” expressly secure the predominance of the Union List over the
State List and the Concurrent List and that of the Concurrent List over the State List. Thus in
case of overlapping between the Union and the State List it is the Union List which is to prevail
over the State List.

Article 246 does not provide for the competence of Parliament or the State Legislature but
merely provides for their respective fields. The Parliament does not have a blanket power to
legislature on entries mentioned in List II. It does not have supreme tight to legislate over any

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area. Article 256 is applicable only when the State law is in pith and substance at law relating to
an entry of the concurrent list on which the parliament has legislated.1

EACH ENTRY TO BE INTERPRETED BROADLY.

Subject to the overriding predominance of the Union List, entry in the various lists should be
interpreted broadly. In Calcutta Gas Ltd. v. State of West Bengal2, the Supreme Court said that
the widest possible and most liberal interpretation should be given to the language of each Entry.

In the case of State of Bombay v F.N. Balsara3 a general word used in an Entry must be
construed to the extent to all ancillary or subsidiary matters which can fairly and reasonably be
held to be included in it.‘ The Court should try. as far as possible. to reconcile entries and to
bring harmony between them. When this is not possible only then the overriding power of the
Union legislature –non-obstante clause applies and the federal power prevails.

In Union of India v. H. S. Dhillon4 the question involved was whether Parliament had
legislative competence to pass Wealth-tax Act imposing wealth-tax on the assets of a person in
agricultural land. The court held that in the case of a Central Legislation the proper test was to
inquire whether the matter ,fell in list II (State List) or List III (Concurrent list) Once it is found
that the matter does not fall under list II. Parliament will be competent to Legislate on it under its
residuary power in Entry I-96 of List I. In such a case. it becomes immaterial whether it falls
under Entries 1-96 of List or not.

“But in International tourism Corporation v. State of Haryana5, the Supreme Court held that
where the competing entries are an entry in List ll and Entry 97 of List 1 the entry in the State
List must be given a broad and plentiful interpretation and should not be interpreted in favour of
Centre by resorting to the residuary power. The residuary power cannot be so expansively
interpreted as to whittle down the power of the State Legislature. That might affect and
jeopardise the federal principle. The resort to the residuary power should be the last refuge. It is
only when all the categories in the three lists are absolutely exhausted then the residuary power

1
Security association of India v Union of India, AIR 2014 SC 3812.
2
AIR 1962 SC 1044
3
AIR 1951 SC 318
4
AIR 1972 SC 1061
5
AIR 1981 SC 774

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should be used. In the instant case the appellants challenged the validity of Section 3 of the
Haryana Passenger and Goods Taxation Act. I952. which permitted the levy of tax on passenger
and goods carried on by carriages plying on the National Highways. It was contended that the
State Legislature was incompetent to levy such a tax on motor vehicles plying on National
Highways.” It was said that the Parliament alone had power under Entry 23 read with Entry 97 of
List! to legislate in respect of National Highways. Entry 56 of List ll empowers the State to levy
such taxes which are regulatory and compensatory, i.e.. roads maintained by the State
Government. It was argued that Parliament can combine its power to legislate with respect to any
matters enumerated in Entry I to 96 of List I with its residuary power under Entry 97 of List l.
The Court rejected this argument and held that the State Legislature is competent to levy taxes on
passengers and goods carried in the National Highways under Entry 56 of List II which
empowers the State Legislature to impose taxes on goods and passengers carried on by road or
on inland waterways. The Court held that before exclusive legislative competence can be
claimed for Parliament by resorting to the residuary power, the legislative incompetence of the
State Legislature must be clearly established. Entry 97 itself is specific that a matter can be
brought under that Entry only if it is not enumerated in List II or List III. The decision in the
instant case has neutralized much of the affects of the Dhillon's case where the residuary power
was given widest interpretation.

DOCTRINE OF HARMONIOUS CONSTRUCTION

It is a cardinal rule of construction that when there are in a statute two provisions which are in
such conflict with each other, that both of them cannot stand together, they should possibly be so
interpreted that effect can be given to both. And that a construction which renders either of them
in operative and useless should not be adopted except in the last resort.

The Supreme Court held in Re Kerala Education Bill6 that in deciding the fundamental rights,
the court must consider the directive principles and adopt the principle of harmonious
construction so two possibilities are given effect as much as possible by striking a balance.

In Qureshi v State of Bihar7, The Supreme Court held that while the state should implement the
directive principles, it should be done in such a way so as not to violate the fundamental rights.

6
1959 1 SCR 995

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In Bhatia International v Bulk trading SA8, it was held that if more than one interpretation is
possible for a statute, then the court has to choose the interpretation which depicts the intention
of the legislature.

DOCTRINE OF PITH AND SUBSTANCE

Pith means ‘true nature’ or essence of something’ and substance means ‘the most important or
essential part of something’. The basic purpose of this doctrine is to determine under which head
of power or field i.e. under which list (given in the seventh schedule) a given piece of legislation
falls.

Union & State Legislatures are supreme within their respective fields. They should not encroach/
trespass into the field reserved to the other. If a law passed by one trespasses upon the field
assigned to the other—the Court by applying Pith & Substance doctrine, resolve the difficulty
&declare whether the legislature concerned was competent to make the law.

In State of Bombay v. F. N. Balsara9, the Bombay Prohibition Act, which prohibited sale and
possession of liquors in the State, was challenged on the ground that it incidentally encroached
upon import and export of liquors across custom frontier-a Central subject. It was contended that
the prohibition, purchase, use, possession and sale of liquor will effect its import. The Court
held that Act valid because the pith and substance of the Act fell under the State List and not
under Union List even though the Act incidentally encroached upon the Union Powers of
Legislation.

The Privy Council applied this doctrine in Profulla Kumar Mukerjee v. Bank of Khulna10. In
this case the validity of the Bengal Money Lenders' Act, 1946, which limited the amount and the
rate of interest recoverable by a money-lender on any loan was challenged on the ground that it
was ultra vires of the Bengal Legislature in so far as it related to ‘Promissory Notes’, a Central
subject. The Privy Council held that the Bengal Money- lenders’ Act was in pith-and substance a
law in respect of money-lending and money- lenders-a State subject and was valid even though it
trenched incidentally on “Promissory note” - a Central subject.

7
1958 AIR 731
8
(2003) 5 SCC (Jour) 22
9
AIR 1951 SC 318
10
(1947) 49 BOMLR 568

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In Ishwari Khetal Sugar Mills v. State of U. P 11., the validity of the U. P. Sugar Undertakings
(Acquisition) Act. 1971, was challenged on the ground that the State Legislature had no
competence to enact the impugned law on the ground that it fell under Parliament‘s legislative
power under Entry 52 of List I. It was contended that in view of the declaration the Parliament
had made under Entry 52 of List I to take the Sugar industry under its control, that industry went
out of Entry 24 of List II and hence the State Legislature was divested of all legislative power to
legislate in respect of Sugar Industry and as the impugned legislation was in respect of industrial
undertaking in Sugar (Entry 52 of List I) a central subject the impugned legislation was void.
The Court, however rejected these contentions and held that there was no conflict between that
State Act and the Central Act under Industries Act, 1951. The power of acquisition or requisition
of property in Entry 42, List III is an independent power and the impugned Act being in pith and
substance, an Act to acquire scheduled undertakings the power of the State Legislature to
Legislate is referable to Entry 42 and its control was taken over by the Central Government.

DOCTRINE OF COLOURABLE LEGISLATION

The doctrine of colourability is the idea that when the legislature wants to do something that it
cannot do within the constraints of the constitution, it colours the law with a substitute purpose
which will still allow it to accomplish its original goal.

Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliqum” which means what
cannot be done directly cannot also be done indirectly.

The rule relates to the question of legislative competency to enact a law. Colourable Legislation
does not involve the question of bonafides or malfides. A legislative transgression may be patent,
manifest or direct or may be disguised, covert or indirect. It is also applied to the fraud of
Constitution.

In India ‘the doctrine of colorable legislation’ signifies only a limitation of the law making
power of the legislature. It comes into picture while the legislature purporting to act within its
power but in reality it has transgressed those powers. So the doctrine becomes applicable
whenever legislation seeks to do in an indirect manner what it cannot do directly. If the

11
AIR 1980 SC 1955

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impugned legislation falls within the competence of legislature, the question of doing something
indirectly which cannot be done directly does not arise.

In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the
Legislative competence of the Parliament and the State Legislative Assemblies by outlining the
different subjects under list I for the Union, List II for the States and List III for the both as
mentioned in the seventh schedule.

This doctrine comes into play when a legislature does not possess the power to make law upon a
particular subject but nonetheless indirectly makes one. By applying this principle the fate of the
Impugned Legislation is decided.

K. C. G. Narayan Dev v. State of Orissa12, the Supreme Court explained the meaning and scope
of the doctrine of Colourable Legislation in the following terms :

"If the Constitution distributes the legislative power amongst different Legislative bodies, which
have to act within their respective spheres marked out by specific legislative Entries, or if there
are limitations on the legislative authority in the shape of fundamental rights, question arises as
to whether the Legislature in a particular case has or has not, in respect to the subject-matter of
the statute or in the method of enacting it, transgressed the limits of its constitutional powers.
Such transgression may be patent, manifest or direct, but it may also be disguised, covert or
indirect, or and it is to this latter class of cases that the expression colourable legislation has been
applied in judicial pronouncements. The idea conveyed by the expression is that although
apparently a legislature in passing a statute purported to act within the limits of its powers, yet in
substance and in reality it transgressed these powers, the transgression being veiled by what
appears, on proper examination, to be a mere pretence or disguise. In other words, it is the
substance of the Act that is material and not merely the form or outward appearance, and if the
subject-matter in substance is something which is beyond the powers of that Legislature to
legislate upon the form in which the law is clothed cannot save it from condemnation. The
Legislature cannot violate the constitutional prohibitions by employing indirect methods.”

"Colourability" is thus bound up with incompetency and not tainted with bad faith or evil motive.
A thing is colourable which in appearance only and not in reality, what it purports to be.
12
AIR 1953 SC 375

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State of Bihar v. Kameshwar singh13, is the only case where a law has been declared invalid on
the ground of colourable legislation. In this case the Bihar Land Reforms Act, 1950, was held
void on the ground that though apparently it purported to lay down principle for determining
compensation yet in reality it did not lay down any Such principle and thus indirectly sought to
deprive the petitioner of any compensation.

DOCTRINE OF REPUGNANCY

If any provision of law made by the Legislature of the State is repugnant to any provision of a
law made by Parliament which is competent to enact or to any provision of the existing law with
respect to one of the matters enumerated in the Concurrent List, then the law made by
Parliament, whether passed before or after the law made by the Legislature of such stage or, as
the case may be, the existing law shall prevail and the law made by the Legislature of the State
shall, to the extent of the repugnancy be void. Article 254 (1) only applies where there is
inconsistency between a Central Law and a State Law relating to a subject mentioned in the
Concurrent List.

M. Karunanidhi v. Union of India14, Fazal Ali J., reviewed all its earlier decisions and
summarised the test of repugnancy. According to him a repugnancy would arise between the two
statutes in the following situations:

1. It must be shown that there is clear and direct inconsistency between the two enactments
[Central Act and State Act] which is irreconcilable, so that they cannot stand together or operate
in the same field.

2. There can be no repeal by implication unless the inconsistency appears on the face of the two
statutes.

3. Where the two statutes occupy a particular field, but there is room or possibility of both the
statutes operating in the same field without coming into collusion with each other, no
repugnancy results.

13
AIR 1968 SC 222
14
1956 SCR 393

14
4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct
and separate offences, no question of repugnancy arises and both the statutes continue to operate
in the same field.

Exceptions

The above rule of repugnancy is, however, subject to the exception provided in clause (2) of this
Article. According to clause (2) if a State Law with respect to any of the matters enumerated in
the Concurrent List contains any provision repugnant to the provisions of an earlier law made by
Parliament, or an existing law with respect of that matter, then the State law if it has been
reserved for the assent of the President and has received his assent, shall prevail notwithstanding
such repugnancy. But it would still be possible for the Parliament under the provision to clause
(2) to override such a law by subsequently making a law on the same matter. If it makes such a
law the State Law would be void to the extent of repugnancy with the Union Law.

In Deep Chand v. State of U. P15., the validity of U. P. Transport Service (Development) Act
was involved. By this Act the State Government was authorised to make the Scheme for
nationalisation of Motor Transport in the State. The law was necessitated because the Motor
Vehicles Act, 1939 did not contain any provision for the nationalisation of Motor Transport
Services. Later on, in 1956 the Parliament with a view to introduce a uniform law amended the
Motor Vehicles Act, 1939, and added a new provision enabling the State Government to frame
rules of nationalisation of Motor Transport. The Court held that since both the Union Law and
the State Law occupied the same field, the State Law was void to the extent of repugnancy to the
Union Law.

In Zaver Bhai v. State of Bombay16, Parliament enacted the Essential Supplies Act, 1946, for
regulating production, supply and distribution of essential commodities. A contravention of any
provision of the above Act was punishable with imprisonment upto 3 years or fine or both. In
1947, considering the punishment inadequate, the Bombay Legislature passed an Act enhancing
the punishment provided under the Central Law. The Bombay Act received the assent of the
President and thus prevailed over the Central Law and become operative in Bombay. However.

15
1959 AIR 648
16
1966 AIR (SC) 2384

15
in 1950 Parliament amended its Act of 1946 and enhanced the punishment. It was held that as
both occupied the same field (enhanced punishment) the State law became void as being
repugnant to the Central law.

In State of Kerala v. M/s. Mar Appraem Kuri Co. Ltd17., the question involved was whether the
Kerala Chitties Act, 1975 became repugnant to the Central Chit Funds Act, 1984 upon the
enactment of Central Act i.e., when the President assented to the Bill or when a notification was
issued under the Act bringing the Act in force in the State of Orissa. The Supreme Court held
that the repugnancy arises on making of the law and not on its enforcement. The reason given by
the Court is that the verb "made" in past tense finds place in the Head Note to Article 245. The
verb "make" in the present tense exists in Article 245(2) and the verb "made" finds place in
Article 246. The word "made" has also been used in Article 250(2). The word "make" and not
"commencement" has a specific legal connotation meaning thereby "to legislate".

DOCTRINE OF ECLIPSE

The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It
is not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can
be removed by constitutional amendment to the relevant fundamental right so that eclipse
vanishes and the entire law becomes valid.

All laws in force in India before the commencement of the Constitution shall be void in so far
they are inconsistent with the provisions of the Constitution. Any law existing before the
commencement of the Constitution and inconsistent with the provision of Constitution becomes
inoperative on commencement of Constitution. But the law does not become dead. The law
remains a valid law in order to determine any question of law incurred before commencement of
the Constitution. An existing law only becomes eclipsed to the extend it comes under the
shadow of the FR.

Bhikhaji v. State of M.P18 In this case the provisions of Civil Procedure and Berar Motor
Vehicles (Amendment) Act 1948 authorized the State Government to take up the entire motor
transport business in the Province to the exclusion of motor transport operators. This provision

17
CIVIL APPEAL NO.6660 OF 2005
18
AIR 1955 S.C. 781

16
though valid when enacted, but became void on the commencement of the Constitution in 1950
as they violated Article 19(1) (g) of the Constitution. However, in 1951 Clause (6) of Article 19
was amended by the Constitution (1st Amendment Act) so as to authorize. The Government to
monopolise any business. The Supreme Court held that the effect of the amendment was to
remove the shadow and to make the impugned Act free from blemish or infirmity. It became
enforceable against citizens as well as non-citizens after the constitutional impediment was
removed. This law was eclipsed for the time being by the fundamental rights. As soon as the
eclipse is removed, the law begins to operate from the date of such removal.

Keshavan Madhava Menon v. The State of Bombay19 In this case 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)20 that existing law became void “to the extent of such inconsistency”.

The court said that the law became void not in to 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.

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 SEVEREABILITY

19
[1961] S.C.R. 288
20
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.

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Doctrine of severability provides that if an enactment cannot be saved by construing it consistent
with its constitutionality, it may be seen whether it can be partly saved. Article 13 of the
Constitution of India provides for Doctrine of severability which states that-

All laws in force in India before the commencement of Constitution shall be void in so far they
are inconsistent with the provisions of the Constitution.

The State shall not make any law which takes away/ shortens the rights conferred in Part III of
the Constitution ie. Fundamental Rights. Any law made in contravention of the provisions of the
Constitution shall be void and invalid. The invalid part shall be severed and declared invalid if it
is really severable. (That is, if the part which is not severed can meaningfully exist without the
severed part.) Sometimes the valid and invalid parts of the Act are so mixed up that they cannot
be separated from each other. In such cases, the entire Act will be invalid.

AK Gopalan v. State of Madras21 In this case, the Supreme Court said that in case of
repugnancy to the Constitution, only the repugnant provision of the impugned Act will be void
and not the whole of it, and every attempt should be made to save as much as possible of the Act.
If the omission of the invalid part will not change the nature or the structure of the object of the
legislature, it is severable. It was held that except Section 14 all other sections of the Preventive
Detention Act, 1950 were valid, and since Section 14 could be severed from the rest of the Act,
the detention of the petitioner was not illegal.

HR Banthia v. Union of India22 In this case, the Supreme Court struck down certain provisions
of the Gold Control Act, 1968 and since these were not inextricably bound up with the rest of the
provisions of the Act, the rest were held to be valid. The decision is an illustration of severability
in application.

DOCTRINE OF TERRITORIAL NEXUS

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

21
AIR 1950 SC 27
22
AIR 1970 SC 1453

18
operation. 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. 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.

The Doctrine of Territorial nexus can be invoked under the following circumstances-

Whether a particular state has extra-territorial operation.If there is a territorial nexus between the
subject- matter of the Act and the state making the law

It signifies that the object to which the law applies need not be physically located within the
territorial boundaries of the state, but must have a sufficient territorial connection with the state.
A state may levy a tax on a person, property, object or transaction not only when it is situated
within its territorial limits, but also when it has a sufficient and real territorial connection with it.
Nexus test was applied to the state legislations also

State of Bombay v. RMDC23 the Respondent was not residing in Bombay but he conducted
Competitions with prize money through a newspaper printed and published from Banglore
having a wide circulation in Bombay. All the essential activities like filling up of the forms, entry
fees etc for the competition took place in Bombay. The state govt. sought to levy tax the
respondent for carrying on business in the state.

The question for decision before the Supreme Court was if the respondent, the organizer of the
competition, who was outside the state of Bombay, could be validly taxed under the Act.

It was held that there existed a sufficient territorial nexus to enable the Bombay Legislature to
tax the respondent as all the activities which the competitor is ordinarily expected to undertake
took place mostly within Bombay.

Tata Iron & Steel Company vs. Bihar State24 where the State of Bihar passed a Sales Tax Act
for levy of sales tax whether the sale was concluded within the state or outside if the goods were
produced, found and manufactured in the state .The court held there was sufficient territorial

23
AIR 1957 SC 699
24
AIR 1958 SC 482

19
nexus and upheld the Act as valid. Whether there is sufficient nexus between the law and the
object sought to be taxed will depend upon the facts and circumstances of a particular case.

It was pointed out that sufficiency of the territorial connection involved a consideration of two
elements- a) the connection must be real and not illusory b) the liability sought to be imposed
must be pertinent to that connection.

DOCTRINE OF IMPLIED POWERS

Laws which are necessary and proper for the execution of the power or incidental to such power
are called implied powers and these laws are presumed to be constitutional. In other words,
constitutional powers are granted in general terms out of which implied powers must necessarily
arise. Likewise constitutional restraints are put in general terms out of which implied restraints
must also necessarily establish.

This is a Legal principle which states that, in general, the rights and duties of a legislative body
or organization are determined from its functions and purposes as specified in its constitution or
charter and developed in practice.

PRINCIPLE OF INCIDENTAL OR ANCILLARY POWERS

Incidental and ancillary powers are an elementary cardinal rule of interpretation that the words
used in the Constitution which confer legislative power must receive the most liberal
construction and if they are words of wide amplitude, they must be interpreted so as to give
effect to that amplitude25. It would not be correct to put a narrow or restricted construction on the
words of wide amplitude in a Constitution.

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
25
VN Shukla, “Constitutional Law”, 6th Ed., Wadhwa Nagpur: Lexis Nexis Butterworths, 2010, p575

20
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.

Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City26 Where the
appellant was assessed by the Income Tax officer, Bomaby (by an assessment order dated 31st
March, 1948) for the assssessment year 1947-1948 on a total income of rs.19,66,782 including a
sum of Rs.9,38,011 representing capital gains assessed in the hands of the4 appellant under
section 12(B) of the Indian Income tax Act, 1922. Now, this said amount of capital gains was
earned by the appellant in the following circumstances. The asppellant had a half share in certain
immovable properties that were situated in Bombay, which were sold by the appellant himself
along with his co-owners in the year ending 31st December, 1946 to a private limited

Company known as Mafatlal Gagalbhai & Company limited. The profits on the sale of the said
properties amounted to Rs.18,76,023 and there by the appellants half share came to a sum of Rs.
9,38,011 which was included in the calculation of tax under Section 12(B) of the Act.

The main issue of the case is as follows:

Whether the imposition of a tax under the head “capital gains” by the Central Legislature is ultra
vires?

Now, the principle question arising is that Section 12(B) of the Indian Income tax act, 1922;
which authorized the imposition of tax on capital gains will fall under Entry 82 or Entry 86 of
List 1 of the seventh Schedule of the Constitution of India?

Section 12(B) is intra vires the powers of the Central Legislature, acting under Entry 82 (which
says, taxes on income other than agricultural income) of list 1 in seventh schedule of the
constitution of India. In this view of the matter, it is completely unnecessary to consider or
express any opinion as to the meaning, scope and ambit of Entry 86 in the same list. The appeal
is therefore dismissed.

26
AIR 1955 SC 58

21
CONCLUSION

Constitution is the supreme and fundamental law of our country. Since it is written in the
form of a statute, the general principles of statutory interpretation are applicable to interpretation
of the constitution as well. It is important to note that the constitution itself endorses the general
principles of interpretation through Article 367(1), which states that unless the context otherwise
requires, the General Clauses Act, 1897 shall apply for the interpretation of this constitution as it
applies for the interpretation of an act of the legislature.

The letters of the constitution are fairly static and not very easy to change but the laws
enacted by the legislature reflect the current state of people and are very dynamic. To ensure that
the new laws are consistent with the basic structure of the constitution, the constitution must be
interpreted in broad and liberal manner giving affect to all its parts and the presumption must be
that no conflict or repugnancy was intended by its framers. Applying the same logic, the
provisions relating to fundamental rights have been interpreted broadly and liberally in favor of
the subject. Similarly, various legislative entries mentioned in the Union, State, and Concurrent
list have been construed liberally and widely.

BIBLIOGRAPHY

 MP.Jain, Indian Constitutional law, eighth edition, 2016.

 VN Shukla, “Constitutional Law”, 6th Ed., Wadhwa Nagpur:Lexis Nexis Butterworths,
2010
 JN Pandey, The constitutional law of India,51st edition, 2018.

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