PRINCIPLE OF CONSTITUTIONAL INTERPRETATION

INTRODUCTION

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 a broad and liberal manner giving effect 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. There are
basically three types of interpretation of the constitution.

HISTORICAL INTERPRETATION

Ambiguities and uncertainties while interpreting the constitutional provisions can be clarified
by referring to earlier interpretative decisions.

CONTEMPORARY INTERPRETATION

The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.

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 inoperative and useless should not be adopted except in the last resort.

The Supreme Court held in Re Kerala Education Bill[1] 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 Bihar[2], 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.

In Bhatia International v Bulk trading SA[3], 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.

INTERPRETATION OF THE PREAMBLE OF THE CONSTITUTION

The preamble cannot override the provisions of the constitution. In Re Berubari[4], the
Supreme Court held that the Preamble was not a part of the constitution and therefore it could
not be regarded as a source of any substantive power.

In Keshavananda Bharati’s case[5], the Supreme Court rejected the above view and held the
preamble to be a part of the constitution. The constitution must be read in the light of the
preamble. The preamble could be used for the amendment power of the parliament under
Art.368 but basic elements cannot be amended.

The 42nd Amendment has inserted the words “Secularism, Socialism, and Integrity” in the
preamble.

General rules of interpretation of the Constitution

1. If the words are clear and unambiguous, they must be given the full effect.
2. The constitution must be read as a whole.
3. Principles of harmonious construction must be applied.
4. The Constitution must be interpreted in a broad and literal sense.
5. The court has to infer the spirit of the Constitution from the language.
6. Internal and External aids may be used while interpreting.
 7. The Constitution prevails over other statutes.

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

The following principles have frequently been discussed by the courts while interpreting the
Constitution:

1. Principle of colourable legislation

2. Principle of pith and substance
3. Principle of eclipse
4. Principle of Severability
5. Principle of territorial nexus
6. Principle of implied powers

Principle 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 competence 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 colourable 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
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.

Principle 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 trespass 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.

If the pith & substance of the law (i.e. the true object of the legislation) relates to a matter
within the competence of the legislature which enacted it, it should be held intra vires—
though the legislature might incidentally trespass into matters, not within its competence. The
true character of the legislation can be ascertained by having regard—to the enactment as a
whole — to its object – to the scope and effect of its provisions.

Case: State of Bombay v. FN Balsara[6]

Bombay Prohibition Act, 1949 which prohibited sale & possession of liquors in the State,
was challenged on the ground that it incidentally encroached upon Imports & Exports of
liquors across custom frontier – a Central subject. It was contended that the prohibition,
purchase, use, possession, and sale of liquor will affect its import. The court held that act
valid because the pith & substance fell under Entry 8 of State List and not under Entry 41 of
Union List.
Principle 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 a 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 the
commencement of the Constitution.  An existing law only becomes eclipsed to the extent it
comes under the shadow of the FR.

Case:  Keshavan Madhava Menon v. The State of Bombay[7]

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)[8] 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 of 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.
Principle of Severability
The 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 by Part III
of the Constitution i.e. 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.

Case: AK Gopalan v. State of Madras[9]

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.

Anciliary Powers

Ancillary or incidental powers mean those powers that support the powers that are expressly
conferred. There are some express powers given to both the Central and State Governments
through the three lists specified in the Seventh Schedule. The doctrine of ancillary or
incidental powers means that these express powers to legislate on a matter also consist of the
power to legislate on an incidental or ancillary matter.
Such a power is essential for the proper exercise of the expressly conferred legislative
powers. For example, the power to legislate on banking would also include all the related
powers to legislate on matters like functions of banks, the composition of their boards,
relationship with RBI, etc. Similarly, the power to legislate on an entry dealing with forests
would include the power of afforestation, deforestation, planning and management of forest
as ancillary matters.

 It is an addition to the doctrine of Pith and Substance.

 It also includes rights to legislate on ancillary matters with the right to legislate on
a subject.
 It doesn’t imply that the extent of the power can be stretched out to an
unreasonable extent. For example, in R M D  Charbaugwala  vs State of
Mysore,  [8] Supreme Court held that wagering and betting is a state subject as
referenced in the State list however it excludes capacity to impose taxes on
wagering and betting because it exists as a separate item in the same list.
 In Prafulla Kumar  Mukherjee  v. The Bank of  Commerce  case,[9] it is explained
that matters with which state legislature is dealing may affect any item in the union
list. The court held that, according to its true nature and character, such a matter
should be put in the appropriate list.

Doctrine Of Occupied Field

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.

The Curious Case of State of Kerala v. Mar Appraem Kuri

Let us understand this doctrine with the help of a famous case. In the case of State of Kerala
& Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr.[1], the Centre enacted the Chit Funds Act
(Central Act). For the Law to become operative in any state, the Central Government would
have to issue a notification under Section 3 of the Central Act. In the meantime, the State of
Kerala enacted a separate act on ‘Chit Funds’ called as Kerala Chitties Act. However, the
Central Act did not get notified in Kerala resulting into a situation wherein there was only
one Act in force in the State of Kerala i.e. the Kerala Chitties Act. It was contended that the
Kerala Chitties Act was repugnant to the un-Notified Central Act. The Supreme Court
held that even an un-notified Central law attracts art 254.

The reasoning given by the Supreme Court was that the Central Enactment covered the entire
‘field’ of ‘Chit Funds’ under the Concurrent List. Even though the Central Chit Funds Act
was not brought in force in the State of Kerala, it is still a law ‘made’, which is alive as an
existing law.

The Court emphasized that Article 254 uses the verb ‘made’ and the ‘making’. Thus, the
‘making’ of a law is complete, even before that law is notified. The court also said that:
“The verb ‘make’ or the verb ‘made’ is equivalent to the expression ‘to legislate’. The
importance of this discussion is to show that the Constitution framers have deliberately used
the word ‘made’ or ‘make’ in the above Articles.

Our Constitution gives supremacy to the Parliament in the matter of making of the laws or
legislating with respect to matters delineated in the three Lists. The principle of supremacy of
the Parliament, the distribution of legislative powers, the principle of exhaustive
enumeration of matters in the three Lists are all to be seen in the context of making of laws
and not in the context of commencement of the laws.”

Thus, the State Legislature is denuded of Legislative Competence as soon as the Parliament,
by enacting the Central Act, intended to occupy the entire field of ‘Chit Funds’ under the
Concurrent List.

Doctrine Of Repugnancy

Repugnancy means the conflict between two pieces of legislation which when applied to the
same facts produce different results. Repugnancy arises when the provisions of two laws are
so inconsistent and irreconcilable that it is impossible to do one without disobeying the other.

In the Indian context, if such a conflict arises between a central and a state legislation, then
the central law will prevail. This has been stated in Article 254 of the Indian Constitution and
has also been further clarified by the Supreme Court in various cases like I.T.C Ltd. V.
Agricultural Produce Market Committee[1].

In M. Karunanidhi v. Union of India, the Supreme Court held that, where the provisions of a
Central Act and a State Act in the Concurrent list are fully inconsistent and absolutely
irreconcilable, the Central Act will prevail and the State Act will become void in view of the
repugnancy.
Residuary Powers

The framers of the Constitution had placed matters of national concern in the Union List and
those of purely State or local significance in the State List. Matters that are of common
interest to the States and the Union were placed in the Concurrent List, in order to ensure
uniformity in legislation with due regard to the country’s diversity.

Parliament and the State legislatures have exclusive powers to legislate on items in the Union
List and the State List respectively. Both can legislate on items in the Concurrent List.
However, foreseeing the possibility of a situation in which legislation might be required on
matters that are not mentioned in any of the three Lists, the Founding Fathers made residuary
provisions in Article 248 of the Constitution and Entry 97 of the Union List. The residuary
powers of legislation are vested in Parliament.

Article 248 (2) of the Constitution of India says that the Parliament has exclusive power to
make any law with respect to any matter not enumerated in list II and III. Such power shall
include the power of making any law imposing a tax not mentioned in either of those lists.

The entry 97 of Union List also lays down that parliament has exclusive power to make
laws with respect to any matter not enumerated in list II or III.

Thus, Article 248 and Entry 97 of the Union List of Constitution of India assign the residuary
powers of legislation exclusively to the union If no entry in any of the three lists covers a
piece of legislation , it must be regarded as a matter not enumerated in any of the three lists,
and belonging exclusively to parliament under entry 97, list I by virtue of Art. 248. In other
words, the scope and extent of Article 248 is identified with that of entry 97, list I.

But the scope of the residuary powers is restricted. This is because the three lists viz Union,
State and Concurrent cover all possible subjects. Then, the court can also decide whether a
subject matter falls under the residuary power or not. The rationale behind the residual power
is to enable the parliament to legislate on any subject, which has escaped the scrutiny of the
house, and the subject which is not recognizable at present. But, the framers of constitution
intended that recourse to residuary powers should be the last resort, and not the first step.
Sarkaria Commission

In past, several states have demanded that the residuary powers, including those of taxation,
should be vested in the States. In defence of its decision to transfer the residuary powers to
the Concurrent List rather than to the States List, the Centre pointed to the strong unitary bias
of the country’s federal structure.

The Sarkaria Commission on Centre-State relations, which submitted its report in 1988, had
also rejected the suggestion that the residuary powers should be vested in the States, even
though it endorsed the Supreme Court’s interpretation that these powers cannot be so
expansively interpreted as to whittle down the power of the State legislatures. The
Commission, however, backed the suggestion to transfer Entry 97 from the Union List to the
Concurrent List.

The Sarkaria Commission recommended that the residuary power of legislation in regard to
taxation remain with Parliament because, it said, the Constitution-makers did not include any
entry relating to taxation in the Concurrent List so as to avoid Union-State frictions, double
taxation and frustrating litigation. The Commission said that the power to tax might be used
not only to raise resources but also to regulate economic activity, and warned that there might
be situations in which a State, in the garb of introducing a new subject of taxation, may
legislate in a manner prejudicial to national interest. But it justified the transfer of other
residuary powers to the Concurrent List because, it felt, the exercise of such power by the
States would be subject to the rules of Union supremacy that have been built into the scheme
of the Constitution, particularly Articles 246 and 254.