INTERPRETATION OF STATUTES

PRINCIPLES OF CONSTITUTIONAL
INTERPRETATION

SUBMITTED TO-
Prof. Enam Firdaus SUBMITTED BY-
Faculty of LAW, JMI SHABNAM SALEEM
B.A.LL.B. (Hons.) 6th Sem. S/F
Faculty of Law
INTRODUCTION.
A Constitution is an organic instrument. It is a fundamental law. It being in the form of a statute
the various principles of interpretation discussed in the preceding pages are applicable to the
interpretation of the Constitution also. The general rules adopted for construing a written
constitution embodied in a statute are the same as for construing any other statute. As is the case
with ordinary statutes, the court likewise attempts to find out the intention of the framers of the
constitution from the words used by them. Where more than one reasonable interpretation of a
constitutional provision are possible, that which would ensure a smooth and harmonious working
of the Constitution shall be accepted rather than the one that would lead to absurdity or give rise
to practical inconvenience or make well existing provisions of existing law nugatory. The
Constitution must be interpreted in a broad and liberal manner giving effect to all its parts and
the presumption should be that no conflict or repugnancy was intended by its framers. It cannot
be construed in a narrow and pedantic sense and the court should be guided with a broad and
liberal spirit. While interpreting the Constitution a construction most beneficial to the widest
possible amplitude must be adopted. One should give to Parliament the freedom, within the
framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It is
necessary towards that end that the Constitution should not be construed in a narrow and
pedantic sense.

Constitutional interpretation, or constitutional construction, the term more often used by the
Founders, is the process by which meanings are assigned to words in a constitution, to enable
legal decisions to be made that are justified by it. Some scholars distinguish between
"interpretation" — assigning meanings based on the meanings in other usages of the terms by
those the writers and their readers had probably read, and "construction" — inferring the
meaning from a broader set of evidence, such as the structure of the complete document from
which one can discern the function of various parts, discussion by the drafters or ratifiers during
debate leading to adoption ("legislative history"), the background of controversies in which the
terms were used that indicate the concerns and expectations of the drafters and ratifiers,
alternative wordings and their meanings accepted or rejected at different points in development,
and indications of meanings that can be inferred from what is not said, among other methods of
analysis.

Constitution is a supreme law governing conduct of government and semi-governmental

institutions and their affairs. It regulates inter se relationship of the Government and the people
governed. It is not an ordinary statute enacted on a particular topic of legislation. The history of
the Constitution would show that apart from elected representatives of the people, in framing it,
views of all sections of society and particularly of learned men with experience in political and
social life were formally invited and considered. The Constitution is thus, a permanent document
to endure for ages. The words and expressions in the Constitution have to be construed by not
only understanding the mind of the framers but on the basis of each generation’s experience in
relation to current issues and topics. A Constitution as the Indian Constitution, cannot
comprehend, at the time of its framing, all issues and problems that might arise in its working in
the times ahead. The Constitution, therefore, contains only basic democratic principles. It
contains habits and aspirations of people of that generation, but it is drafted in a way to realize
those objectives for future generations.

The immortal words of Justice Holmes — “Spirit of law has never been logic but it has been
experience” apply with greater force to constitutional law. We have, therefore, to interpret the
Constitution with regard to the framers’ intentions, but more with the aid of our own experiences
on current issues. Precedents are an aid to the construction of the Constitution, but more
important for guidance in interpreting a document regulating human affairs are basic “human
values” which we have imbibed through our religion, customs, philosophy and way of life. In the
absence of any other aid, we have to test the constitutional provisions on the basis of
fundamental human values as have developed by our tradition, culture and philosophy. When I
use the word “religion”, in a pluralistic society as India means ancient “Vedic” or “Hindu”
religion and all other religions like “Islam”, “Christianity”, “Buddhism” and “Jainism” and
others which have flourished in our country and inspired since centuries people of various
sections of our societies. These religions have created a composite culture and a distinct lifestyle
of the people of India.

Framing a Constitution and working it are two different processes. Founders framed it not only
for India as it existed, when it attained freedom from British rule, but for the India of the future
to guide its people from generation to generation. With all the best intellect, talent and foresight,
the framers could not have envisaged all situations and problems that might be faced in future in
the working of the Constitution. Ours is a comparatively new democracy with no traditions in
constitutional principles of our own, except those which we have inherited from the British. We
are, therefore, required to develop our own traditions suited to our social conditions, morals and
thinking. In this stupendous and difficult task of working of the Constitution, the higher courts
have an important role to play. The Constitution nowhere speaks of the theory of balance of
power but in its structure and scheme, the three organs — legislature, executive and judiciary,
are clearly perceptible. This balance of power in the three organs has to be maintained for the
common good of a citizen or individual. A common citizen or individual is the centre or focal
point of our Constitution. This is apparent from its “preamble” which among other objectives
assures “the dignity of the individual”. In interpreting the Constitution, this common man, who is
at the centre and focus of all activities, described by Churchill as “the little man with a little
pencil with a little ballot to vote”, should not be forgotten. All the principles of interpretation
which lead to the protection and enhancement of the dignity of an individual should be resorted
to and all other interpretations, contrary in effect, have to be eschewed. Amongst individuals,
those who are the weakest and the most deprived, have to be first looked after. The Father of the
Nation — Mahatma Gandhi — has given us a talisman or a test to judge our social and
individual actions which should also guide the interpreters of the Constitution and those working
it. The advice runs thus:

“When you are in doubt, think of the most weak and deprived member of society and consider
whether the line of action you propose to take is going to benefit him in any manner and to what
extent”.

“139. In the interpretation of a constitutional document, words are but the framework of concepts
and concepts may change more than words themselves. The significance of the change of the
concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the
meaning of words without an acceptance of the line of their growth. It is aptly said that the
intention of the Constitution is rather to outline principles than to engrave details.”

M.B. Shah, J. speaking for the Bench of the Supreme Court on the claim concerning “the right of
a voter to know the antecedents of a candidate contesting election for the legislature” found
contents of such rights in the fundamental rights guaranteed under Article 19(1) (a) of the
Constitution. Relying on the observations of Mathew, J., he observes: (SCC paras 42, 55 & 78)

There is no such concept of derivative fundamental rights. It is established that fundamental

rights themselves have no fixed content, most of them are empty vessels into which each
generation must pour its content in the light of its experience. The attempt of the Court should be
to expand the reach and ambit of the fundamental rights by the process of judicial interpretation.
The Constitution is required to be kept young, energetic and alive. Therefore, as the phrase
“freedom of speech and expression” is given the meaning to include citizens’ right to know the
antecedents of the candidates contesting election of MP or MLA, such rights could not be set at
naught by the legislature.

Constitutional law thus being a higher law, is open to interpretation and evolution, and in such
evolution a knowledge of tradition, history and philosophy being the necessary inputs, can be
certainly useful and should be taken into account. Such knowledge may certainly put an
important consideration leading courts to prefer, at times, bold activism and prudent self-restraint
at other times. But the vision of a great judiciary has to go much beyond the temporary,
occasional whims and pressures even defiance, rebellions and outbursts, of the social and
political environment in which it operates. No great court has ever existed without a sense of any
historical purpose and a mission, capable of resisting the pressures of the day.

In the Presidential Reference on Gujarat Assembly Election16 at another place, Pasayat, J.,
observes:

“While making such an interpretation the roots of the past, the foliage of the present and the
seeds of the future cannot be lost sight of. Judicial interpretation should not be imprisoned in
verbalism and words lose their thrust when read in vacuo. Context would quite often provide the
key to the meaning of the word and the sense it should carry. Its setting would give colour to it
and provide a cue to the intention of the legislature in using it. A word is not a crystal —
transparent and unchanged; it is the skin of living thought and may vary greatly in colour and
content according to the circumstances and the time in which the same is used....” (Gujarat
Assembly Election16, SCC pp. 318-19, para 136.)
In the case of Aruna Roy v. Union of India Article 28(1) of the Constitution came up for
interpretation when in the National Curriculum prepared by NCERT, study of religions was
sought to be introduced in the State-aided institutions. Prohibition on “religious instruction”
under Article 28(1) of the Constitution came up for consideration before the Court. It was held:
(SCC pp. 404 & 406, paras 81 & 84)

The Constitution was framed by its makers keeping in view the situations and conditions
prevailing at the time of its making; but being a permanent document, it has been conceived in a
manner so as to apply to situations and conditions which might arise in future. The words and
expressions used in the Constitution, in that sense, have no fixed meaning and must receive
interpretation based on the experience of the people in the course of working of the
Constitution.”

Therefore, while interpreting the Constitution one must consider not merely logic and context of
the Constitution, but the history of the nation, its customs, and accepted standards of right
conduct. All this cumulatively shapes the progress and are the factors which singly or in
combination should shape the growth of constitutional law. Precedents have great utility in
shaping the constitutional law but precedents in themselves and uniformity in law ceases to be
good when it becomes uniformity of operation. The social interest served by certainty must then
be balanced against the social interest served by equity and fairness or other elements of social
welfare. These may enjoin upon the court the duty of drawing the line at another angle, of
staking the path along new courses, of marking a new point of departure from which others who
come after its opinion set out upon their journey20. A court, therefore, and especially one dealing
with constitutional, federal or generally transnational matters, has to have the courage to stand
against temporary pressures whenever the “higher law”, which is its mission to enforce, so
demands. For it is not the impact analysis, as valuable as it certainly is, but rather the “higher
law” itself — the existence of a hierarchy of norms — which legitimizes judicial review and the
inevitable activism that is implied by any effective sort of such review.

Insignificant is the power of innovation of any judge, when compared with the bulk and pressure
of the rules that hedge him on every side. Innovate, however, to some extent, he must, for with
new conditions there must be new rules. All that the method of sociology demands is that within
this narrow range of choice he shall search for social justice. This creative work of interpretation
of constitutional provisions by the judges has to continue because law and particularly
constitutional law is indeed, a historical growth, for it is an expression of customary morality
which develops silently and unconsciously from one age to another. The judicial restraint or
restraining power of the judiciary does not manifest its chief worth in the few cases in which the
legislature has gone beyond the lines that mark the limits of discretion. Rather we shall find its
chief worth in making vocal and audible the ideals that might otherwise be silenced, in giving
them continuity of life and of expression, in guiding and directing choice within the limits where
choice ranges. This function should preserve to the courts the power that now belongs to them, if
only the power is exercised with insight into social values, and with suppleness of adaptation to
changing social needs.

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 Bill1that 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 Bihar2The 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 SA3 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 , 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 Bharathi’s case, 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.

1
1959 1 SCR 995
2
AIR 1958 731
3
2003 5 SCC
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 colorable 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 Colorable Legislation

The doctrine of colorability is the idea that when the legislature wants to do something that it
cannot do within the constraints of the constitution, it colors 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. Colorable Legislation
does not involve the question of bona fides or mela fides. 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
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.

Federalism is one of the basic feature of Indian constitution. By virtue of this power the
constitution envisages a demarcation of governmental functions and powers between various
constituent units of the country. Generally in a federation there are two levels of govt. the
existence or authority of each level of the Government has been guaranteed by the constitution.
Indian system is very much influenced to the colonial ruling system of the English for many
reasons. One of the influence of this must be the policy which created the three pillars of the
democracy i.e. executive, legislature and the judiciary. In Indian constitutional pattern a direct
separation of power prevails by which a balance has been maintained between the different
organs of the govt. among these the law making power primarily vests on the legislature.

The doctrine of colorable legislation refers to the question of competency of the legislature while
enacting a provision of law. My project has two different parts, the part one of my work deal
with the doctrine of colorable legislation and part two deals with legislative accountability. It is
worthy to be mention that my whole research work is doctrinal in nature.

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.

In State of Bombay v. FN Balsara4 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.

Need of Doctrine of Pith and Substance:

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise
rigid scheme of distribution of powers. The reason for adoption of this doctrine is that if every
legislation were to be declared invalid on the grounds that it encroaches power, the powers of the
legislature would be severely limited.

According to this doctrine, the legislation as a whole is examined to ascertain its “true nature and
character” in order to determine in what list it falls. If according to its “true nature and character”
the legislation substantially falls within the powers conferred on the legislature which has
enacted it, then it is not deemed to be Invalid “merely because it incidentally trenches or
encroaches on matters which have been assigned to another legislature.

The doctrine of “pith and substance” postulates for its application, that the law in question is
substantially within legislative competence of the particular legislature which has made it but
only incidentally encroaches upon the legislative field of another legislature. The doctrine saves
4
AIR 1951 SC 318
the incidental encroachment, if only the law is in pith and substance within the legislative field of
the particular legislature which has made it.

This doctrine is widely used when deciding whether a state is within its rights to create a statute
that involves a subject mentioned in Union List of the Constitution. The basic idea behind this
principle is that an act or a provision created by the State is valid if the true nature of the act or
the provision is about a subject that falls in the State list.

Land Mark Cases on Doctrine of Pith and Substance:

1. In Union of India v. Shah Goverdhan L. Kabra Teachers' College this Court held that in order
to examine the true character of the enactment, the entire Act, its object and scope is required to
be gone into. The question of invasion into the territory of another legislation is to be determined
not by degree but by substance. The doctrine of pith and substance has to be applied not only in
cases of conflict between the powers of two legislatures but also in any case where the question
arises whether a legislation is covered by a particular legislative field over which the power is
purported to be exercised. In other words, what is of paramount consideration is that the
substance of the legislation should be examined to arrive at a correct analysis or in examining the
validity of law, where two legislations are in conflict or alleged to be repugnant.

2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors. – The court held that in order to
decide whether the impugned Act falls under which entry, one has to ascertain the true nature
and character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the
result of this investigation, not the form alone which the statute may have assumed under the
hand of the draughtsman, that will determine within which of the Legislative Lists the legislation
falls and for this purpose the legislation must be scrutinized in its entirety”.

3. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors. – Pith and Substance
has been beautifully explained in this case:

“This doctrine is applied when the legislative competence of the legislature with regard to a
particular enactment is challenged with reference to the entries in various lists. If there is a
challenge to the legislative competence, the courts will try to ascertain the pith and substance of
such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts
to go into and examine the true character of the enactment, its object, its scope and effect to find
out whether the enactment in question is genuinely referable to a field of the legislation allotted
to the respective legislature under the constitutional scheme.

4. A Constitutional Bench of this Court while discussing the said doctrine in Kartar Singh v.
State of Punjab observed as under:

This doctrine of ‘pith and substance’ is applied when the legislative competence of a legislature
with regard to a particular enactment is challenged with reference to the entries in the various
lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In
such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny
of the Act in question, if found, that the legislation is in substance one on a matter assigned to the
legislature enacting that statute, then that Act as a whole must be held to be valid
notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter
included in the list belonging to the other legislature. To say differently, incidental encroachment
is not altogether forbidden.”

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.

In Keshavan Madhava Menon v. The State of Bombay5, 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
5
1961 SC 288
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.

In AK Gopalan v. State of Madras 6 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

6
AIR 1950 SC 27
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.

The doctrine of severability has been elaborately considered by the Supreme Court in R.M.D.C.
v.Union of India, AIR 1957 S.c. 628, and the following rules regarding the question of
severability has been laid down:

(1) The intention of the legislature is the determining factor in determining whether the valid paIt
of a statute are severable from the invalid parts.

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from the other, then the invalidity of a portion must result in the invalidity of the Act in its
entirety. On the other hand, if they are so distinct and separate that after striking out what is
invalid what remains is itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest had become unenforceable.

(3) Even when the provisions which are valid, are distinct and separate from those which are
invalid if they form part of a single scheme which is intended to be operative as a whole, then
also the invalidity ofa part will result in the failure of the whole.

(4) Likewise when the valid and invalid parts of a Statute are independent and do not form part
of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of legislature, then also it will be
rejected in its entirety.

(5) The severability of the valid and invalid provisions of a Statute does not depend on whether
provisions are enacted in same section or different section, it is not the form but the substance of
the matter that is material and that has to be ascertained on an examination of the Act as a whole
and of the setting of the relevant provisions therein.

(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck down
as void as otherwise it will amount to judicial legislation.
(7) In determining the legislative intent on the question of severability, it will be legitimate to
take into account the history of legislation, its object, the title and preamble of it.

Principle 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. 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. The 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 legislation also.

State of Bombay v. RMDC

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.

In Tata Iron & Steel Company v. Bihar State 7The 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
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.

Principle 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.

7
AIR 1958 SC 482
CONCLUSION
The 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 the
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 to 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 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.
BIBLIOGRAPHY
1. KP Chakravarthy, “Interpretations of Statutes”, 2nd Ed., Allahabad: Central
Law Agency, 2008

2. Prof. T. Bhattacharya, “The Interpretation of Statutes”, 8th Ed., Allahabad:

Central Law Agency, 2012

3. RD Srivastava, “Text Book of Interpretation of Statutes and Legislation”,

5th Ed., Allahabad: Central Law Agency, 2009

4. Vepa P Sarathi, “Interpretation of Statutes”, 5th Ed., Lucknow: Eastern

Book Company, 2010

5. MP Jain, Indian Constitutional Law, Wadwa Nagpur, 5th Ed., 537

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

Butterworths, 2010