School of LAW Name of the faculty member: Ms.

Amanpriya Singh

Course Code: LAW333 Course Title: Interpretation of statutes

Academic Task No: 2 Academic Task Title: ASSIGNMENT
Date of Allotment: 9/10/2021 Date of Submission: 22/11/2021
Student Roll No: A03 Student Reg. No: 11909090
Term: 5 Section: 1903
Max. Marks: 30 Marks Obtained:

Learning Outcomes: (Student to write briefly about learning obtained from the academic
tasks) Learnt various fundamental rights that the prisoners have got during the time of
Covid-19.

Declaration:

I declare that this Assignment is my individual work. I have not copied it from any other students’
work or from any other source except where due acknowledgement is made explicitly in the text,
nor has any part been written for me by any other person.

Evaluation Criterion: Rubrics on different parameters

Student’ Signature:

Evaluator’s Comments (For Instructor’s use only):

General Observations Suggestions for Improvement Best part of assignment

Evaluator’s Signature and Date

 State of Bombay and Others v. F.N.Balsara in the light of
doctrine of severability

Citation: AIR1951 SC318, 1951(53)BOML982, (1951)IIMLJ141, [1951]2SCR682

Appellants: State of Bombay and Others

Respondent: Fram Nuservanjee Balsara (F.N.Balsara)

Bench: Saiyid, Fazl Ali, M. Patanjali, Sastri, B.K.Mukherjea, Sudhi Ranjan Das and Vivian
Bose, JJ.

Date of Judgement: 25 May, 1951

Introduction

The case highlights to the provisions of constitutional law. The case applied the doctrine of
pith and substance which helps to concern the true character and nature of legislation. The
petitioner pleaded the Bombay Prohibition Act was violative of Article 19(1)(g) of the Indian
Constitution. Thus, it must be declared void.

This case is significant in the field of constitution law because it cleared certain grey areas
regarding the doctrine of pith and substance. The 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 different legislative lists, because a law dealing
with a subject in one list within the competence of the legislature concerned is also touching
on a subject in another list not within the competence of that legislature.” [1] In such a case,
what has to be ascertained is the pith and substance of the enactment—the true character and
nature of the legislation.

Principle:
 1. The presumption always stays in the favor of constitutionality of
enactment. It is because it is assumed that the legislature understands the
needs of its people.
2. In certain cases, there is no classification at all and no difference peculiar
to any individual or class, still the law hits only particular individuals or
class.
3. The principle of equality does not mean that every law must have universal
application for all persons. Sometimes, the needs of different class people
require different treatment.
4. The principle does not take away from the State the power of classifying
persons for legitimate purposes.
5. Every classification is in some degree likely to produce some inequality,
and mere production of inequality is not enough.
6. While reasonable classification is permissible, such classification must be
based upon some real and substantial distinction bearing a reasonable and
just relation

The facts of the case:

1. The petitioner (Balsara), showing himself as the citizen of India , presented

before the petition in the Bombay High Court , requesting for passing an order
forbidding the state and prohibition commission from enforcing the provision
of the Bombay Prohibition Act , 1949 against him and also from passing an
order to the effect.

2. To allow him to exercise his right to possess, consume and use whisky,
brandy, wine and beer, medicated wine, Eau-de-cologne etc.

3. And to import and export across the custom limits and to purchase, possess,
consume and use any stock of foreign liquor etc.
 4. That the government may not obstruct under the prohibition act in the use of
personal rights and the government takes no steps or proceedings against him,
penal or otherwise.

5. The petitioner also prayed for a similar order under sec 45 of specific relief
act. So, High Court, agreeing with some of the petition contention and
disagreeing with other , declared some of the provisions to be invalid and rest
to be valid .

6. The court accepted the contention of the petitioner that the definition of
liquors was to wide and beyond the power vested in the legislature to legislate
with regard to intoxicating liquors under item 31 of list II of the constitution

7. It also held the following sections to be invalid :- Sections 23 (a) and 24 (1) (a)
so far as they refer to “commending”; section 23 (b); 24 (1) (b) so far as it
refers to “evasion”; section 39; section 52; section 53 in part; section 136 (1);
and section 139 (c).

8. Both the State of Bombay and petitioner, being dissatisfied with the judgment
of the HC, have appealed to this court after obtaining a certificate from HC
under Art.132 (1) of the constitution of India.

Plead of Petitioner:
 That Balsara (petitioner) should be given assent to use his right to keep whisky,
brandy, wine mixed with medicine etc, and to use them and also to import and export
them within the custom limit of that area.

 That the government may not obstruct under prohibition act in the use of his personal
rights and may not take any action against him for the right to keep whisky, brandy,
wine with medicine etc also they can export or import.
Issues framed:

 Whether there are sufficient grounds for declaring the whole Act to be invalid?

 Whether the judgement of Bombay High Court be upheld with regard to the specific
provisions of the Act?

JUDGMENT

High court
The high court stated that, agreeing with some of the petitioner’s allegations and not agreeing
with some others, declared some provisions of the act as legal while some other are being
illegal.
Aggrieved with the decision of HC both state govt. as well as Balsara with the permission of
HC, filed appeals before the SC against that decision that was stated by high court.

Supreme Court

It was observed by the SC that the state legislative has the power to completely prohibit the
keeping, selling and using intoxication wine under the entry 31 in the list (ii) defined . There
is, therefore, no dispute b/w the jurisdiction of the state and the state . The exemption allowed
to the soldiers of the army , the messes of the land forces and water ships can therefore, not
be declared illegal under sec.37

The SC, therefore, declared as illegal those provisions of the Bombay prohibition ac which
were regarding keeping alcohol , wine and toiletry goods selling and buying the and also
using them etc. and the rest of the provisions were declared as legal it was declared then an
act by declaring certain provisions there of an illegal, cannot be wholly declared as illegal.
The appeal no. 182 was sufficiently admitted while appeal no. 183 was rejected.

Relevant law:

Selzman v. United State

Section 4, National Prohibition Act, which forbade the sale of denatured alcohol for beverage
purposes or under circumstances from which the seller may reasonably infer the intention of
the purchaser to use it as a beverage was challenged. It was challenged on the ground that the
18th Amendment does not give to the Congress authority to prevent or regulate the sale of
denatured alcohol which is not a beverage although intoxicating

Purity Extract & Co. v. Lynch

In this case the plaintiffs challenged the validity of the statute inter alia on the ground that it
deprived the plaintiffs of their liberty and property without due process of law and thus
violated the 14th Amendment. Thus, it was agreed that the United States Government does
not treat ‘Poinsettia’ as within the class of intoxicating liquors, and does not require anything
to be done with reference to its sale.

Ruppert v. Gaffey

An action was brought by a brewer manufacturing beer containing more than half par cent to
one per cent alcohol by volume contending inter alia that the war time prohibition Act
confined the prohibition to intoxicating drinks and the Volstead Act which purported to
extend the prohibition to non-intoxicating beverages was ultra vires of the Congress.

 Prohibition of child marriage act, 2006.

 The bearer laws act, 1941

 Delhi laws act, 1915

 Article 19 of the constitution of India, 1949

Reasoning:
When two or more statutes are repugnant, the court will try to construe the provisions in such
a manner , if possible, as give effect to both by harmonizing them with each other. The court
may do so by regarding two or more apparent conflicting provisions as dealing with the
separate situations or by holding that one provisions merely provisions for an exception of the
general rule contained in each other. The basis of the principle of harmonious construction.

Probably is that the legislature must not have to contradict itself. When the legislature gives
something by one hand it does not take away the same by the other. One provision of an act
does not make another provision of the same act useless. The legislature cannot presumed to
contradict itself by enacting apparently two conflicting provisions in the same act.

Legal Provisions :
 19 (1) (g) of Indian Constitution: To practice any profession, or to carry on any
occupation, trade or business
 Entry 31, List II of the Government of India Act, 1935: Intoxicating liquors, that is to
say, the production, manufacture, possession, transport, purchase, and sale of
intoxicating liquors.
 Entry 19, List I of the Government of India Act, 1935: Import and export of liquors
across a customs frontier.

Analysis:
 whether there are sufficient grounds for declaring the whole Bombay Prohibition Act
to be invalid.
 To what extent the judgment of the High Court can be upheld concerning the specific
provisions of the Act which have been declared by it to be void.
 The state legislature has the power to prohibit the keeping, selling and using
intoxicating wine. Hence the dispute between the jurisdiction of the state and the
centre does not arise.
 The Supreme court held that any act passed by the state legislature, which prohibits or
controls the export of the things provided in Entry 27 and 29 of List II, is outside the
boundaries of the state. Then the act will be termed illegal.
 The Bombay Prohibition Act has been passed under Entry 31 of List II. Hence,
Section 297(1)(a) does not apply.
 Under section 37, exemption provided to Army, the messes of the Land Forces and
Water Ships cannot be declared illegal.
  The court held various provisions illegal, which were regarding keeping alcohol-
mixed medicines and toilet goods etc.
 The Supreme court held that, by declaring few provisions of an act illegal, an act,
cannot be wholly declared illegal.

This landmark judgment completely observed Doctrine of severability:

In determining whether the valid parts of a statute are separable from the invalid parts
thereof, it is the intention of the legislature that is the determining factor. The test to be
applied is whether the legislature would have enacted the valid part if it had known that the
rest of the statute was invalid.

If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from one another, 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 in itself a complete code independent of the rest, then it will be
upheld notwithstanding that the rest has become unenforceable.

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

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 if was when it emerged out of the legislature, then also it
will be rejected in its entirety

The separability of the valid and invalid provisions of a statute does not depend on whether
the law is enacted in the same section of different sections; 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.

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.
In determining the legislative intent on the question of separability, it will be legitimate to
take into account the history of legislation, its object, the title and preamble to it.

Conclusion:

This decision is significant in constitutional law because it clarified several ambiguities

around the doctrine of pith and substance but, Sythentics and Chemicals Ltd. & Ors Vs. State
of U.P. & Ors overruled the validity of the present case.
It is reasonable to conclude that, in medical preparations, complete prohibition of alcohol is
attainable. Unless used for human consumption, such a trade cannot be called hazardous.
However, because the human consumption of alcohol is considered a luxury, the State
Legislature has the authority to collect taxes on their possession. As a result, an Act enacted
by the State Government on a subject over which it has constitutional authority is legitimate.