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(..7..)
Principles of Constitutional Interpretation
Q.1. Write a comprehensive note of (a) Harmonious construction and (b)
Residuary powers.
Q.2. Write notes on various principles of constitutional interpretation.
Q3. What is the Rule of harmonious construction? Are all statutes including the
Constitution read harmoniously?
Q.4. Explain briefly various principles of constitutional interpretation
Q.5. Explain the following principles of constitutional interpretation (a) Pith and
Substance, (b) colourable legislation.
I. Introduction: -
The constitution is the supreme and fundamental law of the country. Being written
in the form of a statute, the general principles of statutory interpretation also apply to the
interpretation of the Constitution. As is the case of other statutes, the court tries to find
out the intention of the framers of the constitution from the words used by them.
The constitution itself endorses the general principles of interpretation through
Art. 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
Allahabad High Court ruled that “not only the general definitions given in the General
Clauses Act but also the general rules of construction given therein are applicable to the
1 AIR 1951 All 703
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constitution”.
The Constitution is a special statute. Therefore, every provision of the
Constitution is constitutional, and no part of it can be held unconstitutional. It casts an
important duty on the interpreters of the Constitution to interpret its provisions in such a
way that the spirit of the Constitution is not maligned. The Supreme Court has evolved
and borrowed several rules of constitutional interpretations specifically while
interpretating questions relating to (i) Union List, State List and Concurrent List, (ii)
Fundamental rights, and Directive Principles of State policies.
II. Principles of constitutional interpretation in conflicts between Lists:-
As we know, the legislative powers are divided between the Union and States
through three lists of subjects, i.e., Union, State, and Concurrent; when the question
arises of interpreting these lists, courts resort to the following principles.
1. Subject-matter-wise jurisdiction:-
Art. 246 of the Indian Constitution lays down the subject-matter-wise division of
powers between the Union and States. Art. 247 provides for Schedule VII in
Constitution; there are three Lists, viz.-the Union List, the State List, and the Concurrent
List.
List-I- The Union List: -
List-I- The Union List originally consisted of 97 subjects, presently, it has 100
subject matters or items. The subjects mentioned in the Union List are of national
importance and require the Union Parliament to pass laws on them. Subject matters
contained in it are defence, foreign affairs, banking, currency and coins, railway, postage,
Union taxation, etc. The Parliament has exclusive power to make laws on any of the
subjects mentioned in the Union list.
List-II- The State List: -
The State list originally consisted of 66 subjects; presently, it has 61
subjects. These subjects are of local importance and therefore require the State to make
laws on them. These subjects are public health and sanitation, agriculture, forest,
fisheries, education, State-taxation, maintaining law and order, etc. The State has
exclusive power to make laws on any subjects mentioned in the State List.
List III- Concurrent List: -
It originally consisted of 47 subjects; presently, it has 52 subjects. Both
Centre and the State can make laws on the subjects mentioned in the concurrent list. But
in case of a conflict between laws passed by the Center and the State, on the concurrent
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list subject, the law passed by the Center shall prevail. (Art. 254 (1)).
The Residuary power (Art. 248): -
The Parliament has exclusive power to pass laws with respect to any new matter
not mentioned in either of these lists (Art. 248 and Entry 97 of the Union list). The power
to make laws on such new subjects is called residuary power. So subjects like cybercrime
(i.e., computer), terrorism, and Space Technology, a new one ((i.e., not mentioned in
either of these lists) empowers Parliament to make laws on it.
Principles of Interpretation of these Lists: -
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Though legislative powers are divided between the Centre and the States, it
is not a scientific division. Questions usually arise as to whether a particular subject falls
in the sphere of the Union or the State legislature's competence for the purpose of making
law. It is the duty of the Supreme Court to solve this problem. Therefore, to solve the
above problem Supreme Court has evolved the following rules. -
1.
Predominance of the Union list: -
As per Art. 254, the Union list predominates the State and concurrent list. The
concurrent list predominates the State list. Thus, it establishes the predominance of the
Union list.
2.
Each entry is to be interpreted broadly:-
Subject to the overriding predominance of the Union list, an entry in the Concurrent
List should be interpreted broadly. The ‘widest possible’ and “most liberal”
interpretations should be given to the language of each entry.
Bombay High Court has held that the entries given in lists of Sch-VII are legislative
heads. Therefore, these entries should be liberally and widely interpreted. Not only main
matters but any incidental or ancillary matters are also to be included within the field
of entry.
3.
The Doctrine of Pith and Substance,:-
If the law passed by one Legislature encroaches upon the field assigned to the
other, the court will apply the doctrine of pith and substance to determine whether the
legislature concerned is competent to make that particular law. If the pith and substance
(i.e., the true object of the legislation) relate to the matter within the competence of the
legislature which enacted the controversial law, such law is to be treated as valid and
within the competence of the legislature that made it, even though it might incidentally
encroach upon other legislature’s competence.
In order to ascertain the true character of the legislature, the court should regard
2 (AIR 2006 (NOC) 901 (Bom)).
3 Sharat Hydro Power Corpn. Ltd. v. State of Assam. (2004 AIR SCW 2308 (A)).
Supreme Court Observed- that, in a federal Constitution, in which there is a division of legislative
powers between the Central and the Provincial Legislatures controversies often arise as to whether one
or the other legislature is not exceeding its legislative power and encroaching on the other’s
constitutional legislative power. To examine whether legislation has encroached in the field of other
legislatures, in fact, or in substance, or is incidental, keeping in view the true nature of the enactment,
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Facts- The Bombay Prohibition Act, which prohibited the sale and possession of liquor
in the State, was challenged on the ground that it incidentally encroached upon “the
import and export of liquor across the customs frontier,” – which is the Central subject. It
was contended that the prohibition on the purchase, use, possession, and sale of liquor
would affect the import of liquor, which is a Central subject.
Held:- The Act is valid because the pith and substance of the Act fall under the State List
and not under the Union List, even though the Act incidentally has encroached upon the
Union List.
4. The Principle of Incidental or Ancillary Powers:-
It is related to the principle that each entry is to be interpreted broadly. This
principle is an addition to the doctrine of the Pith and Substance principle. According to
it the power to legislate on a subject also includes the 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 it. In
such cases, it has to be seen whether the matter referred to in the Act is essential to give
effect to the main subject of the Act. For example, the power to impose tax would also
include the power to search and seize to prevent the evasion of that tax. Similarly, the
power to legislate on the subject of Land reforms also includes the power to legislate on a
mortgage of the land. However, if a subject is explicitly mentioned in either of the lists, it
cannot be said to be an ancillary matter. For example, the power to make laws on the
subject of defence is mentioned in the Union list hence it cannot be claimed as ancillary
to the power relating to any other entry mentioned in the State list.
The Supreme Court observed that the power to legislate on a topic includes the power to
legislate on an ancillary matter which can be said to be reasonably included in the topic.
the Courts have evolved the doctrine of “pith and substance” to determine whether it is legislation with
respect to matters in one list or the other. Where the question for determination is whether a particular
law relates to a particular subject mentioned in one list or the other, the Courts look into the substance
of the en-actment. Thus, if the substance of enact-ment falls within Union List then the Inci-dental
encroachment by the enactment on the State List would not make it invalid. This principle came to be
established by the Privy Council, for applying the principle of “pith and substance’ regard is to be had (1)
to the enactment as a whole, (ii) to its main objects and (iii) to the scope and effect of its provisions.
4 AIR. 1951 SC 318.
5 1959, AIR 544
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principle is that the grant of power includes everything necessary to exercise that power.
However, this does not mean that the scope of the power can be extended to any
unreasonable extent.
5.
The Doctrine of colourable legislation: -
The doctrine of ‘colourable legislation’ is based on the maxim ‘what cannot be
done directly, cannot also be done indirectly’. The doctrine becomes applicable when a
legislature seeks to do something indirectly that it cannot do directly. The doctrine thus
refers to the question of the legislature's competence to enact a particular law. In other
words, although, apparently, a legislature in passing a statute purports to act within the
limits of its power yet, in substance and in reality, it has transgressed these powers by
taking resort to a mere pretence or disguise.
It 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, of 1950, was held void on the
ground that, though apparently, it purported to lay down a 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.
Facts- The Kerla State imposed a tax under the Travancore Cochin Land Tax Act, of
1955. The tax was so high that it was many times the annual income that the person was
earning from the land.
The Supreme Court held that the Act was violative of Articles 14 and 19(1)(f) in view
of the fact that in the disguise of tax, person's properties were being confiscated.
6. Doctrine of Occupied filed and Repugnancy:-
As per Art. 254 (1) if a law enacted by the State Legislature is repugnant to the
central law (i) which the Parliament is competent to enact, or (ii) the law passed on the
subject matter mentioned in the Concurrent List, then the law made by the Parliament
shall prevail over that of the State law even though the law passed by the parliament is
earlier or subsequent to the State law, the law made by the Legislature of the State shall,
to the extent of the repugnancy, be void.
6 AIR 1962 SC 594
7 AIR 1952 SC 252
8 AIR 1961 SC 552
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This clause enunciates two doctrines i.e. the doctrine of occupied field. Once the
subject matter/field is occupied by the Parliament the state law becomes void. The
Parliament has the upper hand over the state legislature in making law on any of the
concurrent list subjects. Also, as per clause (2), the state law may also prevail over
Parliament’s law to a limited extent. If the law of the state is earlier one and has got
assent from President. However, such state law or its provision becomes void if
Parliament makes the repugnant law or provision on the same subject matter.
It also mentions the doctrine of repugnancy. According to the subsequent part of
clause (1) the law made by the Legislature of the State shall, to the extent of the
repugnancy, be void. It means if any provision of the state law is repugnant to the
provision of the Parliament’s law, the repugnant provisions of State law shall be void,
keeping the rest of the non-repugnant provisions valid.
Facts:- the Centre enacted the Chit Funds Act, 1982 which was not notified in the State
of Kerala, While the State of Kerala had earlier enacted the Kerala Chitties Act, 1975
related to the same subject matter of chit funds which was a concurrent list subject. The
Act passed by the State of Kerala was in operation in the state.
The Constitution Bench of the Supreme Court held that even though not notified, the
Central law shall prevail as per Art. 254.
The Supreme Court observed that “to the general rule laid down in clause (1) of Art. 254,
clause (2) engrafts an exception viz. that if the President assents to a State law which has
been reserved for his consideration, it will prevail notwithstanding its repugnancy to an
earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the
two and no more. In short, the result of obtaining the assent of the President to a State
Act which is inconsistent with a previous Union law relating to a concurrent subject
Central Act in their applicability to that State only.
The predominance of the State law may however be taken away if Parliament legislates
Parliament to repeal or amend a repugnant State law, either directly, or by itself enacting
a law repugnant to the State law with respect to the `same matter'. Even though the
subsequent law made by Parliament does not expressly repeal the State law, even then,
9 CIVIL APPEAL NO. 6660 OF 2005
10 CIVIL APPEAL NO. 4772 OF 1998
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the State law will become void as soon as the subsequent law of Parliament creating
repugnancy is made. State law would be repugnant to the Union law when there is a
direct conflict between the two laws. Such repugnancy may also arise where both laws
operate in the same field and the two cannot possibly stand together”.
The Bombay High Court declared S. 44-B of the Maharashtra Agricultural Lands
(Ceiling on Holding) Act, 1961 (the Ceiling Act) void, which prohibits the appearance of
a legal practitioner on behalf of any party to the proceedings before various authorities
practice law.
III. Principles of interpretation in a conflict between Fundamental Rights
and Directive Principles:-
When the conflict between fundamental rights and Directive Principles
occurs, the question arises as to which one will prevail over the other. The following
cases provide their answer.
1.
Fundamental rights will prevail (primary view):-
Supreme Court held- that in case of any conflict between fundamental rights and
Directive Principles of State Policy, the fundamental rights would prevail because
2.
Directive Principles will prevail (Second view):-
Supreme Court held- that the Parliament is empowered to amend Fundamental rights for
giving effect to Directive Principles of State Policy. This is because directive Principles
prescribe the goals to be achieved, and the fundamental rights lay down how that goal is
11 1990 (3) BomCR 274
12 AIR 1951 SC 228
13 In Kameshwar Singh v. State of Bihar. (AIR 1962 SC 1166).
In this case, the Zamindari Abolition Act was Held to be void on the ground that it violated fundamental
rights guaranteed under Part III of the Constitution.
14 AIR 1973 SC 1461.
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3.
The principle of harmonious construction: -
Nowadays, the rule followed by courts to interpret the conflict between
fundamental rights and Directive Principles is of harmonious construction. According to
it the provisions of the Constitution should be harmoniously interpreted; when there are
two provisions in a statute, which are in apparent conflict with each other, they should be
interpreted such that effect can be given to both and that construction that renders either
of them inoperative and useless should not be adopted except in the last resort.
Supreme Court held- that though the Directive Principles cannot override the
fundamental rights, nevertheless, in determining the scope and ambit of the fundamental
rights, the court may not entirely ignore Directive Principles and should attempt to give
effect to both as much as possible.
The Supreme Court held that while the state should implement the directive principles,
it should be done in such a way as not to violate Fundamental rights.
References-
15 Mohd. Hanif Quareshi v. State of Bihar, (AIR 1958 SC 731).
Facts- The petitioner claimed that the sacrifice of cows on the occasion of Bakri-id was an essential part
of his religion and therefore the State law forbidding the slaughter of cows was violative of his right to
practice religion.
Held- The court rejected this argument and Held that the sacrifice of cows on the Bakri- id day was not
an essential part of Mohammedan religion and hence could be prohibited by the state under cl. (2) (a)
of Art. 25.
16 AIR 1957 SC 956.
17 1958 AIR 731