Important Doctrines of Constitutional Interpretation

DOCTRINE OF SEVERABILITY

• Meaning: Also known as the doctrine of separability. It's used by the Supreme Court to determine the validity of laws when parts are declared unconstitutional.

  • If the unconstitutional part can be separated, only that part is void.
  • If separation is impossible, the entire law is void.

• Basis: Article 13 of the Constitution

  • Article 13(1): Pre-constitution laws are void to the extent they are inconsistent with Fundamental Rights.
  • Article 13(2): The state cannot make laws that abridge Fundamental Rights, and any such law is void to the extent of the contravention.

• Propositions (Rules) by Supreme Court:

  1. Legislative intent is the key factor in determining separability. Would the legislature have enacted the valid part alone?
  2. If valid and invalid provisions are inextricably mixed, the entire Act is invalid. However, if they are distinct and after removing the invalid portion, a complete and independent code remains, it is upheld.
  3. If valid and invalid provisions are part of a single scheme, invalidity of one part affects the whole.
  4. If valid and invalid parts are independent but the remaining valid part is substantially different after omitting the invalid portion, the entire law fails.
  5. Separability doesn't depend on whether provisions are in the same or different sections; substance matters.
  6. If the remaining statute requires alterations after removing the invalid portion, the entire statute is void (judicial legislation is not permitted).
  7. Legislative intent is determined by considering the history, object, title, and preamble of the legislation.

• Important Cases (Table 91.1):

  Sl. No.	Case (Year)	Supreme Court Judgement
  1.	A.K. Gopalan vs. State of Madras (1950)	Struck down Section 14 of the Preventive Detention Act (1950) for violating Article 22. The rest of the Act was valid.
  2.	State of Bombay vs. F.N. Balsara (1951)	Declared eight sections of the Bombay Prohibition Act (1949) as ultra vires due to infringement of fundamental rights, but the remaining provisions were valid.
  3.	R.M.D. Chamarbaugwalla vs. Union of India (1957)	Provisions of the Prize Competitions Act (1955) were severable; provisions related to competitions involving skill were struck down, while those related to gambling were valid. Parliament can restrict prize competitions only of a gambling nature but not those involving skill, according to Article 19(1)(g).
  4.	Minerva Mills vs Union of India (1980)	Struck down sections 4 and 55 of the 42nd Amendment Act (1976) for being beyond the amending power of the Parliament. Declared the rest of the Act as valid.
  5.	Kihoto Hollohan vs. Zachillhu (1992)	Declared paragraph 7 of the Tenth Schedule (inserted by the 52nd Amendment Act, 1985) as unconstitutional for violating Article 368(2). It upheld the rest of the Tenth Schedule. Paragraph 7 requires ratification under the proviso to Article 368(2) for excluding the jurisdiction of High Courts under Article 226 and Supreme Court under Article 136, which was not done.

DOCTRINE OF WAIVER

• Meaning: Voluntarily giving up a known right or privilege.

  • Defined as the intentional relinquishment of a right, involving conscious abandonment of an existing legal right.

• Position in India: Not applicable to Fundamental Rights. A citizen cannot waive their Fundamental Rights in India.

• Observations by Supreme Court:

  1. Fundamental Rights cannot be waived; they are mandatory for the state.
  2. The American doctrine of waiver doesn't apply.
  3. Fundamental Rights are a matter of public policy, so waiver is inapplicable.
  4. Articles 15(1), 20, and 21 prevent citizens from waiving protection against discrimination or conviction.

• Important Cases (Table 91.2):

  Sl. No.	Case (Year)	Supreme Court Judgement
  1.	Behram Khurshid Pesikaka vs. State of Bombay (1954)	Held that in a criminal prosecution, an accused person cannot waive their Fundamental Rights to get convicted.
  2.	Basheshar Nath vs. Commissioner of Income Tax (1958)	Rejected the contention that the petitioner, by voluntarily entering into an agreement to pay the tax, had waived his fundamental right guaranteed under Article 14. It upheld the contention of the petitioner holding that the fundamental rights could not be waived.
  3.	Olga Tellis vs. Bombay Municipal Corporation (1985)	Held that a person cannot waive any of the fundamental rights conferred upon him by any of his act and there cannot be any estoppel against the constitution. Constitution seeks to benefit not only the individual but also to secure the larger interests of the community.
  4.	Nar Singh Pal vs. Union of India (2000)	Reiterated that the fundamental rights under the constitution cannot be bartered away. Asserted that the fundamental rights cannot be compromised, nor can there be any estoppel against the exercise of fundamental rights.

DOCTRINE OF ECLIPSE

• Meaning: A pre-constitutional law inconsistent with a Fundamental Right is not void from the start, but becomes inoperative from the Constitution's commencement. It's overshadowed ("eclipsed") by the Fundamental Right.
  • The law exists for:
    1. Past transactions.
    2. Enforcement of prior rights and liabilities.
    3. Determination of rights for non-citizens.
  • It doesn't become void "in toto".
  • If the "shadow" (inconsistency) is removed by constitutional amendment, the law becomes enforceable again.
• Formulation: By the Supreme Court in the Bhikaji case (1955). Section 43 of the Motor Vehicles Act (1939) was eclipsed but revived after the 1st Amendment Act (1951).
• Application to Post-Constitutional Laws:
  • In Deep Chand case (1959) the doctrine of eclipse applies only to pre-Constitution laws. A post-Constitution law violating a Fundamental Right is a nullity from inception.
  • In Ambica Mills case (1974), the Supreme Court reversed the earlier stand and applied the doctrine of eclipse even to a post-Constitution law. Post-Constitution law violating Fundamental Right is not a nullity or void in all cases or for all purposes.
• Important Cases (Selection):
  • Bhikaji Narain Dhakras vs. State of M.P. (1955)
  • Deep Chand vs. State of U.P. (1959)
  • Mahendra Lal Jain vs. State of U.P. (1962)
  • State of Gujarat vs. Shri Ambica Mills Ltd. (1974)

DOCTRINE OF TERRITORIAL NEXUS

• Meaning: Relates to Article 245, concerning the extent of laws by Parliament and State Legislatures. A state law having extra-territorial operation is held valid by applying the doctrine of territorial nexus.
  1. Parliament can make laws for the whole/any part of India and can legislate extra-territorially.
  2. A State Legislature can make laws for the whole/any part of the state but cannot legislate extra-territorially.
• Exception: Extra-territorial state legislation is valid if there's a sufficient nexus between the state and the object. The object need not be physically located in the state.
• Formulation:
  • In the pre-Constitution period the Federal Court applied the doctrine in Raleigh case (1944) and Wadia case (1949) while the Privy Council applied it in Wallace case (1948).
  • In the post-Constitution period, the Supreme Court applied the doctrine in R.M.D. Chamarbaugwalla case (1957). If there is a sufficient territorial nexus between the person sought to be taxed and the state seeking to tax him, the taxing law is upheld.
• Elements for Sufficient Territorial Nexus:
  1. Nexus must be real, not illusory.
  2. The liability must be relevant to that nexus.
• Application to Non-Tax Laws:
  • The doctrine is applicable not only to tax laws but also to other kinds of laws.
  • In Charusila Dasi case (1959), a State Legislature can make laws for charitable/religious trusts within the state, even if part of the property is in another state.
• Exceptions:
  1. A state government can approve a scheme for inter-state routes for the State Transport Undertaking.
  2. A state can carry on trade and business under Article 298 without being restricted to its boundaries.
• Cases:
  • Governor-General vs. Raleigh Investment company (1944).
  • A.H. Wadia vs. Commissioner of Income-Tax (1949).
  • Wallace Brothers and Company Limited vs. Commissioner of Income-Tax (1948).
  • State of Bombay vs. R.M.D. Chamarbaugwalla (1957).
  • Tata Iron and Steel Company vs. State of Bihar (1958).
  • State of A.P. vs. National Thermal Power Corporation Limited (2002).
  • State of Bihar vs. Charusila Dasi (1959).
  • Shrikant Bhalchandra Karulkar vs. State of Gujarat (1994).
  • Khazan Singh vs. State of U.P. (1973).

DOCTRINE OF PITH AND SUBSTANCE

• Meaning: Determines legislative competence when laws appear to encroach on another legislature's domain (Article 246). The law must be looked into as an organic whole.

  • If the "pith and substance" (true nature and character) of a law relates to a subject within the enacting legislature's domain, it's valid, even with incidental encroachment.

• Rationale: In a federal constitution, some overlapping of legislative fields is inevitable.

• Principles: By Privy Council in Prafulla Kumar case (1947):

  1. Clear demarcation isn't always possible; the effect and true nature of the enactment must be considered.
  2. Extent of invasion into another list is important but not decisive.
  3. When lists conflict: List I (Union) > List III (Concurrent) > List II (State).

• Cases (Table 91.3):

  Sl. No.	Case (Year)	Supreme Court Judgement
  1.	State of Bombay vs. F.N. Balsara (1951)	Upheld the validity of the Bombay Prohibition Act, 1950, even though it encroached on a Union List matter.
  2.	D.N. Banerji vs. P.R. Mukherjee (1952)	Upheld the validity of the Industrial Disputes Act (Parliament), despite applying to municipalities (State subject).
  3.	State of Rajasthan vs. G. Chawla (1958)	Upheld the validity of the Rajasthan Act restricting sound amplifiers, even though it touched on broadcasting (Union subject).
  4.	State of Gujarat vs. Shantilal Mangaldas (1969)	Held that the doctrine of pith and substance is applicable in determining whether an Act is within the competence of the legislature; it is wholly irrelevant in determining whether the Act infringes any fundamental right.
  5.	M. Ismail Faruqui vs. Union of India (1994)	It upheld the validity of the Acquisition of Certain Area at Ayodhya Act, 1993 made by the Parliament. It held that the pith and substance of the Act was 'acquisition of property' and not related to 'public order' and hence, it fell within the ambit of the Concurrent List.
  6.	Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra (2010)	It upheld the validity of the Maharashtra Control of Organised Crime Act, 1999. The Act was challenged on the ground that it encroached upon the subject enumerated in the Union List.

DOCTRINE OF COLOURABLE LEGISLATION

• Meaning: A legislature makes a law that appears to be within its competence but in effect is beyond it. The law is then void. The colour given to it by the legislature doesn't save it.

  • Based on the maxim: "You cannot do indirectly, what you cannot do directly."

• Propositions by Supreme Court:

  1. Questions arise on whether a legislature has transgressed its limits. Transgression can be patent or disguised.
  2. A legislature appears to act within its powers, but in substance, transgresses them.
  3. Substance is material, not form.
  4. Constitutional prohibitions cannot be violated indirectly. The enquiry is the true nature and character of legislation.
  5. The doctrine does not involve bona fides or mala fides but the competency of the legislature.
  6. Courts must examine not just the language, but also the purpose, effect, and operation of the statute.

• Doctrine of Fraud on the Constitution: Synonymous with colourable legislation.

  • A piece of legislation ostensibly under one power but in reality is not within the content of that power.

• Doctrine of Fraud on Legislative Power: Distinct from fraud on the constitution. The legislature has power, but does not exercise it as intended.

  1. Fraud on legislative power: The legislature has power, but pretends to exercise it.
  2. Fraud on the Constitution: A constitutional prohibition exists, yet the legislature enacts a law violating it.

• Cases (Table 91.4):

  Sl. No.	Case (Year)	Supreme Court Judgement
  1.	State of Bihar vs. Kameshwar Singh (1952)	Invalidated the Bihar Land Reforms Act, 1950. The compensation provision was a pretence.
  2.	K.C. Gajupati Narayan Deo vs. State of Orissa (1953)	Upheld the Orissa Agricultural Income tax (Amendment) Act, 1950. It was not colourable.
  3.	K.T. Moopil Nair vs. State of Kerala (1960)	Declared the Travancore Cochin Land Tax Act, 1955 as invalid. The Act violated Articles 14 and 19(1)(f) and its provisions were confiscatory in nature.
  4.	M.R. Balaji vs. State of Mysore (1962)	Declared the State order reserving 68 per cent of seats in educational institutions to the backward class students as void. It held that the executive order violated Article 15(4) and hence, was a fraud on the Constitution.

DOCTRINE OF IMPLIED POWERS

• Meaning: "Whoever grants a thing is deemed to also grant that without which the grant itself would be of no effect." A political power that is not enumerated but exists because it is needed to carry out an express power.

  • If a Legislature enables something, it gives power to do everything indispensable to carry out the purposes.

• Scope:

  • Entries in legislative lists are not narrowly read; general words extend to all incidental/ancillary matters.
  • Power to levy tax includes checking tax evasion.
  • Collection of rent includes remission of rent.
  • Cannot be extended unreasonably.
  • Cannot extend to subjects explicitly mentioned in another list.
  • Cannot be used colourably or fraudulently.

• Application:

  • High Court judge has implied power to revoke resignation (Gopal Chandra Misra).
  • Supreme Court has inherent power to reconsider its judgments (Rupa Ashok Hurra).
  • Parliament has implied power to expel members for contempt (Raja Ram Pal).
  • A State Governor grants the implied power to lay down the procedures for such appointments (Salil Sabhlok).

• Cases (Table 91.5):

  Sl. No.	Case (Year)	Supreme Court Judgement
  1.	Chaturbhuj vs. Union of India (1959)	Power to impose tax includes raising revenue by imposing a license fee.
  2.	Rai Ramkrishna vs. State of Bihar (1963)	Power to enact laws on a subject includes making valid retrospective laws.
  3.	Pathumma vs. State of Kerala (1978)	Power to enact laws regarding money-lending includes power to enact a law relating to debt of agriculturists already paid by sale of property in execution of the decree.
  4.	State of Haryana vs. Sant Lal (1993)	Power to levy sales tax cannot include merely transporters of goods within that law.
  5.	Godfrey Phillips India Limited vs. State of U.P. (2005)	Power to impose tax includes all events concerning that tax, unless an event is included in another list.

DOCTRINE OF PRECEDENT

• Meaning: Lower courts are bound by higher court decisions (stare decisis).
  • The doctrine of stare decisis is expressed in the maxim "stare decisis et non quieta movere”, which means "to stand by decisions and not to disturb what is settled."
• Basis: Article 141 of the Constitution: Law declared by the Supreme Court is binding on all courts in India.
  • Rejection to follow the decision and directions of the Supreme Court is a nullity.
• Rationale: Hierarchical system requires lower tiers to accept decisions of higher tiers.
• Cases:
  • Director of Settlements, A.P. vs. M.R. Apparao (2002).
  • Suganthi Suresh Kumar vs. Jagdeeshan (2002).
  • Krishena Kumar vs. Union of India (1990).
  • Assistant Collector of Central Excise vs. Dunlop India Limited (1984).
  • Government of Andhra Pradesh vs. A.P. Jaiswal (2000).
  • Union of India vs. Raghubir Singh (1989).
  • Hari Singh vs. State of Haryana (1993).
  • Dwarikesh Sugar Industries Limited vs. Prem Heavy Engineering Works Limited (1997).
  • Ganga Sugar Corporation vs. State of U.P. (1979).

DOCTRINE OF OCCUPIED FIELD

• Meaning: When Parliament legislates on a subject, a State Legislature cannot make a law on that field.
  • Relevant only for Concurrent List matters.
  • Originates from Article 254, dealing with inconsistency/repugnancy between parliamentary and state laws.
• Doctrine of Repugnancy (Article 254): Parliamentary law prevails, state law is void to the extent of repugnancy.
• Tests of Repugnancy:
  1. Direct conflict between provisions.
  2. Parliament intended to create an exhaustive code.
  3. Parliament and State laws occupy the same field.
• Cases:
  • Hindustan Lever vs. State of Maharashtra (2003).
  • State of Rajasthan vs. Vatan Medical and General Store (2001).
  • Deep Chand vs. State of U.P. (1959).
  • M. Karunanidhi vs. Union of India (1979).

DOCTRINE OF PROSPECTIVE OVERRULING

• Meaning: Overruling a precedent from a future date, not retrospectively (American doctrine).
• Formulation: Golak Nath case (1967).
• Basis: In India, there is no statutory prohibition against the court refusing to give retroactivity to the law declared by it.
• Propositions:
  1. Invoked only in matters under the Constitution.
  2. Applied only by the Supreme Court.
  3. The scope of retroactive operation is at the discretion of the court.
• Cases:
  • I.C. Golak Nath vs. State of Punjab (1967).
  • Shankari Prasad Singh vs. Union of India (1951).
  • Sajjan Singh vs. State of Rajasthan (1964).
  • Baburam vs. C.C. Jacob (1999).
  • Kesavananda Bharati vs. State of Kerala (1973).
  • Indra Sawhney vs. Union of India (1992).
  • Managing Director, ECIL, Hyderabad vs. B. Karunakar (1993).

DOCTRINE OF HARMONIOUS CONSTRUCTION

• Meaning: Interpret conflicting constitutional provisions harmoniously to avoid conflicts.

• Points to Consider:

  1. Read the constitution as a whole.
  2. Presume no conflict was intended.

• Application:

  1. Fundamental Rights vs. Directive Principles.
  2. Different Fundamental Rights.
  3. Fundamental Rights vs. Legislative Privileges.
  4. Fundamental Rights vs. Amendment Procedure.
  5. Fundamental Rights vs. Other Parts of the Constitution.
  6. Different Entries of the Legislative Lists

• Cases (Table 91.6):

  Sl. No.	Case (Year)	Supreme Court Judgement
  1.	Sri Venkataramana Devaru vs. State of Mysore (1957)	Ruled that the right of a religious denomination to manage its own affairs in matters of religion under Article 26(b) is subject to Article 25(2)(b).
  2.	M.S.M. Sharma vs. Krishna Sinha (1958)	Held that the fundamental right to freedom of speech and expression under Article 19(1)(a) is to be read subject to the privileges of House of Legislature guaranteed by Article 194(3).
  3.	O.N. Mohindroo vs. Bar Council of Delhi (1968)	Held that the Parliament is exclusively empowered to legislate with respect to persons entitled to practice before the Supreme Court and the High Court, and the power to legislate with respect to the rest of the practitioners falls under the Concurrent List.
  4.	D.A.V. College vs. State of Punjab (1971)	It held that no State has the legislative competence to prescribe any particular medium of instruction with respect to higher education, if it interferes with the power of Parliament under Union List.
  5.	Kesavananda Bharati vs. State of Kerala (1973)	It held that the word "law" in Article 13(2) includes only the ordinary laws and not the amendment acts made under Article 368.

DOCTRINE OF LIBERAL INTERPRETATION

• Meaning: Constitution interpreted broadly, not narrowly.
• Doctrine of Literal Interpretation: Constitution interpreted by its plain, ordinary, grammatical meaning.
• Doctrine of Purposive Interpretation: Courts should look into the purpose for incorporating a constitutional provision.
• Doctrine of Creative Interpretation: Innovative judicial interpretation; courts evolve new concepts/procedures.