What are doctrines?
Meaning of Doctrines: – Doctrines under Indian Constitution are codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system. Doctrines are “a rule, principle, theory, or tenet of the law; as, the doctrine of merger, the doctrine of relation, etc”. Doctrine is defined as a principle or group of principles which are taught by a religion or political party. An example of doctrine is the teaching of the Ten Commandments in Christianity.
Which doctrines are applied under the Indian Constitution?
The Doctrines that are applied in Indian Constitution are as follows: –
- Territorial Nexus
- Harmonious Construction
- Pith and Substance
- Doctrine of Colorable Legislation
- Doctrine of Repugnancy
- Territorial Nexus
What is Territorial Nexus?
Meaning of Territorial nexus: – Territorial nexus is a concept described in Article 245 of the Constitution of India that determines how legislative powers are divided. Article 245 states that (subject to the provisions of the Constitution), Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State.
Article 245 of Indian Constitution states that: –
- Parliament has power to make laws for whole or any part of the state.
- State has power to make laws for whole or any part of the state.
Thus, we can say that both union and state has their territorial jurisdiction to make laws. The article 245 sets out the limits of the legislative powers of the Union and the States from the geographical (or territorial) angle. According to article 245(2) of the Indian Constitution, if parliament make any laws for extra-territorial operations no questions can be raised on its validity and the courts are bound to enforce the laws make in regard of the extraterritorial operations.
Article 246 of the Indian Constitution states that: –
- Parliament has absolute power to make laws for the subject matter mentioned in the Union list (list 1 of 7th schedule).
- The state has absolute power to make laws for the subject matter mentioned in the state list (list 2 of 7th schedule).
- Both the state and the parliament has power to make laws for the subject matter mentioned in the concurrent list (list 3 of the 7th schedule).
Legislative relations are divided in two ways, which we being proportioned by the constitution: –
- Distribution of legislative powers in relation to the territory;
- In relation to the subject matters of the list mentioned under the 7th Schedule.
Distribution of legislative powers in relation to the territory: – According to article 245 of Indian Constitution, the parliament has power to make laws for whole or any part of the India. Here, parliament also has power to make laws for the extra-territorial jurisdiction and these laws cannot be invalidate that they do not have effect outside India.
Theory of Doctrine of Territorial Nexus
In order to give effect to laws made by a state for extra-territorial purpose, a nexus must be shown between the object and the state. The state legislature has jurisdiction to make laws within its territory. Territorial nexus is an exception which allows the state to legislate in the operations which are extra-territorial if it shows a sufficient nexus present between the object and the state.
Its importance can be determined from the observation of the Supreme Court which states that the principle of territorial nexus plays an important role in the assessment of tax. A transaction which is taxed, where operations that can give rise to income take place partially in one territory and partially in another.
A company was registered and incorporated did its business through a sleeping partner in India. The firm made a surprising profit in that accounting year. Income tax authorities sought to levy tax on the defendant’s company. The income tax authority was challenged by the defendant, but it was held by the Privy Council that the principles of territorial nexus existed and the tax was valid. It is said that the major part of income was generated from India and therefore it was sufficient basis to establish a territorial nexus.
The principle of territorial nexus can be applied in the following circumstances: –
- When there is any Extra-territorial operation in the state
- When there is a territorial nexus between the subject matter of the state and state making the law.
- It states that the object to which the law is applicable is not physically located within the territorial boundaries of the state, but must have a substantial territorial relationship with the state.
- A state can tax a person, property, object or transaction only if it is situated within its territorial boundaries, but also when it has a substantial and genuine territorial relationship with it.
What do you mean by Extra-Territorial Operations?
Parliament has power to make laws for territorial jurisdiction and as well as for extra-territorial jurisdiction that has legitimate nexus with India. The validity of laws made for Extra-territorial operations cannot be questioned. If the parliament made any laws which does not has any nexus with India then in that case the laws will turn out to be ultra-vires and will be considered as laws made for foreign land.
The principle of public trust states that all laws made by Parliament in relation to extraterrestrial operations will be made for the purpose of protecting the welfare and safety of India, which directly states that no laws shall made by parliament if there is no nexus with India.
The role of territorial nexus in Indian legislation
Article 245 of the Indian Constitution, states that to what extent legislative powers have been conferred in Parliament and state legislatures to enact laws in relation to the territory. Parliament has the power to make laws for which it has jurisdiction. The jurisdiction of the Parliament extends to the whole or any part of India and also to extra-territorial jurisdiction if there is sufficient nexus with India. These Extra-territorial laws cannot be questioned or ruled out as invalid. However, all laws must comply with the provisions of the Indian Constitution.
The powers conferred in Parliament are not absolute. The laws made by Parliament for extra-territorial operations are intended to operate outside the geographical boundaries of India. The state legislature does not have power to make laws for extra-territorial jurisdiction.
However, territorial nexus is the limitation of the state legislature. If it is established, there should be substantial relationship with the object and the laws made by the state legislature will have influence outside the territorial boundaries of the state.
The following circumstances are required to enforce the jurisdiction of territorial nexus: –
- If extra-territorial operations exist in a state
- If there is a valid nexus between the object and the state. It should be clear that the object will be located outside the territorial boundaries of the state, but it must have a territorial relationship with the state.
Case Laws of the Doctine of Territorial Nexus
Facts of the state: – The defendant did not live in Bombay, but he conducted competitions with prize money through a newspaper and published in Bengali and spread widely in Bombay. All the necessary activities for the competition like form filling, entry fee etc. The state government sought to levy tax on defendant to carry on business in the state.
Issue raised: – The question raised before the Supreme Court that the defendant could be validly taxed who is the organizer of the contest in the state of Bombay, but stays outside India.
Judgment of the case: – In this case, the court held that the most of the activities related to business are expected to commence within Bombay, so here this sufficient to create territorial nexus between the object and the state, thus the defendant has to pay tax which are levied upon him.
Issue raised: – Whether or not the sale was concluded within or outside of the state, if the goods were produced, found and manufactured in the state.
Judgment of the case: – The Court of Justice held that there is an adequate territorial nexus and considered the Act as valid. Whether, there is sufficient nexus between the laws and the object that should be taxed will depend on the facts and circumstances of a particular case. It was pointed out that the adequacy of a regional connection involves two elements — a) the connection must be genuine and not misleading b) the sought to be imposed must be reasonable for the relationship.
- State of Bihar vs. Charusila Dasi
Facts of the case: – The Bihar legislature enacted the Bihar Hindu Religious Trusts Act, 1950 for the preservation and protection of properties for Hindu religious trusts. The Act applied to all trusts, which were located in the state of Bihar. The defendant created a trust deed of his properties in several houses and lands in Bihar and Calcutta. This trust is located in Bihar.
Issue raised: – Whether the Act applies to the properties of the trusts which are located outside the state of Bihar. Can the legislature of Bihar make a law in relation to such trust located in Bihar and other properties of the trust which are located outside Bihar?
Judgement of the case: – Applying the principle of territorial nexus, the Supreme Court held that the Act can affect trust property located outside Bihar, but is dependent for a trust located in Bihar where the trustees operate. The act is intended to provide for better administration of Hindu religious trusts in the state of Bihar. The state has legislative power over it because this trust is located in Bihar and also for people who are working as servants or agents or trustees in the trust or people who must be working as administrators in trust.
It is essential that the relationship between faith and property is not real and illusory and cannot be separated from each other in a holistic manner as one that connects religious institution and property.
- Harmonious Construction
What is Harmonious construction?
Meaning of Harmonious construction: – The term harmonious construction refers to such construction by which harmony or oneness amongst various provisions of an enactment is arrived at. When the words of statutory provision bear more than one meaning and there is a doubt as to which meaning should prevail, then such meaning should be adopted by which the words best harmonize with the subject and the subject of the enactment.
Harmonious construction is a doctrine where it is held that if two or more provisions of the same act are inconsistent with each other, it should be interpreted in such a way that both are given effect. According to the dictionary harmonious construction means when two different laws have two different but conflicting meanings, they try to create a harmonious meaning (so that both laws can be applied).
This rule runs on a very simple basis that every law has its purpose and intention according to law and it should be read as a whole. Interpretation must be adopted in accordance with all provisions of law. In cases where it would be impossible to create harmony between the two provisions, the decision of the court regarding that provision will apply.
Principles of this rule
- The courts should reasonably avoid any conflict of contradictory provisions and stop conflicting provisions so that they can be harmonized.
- The provision of one clause cannot be used to defeat the provision contained in another.
- The court should interpret it in such a way that both provisions can be given as much effect as possible.
- If the Court interpretation of one provision has reduced to the useless number or dead, then it is not a harmonious construction.
- Harmonize does not mean to destroy any statutory provision or made it fruitless.
Doctrines related to harmonious construction:
1. Generalia specialibus non derogant: – It has been said that courts give priority to special provisions over provisions of general application where the provisions are in conflict.
2. Generalia Specialibus Derogant: – It has been said that courts give priority to general provisions over the special ones where the provisions are in conflict.
Procedure to give effect to the doctrine
The principle of harmonious construction requires the following four steps: –
- That the two provisions which are conflicting should be read as a whole in the context of the entire enactment in question.
- Give full effect to both and then reduce conflict.
- The two conflicting provisions, both of them have a wide and narrow range.
Case laws of the Doctine of harmonious construction
- Venkataramana Devaru vs. State Of Mysore
- In this case, there is a conflict between Article 25 (2) (b) and 26 (b) of the Constitution.
- The Supreme Court implemented a harmonious construction in resolving conflicts between the above classes.
- In this case, it was held that the right of each religious sector or any of its classes or it is a matter of religion them it is a subject to a law made by the state providing for social welfare and Hindu religious institution.
- M.S.M Sharma vs. Krishna Sinha
In this case, it was held that the right to freedom of speech guaranteed under Article 19 (1) (a) is read under the powers, privileges and immunities of a House of the Legislature, which is the home of the Commons of the United States Declared by letter part of article 194 (3) as a kingdom.
- Pith and Substance
What is Doctine of Pith and substance?
Meaning of Pith and substance: – Pith and Substance is a legal doctrine used to determine under which head of power a given piece of legislation falls. Pith and Substance is the first tool that courts use to determine which level of government has authority over a certain matter or issue. At its most basic, a pith and substance analysis asks what the essential character of a law is. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.
Pith refers to the true character or the true essence of something, whereas substance means an indispensable part of something; it literally means the true nature and the essence of any enactment. This doctrine is used to determine the competency of the legislature in order to enact laws as per the Article 246 of the constitution on the various subject matters which have been listed in the three lists of the 7th schedule which are responsible for the distinction between the power possessed by the central and state legislatures to legislate on certain subject matters.
The Constitution of India has divided the extent of legislative powers between the Center and the states according to the Seventh Schedule.
The Seventh Schedule specifies the subject and divides the power of law making between the Center and the State: –
- List I or Union List includes those cases where the Center has the power to make laws, e.g. Defense, Foreign Affairs and Currency.
- List II or State List includes subjects where the state has the power to legislate, e.g. Public order, health and sanitation.
- List III or Concurrent List includes those subjects where both the Center and the State have powers to make laws, e.g. Education, Forest and Administration Justice.
Although their spheres of influence are well established in the Seventh Schedule, but still sometimes there are often conflicts over whether the Center or the state, has the authority on the other’s territory. To deal with this conflict, courts in India have developed certain principles and the pith (essence of something) and the old principle of matter (the essential part of something) are one of them.
Origin of Doctrine of Pith and Substance
It is widely believed that the theory of pith and matter has its origins in Canada and it was introduced later in India in the year in 1880 in a case called Lush v. Dupuy. The doctrine later made its way into India and strongly supported Article 246 of the Indian Constitution and Seventh Schedule. In India, it has evolved to become a prestigious doctrine that formed the basis of many Supreme Court decisions.
What constitute doctrine of Pith and Substance?
The doctrine of pith and substance has given much needed flexibility to the Indian constitutional scheme because in the absence of this principle every other law would have been declared invalid it is in contradiction with the subject of other list.
In addition to its applicability in matters relating to the competence of the legislature mentioned in Article 246, it is also applied in matters relating to Article 254, which relate to laws made by Parliament and laws made by law. State Legislatures. The doctrine is employed in such cases to resolve inconsistencies between laws made by the Center and the State Legislature.
- The principle is applied when the content of List I of the Seventh Schedule is in dispute with the subject of List II.
- The objective behind adopting this principle is that otherwise every law would be declared illegal on the grounds that it encroaches on the subject of another area.
- Theory examines the true nature and substance of the law in order to determine to which list it belongs.
- It takes into account whether the state has the power to make a law that encroaches on another subject from another list.
- The doctrine was previously applied and upheld by the Supreme Court in the FN Balsara case.
What is the Nned for Pith and Substance in India?
- One of the main reasons for the acceptance and applicability of the doctrine of pith and substance in India was to provide flexibility to an otherwise existing rigorous scheme related to the distribution of electricity in the federal structure.
- Another important thing to be interpreted here is that “if every law would be declared as invalid on the grounds that it was encroaching upon the subject of another list, then these powers delegated to the legislature to a great extent will become restrictive and not serve the purpose of the power being given to the legislature.
Case laws of Doctrine of Pith and Substance
- State of Bombay vs. F.N Balsara
Facts of the case: – The Bombay Prohibition Act was challenged on the grounds that it erroneously encroached on the import and export of liquor across the Custom Frontier – a central subject.
Judgment of the case: – The court in this case held that this case that the act was in its pith and Substance doctrine and it falls under the state list because the act was of import of liquor in the state.
2. Prafulla Kumar Mukherjee vs. Bank of Khulna
Facts of the case: – In this case, the validity of the Bombay Money Lenders Act, 1946 was questioned. The main argument here was that promissory notes form part of the central subject and not the state subject.
Judgement of the case: – The Privy Council held that while explaining the doctrine of Pith and Substance, the Act is actually a law in relation to ‘money lending and money lenders’ and was clearly a state subject, further the court stated an important point and Said that even though this act was entangled with the subject of ‘ory promissory note’, which is a central subject, thus it falls under the doctrine of Pith and Substance.
- Doctrine of Colorable Legislation
What is doctrine of Colorable Legislation?
Meaning of doctrine of Colorable Legislation: – The doctrine of Colorable Legislation is based on the legal maxim ‘Quando aliquid prohibetur ex directo, prohibetur et per obliquum’ which states that what cannot be done directly should not be done indirectly. The doctrine becomes applicable when a legislature seeks to do something in an indirect manner when it cannot do it directly.
In our Constitution, this principle generally applies to Article 246, which outlined the separate subjects under List II for Parliament and States, both for Parliament and for State Legislative Assemblies under List III of Parliament and States. Legislative capacity is demarcated in the seventh schedule.
This principle applies when a legislature does not have the power to legislate on a particular subject, but still indirectly do the same. By applying this principle, the fate of the affected legislation is decided.
Doctrine of Colorable Legislation from the Supreme Court’s view
Laws can be said to be colored when a body has no power to make laws but still it create laws in such a way that it seems to be within its powers. The point is that the legislature cannot exceed its area of competence. Such an example is a simple procedural offense.
This doctrine is also known as “Fraud on Constitution”. Failure to follow the conditions for the exercise of legislative power may be done openly or in secret. When it is over, we say that the law is clearly bad for compliance with the requirements of the Constitution, that is to say, the law is ultra virus. When it is done openly then we can say that the law does not comply with the requirements of the Constitution and we declare it as ultra-vires.
When it done secretly the we say it as fraud on Constitution as the law was made even through the the maker do not have the authority to make that law.
Limitations on the application of Doctrine of Colorable Legislation
Limitations on the application of Doctrine of Colorable Legislation are as follows: –
- The doctrine has no application where the powers of a Legislature are not achieved by any constitutional limitation.
- The principle also does not apply to subordinate legislation.
- This doctrine does not include any question of bona fide or mala fide on behalf of the legislature. The whole principle resolves itself, the question of the competency of a particular legislature to enact a particular law.
Case laws of Doctrine of Colorable Legislation
- State of Bihar vs. Kameshwar Singh
This is the only case where a law based on the law relating to extortion is declared invalid. In this case, the Bihar Land Reforms Act, 1950 was held to be unconstitutional on the ground that although it was purportedly repealed to fulfill the principle of compensation, it did not lay down any such principle and hence any compensation An attempt was made to defraud the petitioner.
At last, when the legislature had the power to legislate on any issue, it had all the auxiliary and contingent power to make the law efficient. Therefore, color legislation is required to fix legislative accountability in the context of certain amendments to legislative functions.
- Doctrine of Repugnancy
What is doctine of Repugnancy?
Meaning of doctine of Repugnancy: – Doctrine of repugnancy can be defined as “an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or contract)”. The doctrine of Repugnancy essentially deals with the conflict between the laws of Centre and State.
Article 245 states that the Parliament as a whole or can make laws for anyone. One part of India and one state legislature can make laws for the whole or any part of the state. It further states that any law made by Parliament is not considered invalid on this basis that it would have an extra-regional operation.
Article 246 includes subject matter of laws and made by parliament and legislature of state, which are as follows: –
- Parliament has special power to make laws in relation to any matter included in the Union List in the Union List in the Seventh Schedule.
- The Legislature of any State has the exclusive power to make laws for such State in relation to any matter introduced in List II.
- The Parliament and the Legislature of any State have the power to make laws in relation to any matter included in the list III or concurrent list in the Seventh Schedule.
- The Act has the power to make laws in relation to any matter for any part of the territory of India, excluding that the matter is included in the State List.
When Doctrine of Repugnancy Arises?
- Direct conflict: – There can be inconsistency in the actual terms of the statute when one legislature say “do” and the other says “don’t”. There is a clear and direct inconsistency to the Central Act and the State Act, and such inconsistency is purely of such nature as to bring the two Acts into direct confrontation and a situation where it is impossible to obey one.
- Occupied Field: – There may not be a clear conflict or collis ion between the two provisions yet there may be recurrence between the two covering the same field.
- Intended Occupation: – This can happen when there is no direct conflict between the two provisions nor does the act directly take away the authority given by the other, yet there may be repugnancy which can arise in future.
Conditions to be applied for enactment of doctrine of repugnancy
Conditions to be applied for enactment of doctrine of repugnancy are as follows: –
- There should be clear and direct inconsistency between the central and the state act.
- Such an inconsistency is completely irreparable.
- The inconsistency between the provisions of both the Acts is such that both the Acts are brought into direct confrontation with each other and a situation where it is impossible to follow one without disobeying the other.
Subsequently, the Court made the following propositions in this regard
- In order to decide the question of counterclaim, it should be shown that the two Acts have inconsistent and irrelevant provisions so that they stand together or operate in the same area.
- Unless the inconsistency appears on the face of the two statutes, no revocation can be made by implication.
- Where both laws occupy a particular area, but both laws are likely to operate without colliding with each other in the same area.
Supreme court’s interpretation of the doctrine of Repugnancy
Article 254 has been presented by the Supreme Court in Karunanidhi vs. Union of India, the court stated that: –
- Where the provisions of Central Act and State Act of the Concurrent List are completely inconsistent and completely irreparable, the Central Act shall prevail in such a case and the State Act shall be considered as void in that case.
- Where a law passed by the State comes into conflict with a law passed by Parliament on an entry in the Concurrent List, the State Act shall remain to the extent of repugnancy and the provisions of the Central Act shall be void.
- Where, a law on the subject covered by the concurrent list by the State Legislature is inconsistent with and against the previous law made by Parliament, then such law is protected by obtaining the assent of the President under Article 4(2).
Case laws of doctrine of Repugnancy
1. Deepchand vs. State of UP (1959)
Facts of the case: – The Transport Services Act authorizes the state government to “nationalize motor transport” plans. The law was required because there was no such provision in the Central Motor Vehicles Act, 1939. Later, Parliament amended the Act by adding a new chapter to enable the state government to implement and execute the plans for nationalization.
Judgement of the case: – It was held that the two laws belong to the same area and state law so here in the case repugnancy is void. The new chapter in the Act does not imply that plans already finalized should be reopened. Legislation under the UP Act favors the schemes supported in relation to the schemes created under the central scheme and becomes void only.
2. National Engg. Industries Ltd. vs. Shri Kishan Bhageria
The best test of repugnancy is that if one prevails, the other cannot prevail. Nicholas, Second Edition, page 303 in his Australian Constitution, refers to three tests of inconsistency or repugnancy: –
- The actual terms of competing statutes may be inconsistent;
- Although there may be no direct conflict, a state law may be inactive because Commonwealth law, or the award of the Commonwealth Court, must complete a exhausted code; and
- In the absence of intention, both the state and the Commonwealth may create conflict situations to exercise their powers.
3. Govt. of AP vs. J.B. Educational Society
Keeping in mind the ambits and scope of Article 246 and 254, the Parliament has special power to make laws with respect to matters in List I. The non-obsolete clause under Article 246 (1) refers to the predominance or dominance of legislation made by the Central Legislature in the event of an overlap of legislation made by Parliament with respect to a matter mentioned in List I in relation to a case in List II.