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Principles of Constitutional Interpretation

Project Assignment

7th Semester, 5 year B.A., LL.B (hons)

Submitted

By

KALYANI BATTULA

11/LLB/10

DAMODARAM SANIJVAYYA NATIONAL LAW UNIVERSITY

November 2014
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ACKNOWLEDGMENT

This is to state that, I KALYANI BATTULA of Roll no.201110 completed

my semester (seventh) project work for Interpretation of statutes on the topic

Principles of Constitutional Interpretation.

I hereby thank Prof. Bharat sir, for supporting me throughout the work and

my friends and my parents for extending their support.

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Contents

Table of Cases ................................................................................................................................. 4

Abbreviations .................................................................................................................................. 4

Introduction ..................................................................................................................................... 5

Interpretation of the preamble of the Constitution .......................................................................... 6

General rules of interpretation of the Constitution ......................................................................... 6

Principles of Constitutional Interpretation ...................................................................................... 7

Principle of Colourable Legislation ................................................................................................ 7

Principle of pith and substance ....................................................................................................... 9

Principle of eclipse ........................................................................................................................ 11

Principle of Severeability.............................................................................................................. 12

Principle of territorial nexus ......................................................................................................... 13

Principle of Implied powers .......................................................................................................... 15

Principle of incidental or ancillary powers ................................................................................... 15

Conclusion .................................................................................................................................... 17

Bibliography ................................................................................................................................. 17
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Table of Cases
1. Re Kerala Education Bill, 1959 1 SCR 995
2. Qureshi v State of Bihar, 1958 AIR 731
3. Bhatia International v Bulk trading SA, (2003) 5 SCC (Jour) 22
4. Re Berubari, AIR 1960 SC 845
5. Keshavananda Bharathi’s case, AIR 1973 SC 1461
6. KC Gajapati v. State of Orissa, AIR 1953 SC 375
7. State of Bihar vs. Maharaja Kameshwar Singh & ors, 1955 SCR 889
8. Profulla Kumar vs. Bank of Khulna, AIR 1947 PC 60
9. State of Bombay vs. FN Balsara, AIR 1951 SC 318
10. Bhikhaji v. State of M.P, AIR 1955 S.C. 781
11. Keshavan Madhava Menon v. The State of Bombay, [1961] S.C.R. 288
12. AK Gopalan v. State of Madras, AIR 1950 SC 27
13. HR Banthia v. Union of India, AIR 1970 SC 1453
14. State of Bombay v. RMDC, AIR 1957 SC 699
15. Tata Iron & Steel Company vs. Bihar State, AIR 1958 SC 482
16. Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City, AIR 1955
SC 58

Abbreviations
1. SCR – Supreme Court Report
2. AIR – All India Report
3. PC – Privy Council
4. SCC – Supreme Court cases
5. Jour. – Journal
6. FR – Fundamental Right
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Introduction
The constitution is an organic instrument. It is the fundamental law. The general rule
adopted for construing a written constitution is the same as for construing any other statute. The
constitution should be interpreted so as to give effect to all its parts.
In democratic countries the judiciary is given a place of great significance. The courts
perform the key role of expounding the provisions of the Constitution. The courts act as the
supreme interpreter, protector and guardian of the supremacy of the Constitution. The judiciary
has to perform an important role in the interpretation and enforcement of human rights inscribed
in the fundamental law of the country. Therefore, it is necessary to consider what should be the
approach of the judiciary in the matter of Constitutional Interpretation. The judiciary has to
devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of
various rights embodied in the Constitution. The task of interpreting the constitution is a highly
creative judicial function which must be in tune with the constitutional philosophy. A democratic
society lives and swears by certain values such as individual liberty, human dignity; rule of law,
constitutionalism etc. and it is the duty of the judiciary to so interpret the constitution and the law
as to constantly inculcate these values on which democracy thrives. The predominant positivist
approach of interpretation followed by the Indian Judiciary emanates from the basic traditional
theory that a judge does not create law but merely declares the law.

There are basically three types of interpretation of the constitution.

1. Historical interpretation
Ambiguities and uncertainties while interpreting the constitutional provisions can be
clarified by referring to earlier interpretative decisions.
2. Contemporary interpretation
The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.
3. 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 in operative and useless should not be adopted except in the last resort.
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The Supreme Court held in Re Kerala Education Bill1 that 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 Bihar2, The 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 Berubari4, 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 case5, 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 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 liberalsense.

1
1959 1 SCR 995
2
1958 AIR 731
3
(2003) 5 SCC (Jour) 22
4
AIR 1960 SC 845
5
AIR 1973 SC 1461
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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 colourable legislation

2. Principle of pith and substance
3. Principle of eclipse
4. Principle of severeability
5. Principle of territorial nexus
6. Principle of implied powers
7. Principle of incidental or ancillary powers

Principle of Colourable Legislation

The doctrine of colourability is the idea that when the legislature wants to do something
that it cannot do within the constraints of the constitution, it colours 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 competency to enact a law. Colourable
Legislation does not involve the question of bonafides or malfides. 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
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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.

Important Case Laws

Case 1: KC Gajapati v. State of Orissa6

Facts: The petitioners were the owners of estates. The Orissa state Legislature enacted the
“Orissa State Estates Abolition Act, 1952” whose primarily purpose of the Act is to abolish all
zamindary and other proprietary estates and interests in the State of Orissa and after eliminating
all the intermediaries, to bring riots or the actual occupants of the lands in direct contact with the
State Government the compensation would be calculated at a certain number of years purchase
of the net annual income of the estate during the previous agricultural year, that is to say, the
year immediately preceding that in which the date of vesting falls. The other sum payable as
income-tax in respect of any other kind of income derived from the estate would also be included
in the deductions. The amount of compensation thus determined is payable in 30 annual equated
installments commencing from the date of vesting and an opinion is given to the State
Government to make full payment at any time.

Issue

Whether “Orissa State Estates Abolition Act”, 1952 is a piece of colourable legislation?

Legal Proposition

6
AIR 1953 SC 375
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That the doctrine of colourable legislation does not involve any question of bonafides or
malafides on the part of the legislature. The whole doctrine resolves itself into the question of
competency of a particular legislature to enact a particular law. If the legislature is competent to
pass a particular law, the motives which impelled it to act are really irrelevant 7. On the other
hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a
statute is constitutional or not is thus always a question of power “Malice or motive is beside the
point, and it is not permissible to suggest parliamentary incompetence on the score of malafides.
A distinction, however, exists between a legislature which is legally important like the British
Parliament and the laws promulgated by which could not be challenged on the ground of
incompetency, and a legislature which enjoys only a limited or a qualified jurisdiction.

Judgment

The validity of this provision has been challenged on the ground that it is a piece of
colourable legislation which comes within the principle enunciated by the majority of this court
in the Bihar case8. It is difficult to appreciate this argument of the learned counsel. It is not a
legislation on somethimg which is non-existent or unrelated to facts. It cannot also be seriously
contended that what section 37 provides for, is not giving of compensation but of negativing the
right to compensation as the learned counsel seems to suggest. There is no substance in this
contention and we have no hesitation in overruling it. The result is that all the points raised by
the learned counsel for the appellants fail and the appeals are dismissed. Having regard to some
important constitutional questions involved in these cases which needed clearing up, we direct
that each party should bear his own costs in these appeals. Appeal dismissed.

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.

7
MP Jain, Indian Constitutional Law, Wadwa Nagpur, 5 th Ed., 537
8
State of Bihar vs. Maharaja Kameshwar Singh & ors, 1955 SCR 889
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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 trespasses 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 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.

Case : Profulla Kumar vs. Bank of Khulna9

In this case, the Privy Council applied pith & substance doctrine. S. 100 GI Act 1935 is
similar to Art .246 of the Constitution. The Bengal Money Lenders Act 1940 provided for
limiting the amount and the rate of interest recoverable by any money lender on any loan.
Challenged that the Bengal Legislature has no legislative competence. The High Court held the
Act intra vires .But the Federal Court held it ultra vires. On appeal the Privy Council reversed
and held that Bengal Act in pith & substance is within the provincial legislative field. Money
lending in Entry 27 List two. Promissory Notes in Entry 28 List one. The interference was
incidental.

Case: State of Bombay vs. FN Balsara10

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.

9
AIR 1947 PC 60
10
AIR 1951 SC 318
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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 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 commencement of
the Constitution. An existing law only becomes eclipsed to the extend it comes under the
shadow of the FR.

Case: Bhikhaji v. State of M.P11

In this case the provisions of Civil Procedure and Berar Motor Vehicles (Amendment)
Act 1948 authorized the State Government to take up the entire motor transport business in the
Province to the exclusion of motor transport operators. This provision though valid when
enacted, but became void on the commencement of the Constitution in 1950 as they violated
Article 19(1) (g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended by
the Constitution (1st Amendment Act) so as to authorize. The Government to monopolise any
business. The Supreme Court held that the effect of the amendment was to remove the shadow
and to make the impugned Act free from blemish or infirmity. It became enforceable against
citizens as well as non-citizens after the constitutional impediment was removed. This law was
eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law
begins to operate from the date of such removal.

Case: Keshavan Madhava Menon v. The State of Bombay12

In this case 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

11
AIR 1955 S.C. 781
12
[1961] S.C.R. 288
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of India by article 19(1)(g) restrictions which could not be justified as reasonable under clause
(6) as it then stood and consequently under article 13(1)13 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
on 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 Severeability
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 in Part
III of the Constitution ie. 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.

13
Article 13 (1) – All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void.
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Case: AK Gopalan v. State of Madras14

In this case, 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 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.

Case: HR Banthia v. Union of India15

In this case, the Supreme Court struck down certain provisions of the Gold Control Act,
1968 and since these were not inextricably bound up with the rest of the provisions of the Act,
the rest were held to be valid. The decision is an illustration of severability in application.

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. 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

14
AIR 1950 SC 27
15
AIR 1970 SC 1453
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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 legislations also

Case: State of Bombay v. RMDC16

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.

Case: Tata Iron & Steel Company vs. Bihar State17

The 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.

16
AIR 1957 SC 699
17
AIR 1958 SC 482
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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.

Principle of incidental or ancillary powers

Incidental and ancillary powers are an elementary cardinal rule of interpretation that the
words used in the Constitution which confer legislative power must receive the most liberal
construction and if they are words of wide amplitude, they must be interpreted so as to give
effect to that amplitude18. It would not be correct to put a narrow or restricted construction on the
words of wide amplitude in a Constitution.

This principle is an addition to the doctrine of Pith and Substance. What it means is that
the power to legislate on a subject also includes 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 the act. In such cases, it has to be seen
whether the matter referred in the act is essential to give affect to the main subject of the act. For
example, power to impose tax would include the power to search and seizure to prevent the
evasion of that tax. Similarly, the power to legislate on Land reforms includes the power to
legislate on mortgage of the land. However, power relating to banking cannot be extended to
include power relating to non-banking entities. However, if a subject is explicitly mentioned in a
State or Union list, it cannot be said to be an ancillary matter. For example, power to tax is
mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to
the power relating to any other entry of the lists.

18
VN Shukla, “Constitutional Law”, 6th Ed., Wadhwa Nagpur: Lexis Nexis Butterworths, 2010, p575
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Case: Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City 19

Facts: The appellant was assessed by the Income Tax officer, Bomaby (by an assessment order
dated 31st March, 1948) for the assssessment year 1947-1948 on a total income of rs.19,66,782
including a sum of Rs.9,38,011 representing capital gains assessed in the hands of the4 appellant
under section 12(B) of the Indian Income tax Act, 1922. Now, this said amount of capital gains
was earned by the appellant in the following circumstances. The asppellant had a half share in
certain immovable properties that were situated in Bombay, which were sold by the appellant
himself along with his co-owners in the year ending 31st December, 1946 to a private limited

Company known as Mafatlal Gagalbhai & Company limited. The profits on the sale of
the said properties amounted to Rs.18,76,023 and there by the appellants half share came to a
sum of Rs. 9,38,011 which was included in the calculation of tax under Section 12(B) of the Act.

Issue of the Case

The main issue of the case is as follows:

Whether the imposition of a tax under the head “capital gains” by the Central Legislature is ultra
vires?

Now, the principle question arising is that Section 12(B) of the Indian Income tax act, 1922;
which authorized the imposition of tax on capital gains will fall under Entry 82 or Entry 86 of
List 1 of the seventh Schedule of the Constitution of India?

Judgment of the case

Section 12(B) is intra vires the powers of the Central Legislature, acting under Entry 82 (which
says, taxes on income other than agricultural income) of list 1 in seventh schedule of the
constitution of India. In this view of the matter, it is completely unnecessary to consider or
express any opinion as to the meaning, scope and ambit of Entry 86 in the same list. The appeal
is therefore dismissed.

19
AIR 1955 SC 58
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Conclusion
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 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 for 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 affect 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
Statutes
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1. Government of India Act, 1935

2. Constitution of India, 1950
3. Bengal Money Lenders Act 1940
4. Bombay Prohibition Act, 1949
5. Berar Motor Vehicles (Amendment) Act 1948
6. Indian Income tax Act, 1922
7. Preventive Detention Act, 1950
8. Gold Control Act, 1968

Books

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