INTERNAL AIDS TO INTERPRETATION

Laws enacted by the legislatures are interpreted by the judiciary. Enacted laws, specially the
modern Acts and Rules, are drafted by legal experts and it could be expected that the language will
leave little room for interpretation or construction

1. Long Title
It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid to
its construction. The long title which often precedes the preamble must be distinguished
with the short title; the former taken along with the preamble or even in its absence is a
good guide regarding the object, scope or purpose of the Act, whereas the latter 341 being
only an abbreviation for purposes of reference is not a useful aid to construction.

2.Preamble
The preamble of a statute like the long title is a part of the Act and is an admissible aid to
construction. Although not an enacting part, the preamble is expected to express the scope, object
and purpose of the Act more comprehensively than the long title. It may recite the ground and
cause of making the statute, the evils sought to be remedied or the doubts which may be intended
to be settled. In the words of SIR JOHN NICHOLL : It is to the preamble more specifically that we are
to look for the reason or spirit of every statute, rehearsing this, as it ordinarily does, the evils
sought to be remedied, or the doubts purported to be removed by the statute, and so evidencing, in
the best and most satisfactory manner, the object or intention of the Legislature in making or
passing the statute itself.

3. Preamble to Constitution

The Preamble of the Constitution like the Preamble of any statute furnishes the key to open
the mind of the makers of the Constitution more so because the Constituent Assembly took
great pains in formulating it so that it may reflect the essential features and basic objectives
of the Constitution. The Preamble is a part of the Constitution The Preamble embodies the
fundamentals underlining the structure of the Constitution. It was adopted by the
Constituent Assembly after the entire Constitution has been adopted.

The true functions of the Preamble is to expound the nature and extend and application of
the powers actually confirmed by the Constitution and not substantially to create them.
The Constitution, including the Preamble, must be read as a whole and in case of doubt
interpreted consistent with its basic structure to promote the great objectives stated in the
preamble. But the Preamble can neither be regarded as the source of any substantive
power nor as a source of any prohibition or limitation.

4. Headings

The view is now settled that the Headings or Titles prefixed to sections or group of sections
can be referred to in construing an Act of the Legislature. But conflicting opinions have
been expressed on the question as to what weight should be attached to the headings. A
Heading•, according to one view, is to be regarded as giving the key to the interpretation of
the clauses ranged under it, unless the wording is inconsistent with such interpretation;
and so the headings might be treated as preambles to the provisions following them.

5. Marginal Notes

In the older statutes marginal notes were not inserted by the legislature and hence were
not part of the statute and could not be referred to for the purpose of construing the
statute. If they are also enacted by the legislature they can be referred to for the purpose of
interpretation. In the case of the Indian Constitution, the marginal notes have been enacted
by the Constituent Assembly and hence they may be referred to for interpreting the
Articles of the Constitution. If the words used in the enactment are clear and unambiguous,
the marginal note cannot control the meaning, but in case of ambiguity or doubt, the
marginal note may be referred to.

6. Punctuation

Punctuation means to mark with points and to make points with usual stops. It is the art of
dividing sentences by point or mark. Is the Court entitled to use punctuation also while
interpreting the statutes? Punctuation is considered as a minor element in the construction
of statutes.

7. Illustrations

Illustrations appended to a section from part of the statute and although forming no part of
the section, are of relevance and value in the construction of the text of the section and they
should not be readily rejected as repugnant to the section. It would be the very last resort
of construction to make this assumption. The great usefulness of the Illustrations which
have, although not part of the sections, been expressly furnished by the Legislature as
helpful in the working and application of the statute, should not be thus impaired.

8. Definition Section

These do not take away the ordinary and natural meaning of the words, but as used: (i) to
extend the meaning of a word to include or cover something, which would not normally be
covered or included; and (ii) to interpret ambiguous words and words which are not plain
or clear.

9. Proviso

The proper function of a proviso is to except and to deal with a case which would otherwise
fall within the general language of the main enactment and its effect is confined to that
case. It is a qualification of the preceding enactment which is expressed in terms too
general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify
or create an exception to what is in the enactment and ordinarily, a proviso is not
interpreted as stating a general rule. Normally, a proviso does not travel beyond the
provision to which it is a proviso. It craves out an exception to the main provision to which
it has been enacted as a proviso and to no other.

10. Explanation

The object of an Explanation to a statutory provision is –

1. to explanation the meaning and intendment of the Act itself,

2. where there is any obscurity or vagueness in the main enactment, to clarify the same so as
to make it consistent with the dominant object which it seems to subserve,
3. to provide an additional support to the dominant object of the Act in order to make it
meaningful and purposeful,
4. an Explanation cannot in any way interfere with or change the enactment or any part
thereof but where some gap is left which is relevant for the purpose of the Explanation, in
order to suppress the mischief and advance the object of the Act it can help or assist the
court in interpreting the true purport and intendment of the enactment, and
5. it cannot, however, take away a statutory right with which any person under a statute has
been clothed or set at naught the working of an Act by becoming an hindrance in the
interpretation of the same.
 DEFFERENCES BETWEEN CONSTITUTIONAL INTERPRETATION &
STATUTORY INTERPRETATION
Statutory Interpretations is the process by which Judges interpret Acts of Parliament. 75% of cases heard
by the House of Lords are concerned with statutory interpretation. Statutory Interpretation is the process
of reading and applying statutory laws, and judges trying to find out the intention of parliament when
passing the law. Sometimes the words of a statute have a plain and straightforward meaning. But in most
cases, there is some ambiguity (can be interpreted in more than one way) or vagueness (unclear) in the
words of the statute that must be resolved by the judge. An example of where the language was unclear
can be seen in the case of Twining v Myers (1982), where court has to decide whether roller skates
amounted to a ‘vehicle’. There may be other cases where the meaning of words change over time, for
example the Offences Against a Persons Act 1861 uses the word “malicious” and “grievous” which either
would not be used in this modern day and time, or if used have different meanings to which was intended
when the Drafts Man of the act write it. Other means of when Statutory interpretations would be needed is
when Drafting errors are present in the bill, this happens mostly when bills are rushed in times of
emergency.

Problems of interpreting statutes?

The problems with interpreting statues is that Judges have to decide what parliament meant by a
particular piece of legislation. In most cases judges correctly judge of what the intentions of parliament
was at the time of passing the law and whether it still applies in the present time. However, as you with all
methods there are disadvantages. Judges can often miss-interpret the act or legislation. Other factors
which may arise as a problem is their ruling must abide with the Human Rights Act and European Law.
This may lead to laws not being applied by which parliament intended as it contradicts higher laws which
may not have been present at the time of the passing of legislation.

How judges deal with problems of statutory interpretation?

Presumptions

A judge begins by assuming certain things. These will be taken to be true unless a good argument is
given to demonstrate that the presumption should not apply. These presumptions are:

 That the law has not been changed – unless the act shows a clear intention to change it;

 That mens rea is required in criminal cases;

 That parliament has not changed the law ‘retrospectively’ (that the stature does not affect
past acts, to make illegal something that was legal at the time it was done).

Presumptions of language:

 Ejusdem generis (of the same kind) – general words following particular words are of the
same class: (for example, ‘tradesman, workman, labourer or other person whatsoever’ will only
cover person of a similar type). In the case of Powell v Kempton Park Racecourse (1899), the
words ‘other place’ were held to mean ‘other indoor place’ because the list referred to a ‘house,
office, room or other place’ and the ‘house’, ’office’ and ‘room’ are all indoors.

 Noscitur a socis (known by the company it keeps) – words derive their meaning from the
other words surrounding them (which means words are generally interpreted in the context of the
 Section and the Act as a whole). i.e. ‘floors,’ in the expression ‘floors, steps, stairs, passages and
gangways’ was interpreted to cover floor along which persons walked as opposed to any storage
space.

 Expression unius est exclusion alterius (the expression of one excludes others) – the
express reference of one member of a class may exclude other members of the class not so
expressed (for example the express reference to ‘coal mines’ may exclude reference to other
types of mine.)

Literal Rule

The literal rule requires the judge to give the word or phrase its natural, ordinary or dictionary meaning,
even if this appears to be contrary to the intentions of parliament. As Lord Reid said in Pinner v Everett
(1969):

“In determining the meaning of any word or phrase in a statute, the first question to ask is always what is the natural
and ordinary meaning of that word or phrase in its context in the statute.”

In the case of Whiteley v Chappell (1868) an Act made it offence to impersonate ‘any person entitled to
vote at an election.’ The defendant attempted to vote in the name of a decreased person, but the court
held no offence had been committed because when ‘any person entitled to vote’ is interpreted literally, it
does not include dead people.

Another example is in the case of Fisher v Bell (1961). In this case the defendant displayed flick knives
in his shop window. He was charged under The Restriction of Offensive Weapons Act (1959). The act
made it an offence to ‘sell or offer for sale’ an offensive weapon. In contract law the display of goods in a
shop window is not an offer for sale but an invitation to treat; the display of goods thus invites the
customer to make an offer to buy the goods. The court found the defendant not guilty despite the obvious
aim of the Act being to prevent such behavior.

Golden Rule

This rule allows the court to look at the literal meaning of a word or phrase, but then avoid using a literal
interpretation which would lead to absurd result. There are two approaches taken while applying the
golden rule, these being the narrow approach and the broad approach.

So under the golden rule, the court takes the literal approach unless it results in great absurdity,
inconvenience, or inconsistency, and then it modifies the meaning, within the context of the statute, just
as far as is necessary to avoid the absurdity.

The River Wear Commissioners v Anderson (1877)

“we are to take the whole of the statute together and construe it altogether, giving the words their ordinary
signification, unless when so applied they produce an inconsistency, or an absurdity, or inconvenience, so great as to
convince the court that the intention could not have been to use them in their ordinary signification, and to justify the
court in putting on them some other signification, which, though less proper, is one which the court thinks the words
will bear.’

An example of narrow approach can be seen in the case of Allen (1872). In this case the defendant
married for a second time. He was charged under the Offences Against the Person Act 1861, which
states it is an offence to marry again without the previous marriage being ended by a divorce. Allen
argued that is was not possible to be legally married twice, so he could not have committed an offence.
This interpretation of the word ‘marry’ would mean that the offence is impossible to commit. The court had
to decide whether ‘marry’ means to become legally married to another person, or whether it means to go
through a ceremony of marriage. To avoid an absurd result the court adopted the second meaning and
held Allen was guilty under the Act.

In the case of Re: Sigsworth (1935), a person who had murdered his mother was allowed to benefit from
the proceeds of her estate, when she died without leaving a will. If statutory law had been interpreted
literally, the son would have formed the ‘issue’ of the dead woman, and have been able to claim her
money. The court felt that they had to modify this, within the context of the statute, on grounds of public
policy, to prevent the murderer benefiting from the fruits of his crime.

An example of Broad approach can be seen in the case of Adler v George (1964) the defendant was
charged under the Official Secrets Act 1920 with obstructing a member of armed forces ‘in the vicinity of
a prohibited place.’ The defendant argued that he was actually in the prohibited place, not in the vicinity of
it, that is, near to it. Had the court applied this literal interpretation of the phrase the defendant would not
have been guilty. The court therefore interpreted the phrase ‘in the vicinity of’ to include ‘in’ a prohibited
place to avoid absurd result.

Mischief Rule

The mischief rule is applied to find out what Parliament meant. It is a contextual method of interpreting
statutes, and looks for the wrong, or mischief, which the stature was trying to correct. The statute is then
interpreted in the light of this. The rule is an old rule, based on the Heydon’s Case (1584) in which
certain steps were indentified as a way to interpretation. It was said that judges should:

 Consider what the law was before the Act was passed;

 Identify what was wrong with that law;

 Decide how Parliament intended to improve the law through the statute in question;

 Apply that finding to the case before the court.

Broadly speaking, therefore, the rule requires that where an Act has been passed to remedy a weakness
or defect in the law, the interpretation which will correct that weakness or defect is the one to be adopted.

An example of where the mischief can be seen in the case of Smith v Hughes (1960). Some prostitutes
were accused of soliciting, contrary to the Street Offences Act 1958 which made it offence to ‘solicit in a
street…for the purpose of prostitution’. The defendant, along with other prostitutes, sat on a balcony, or
inside a building tapping on the window, to attract the attention of men in the street. Interpreted literally,
there would therefore be no offence. Applying the mischief rule, it did not matter that the women were not
themselves in the street, as they were still soliciting men in the street, which was what the Act was
designed to prevent. They were therefore found guilty. Lord parker said, ‘Everybody knows that this was
an Act intended to clean up the streets…I am content to base my decision on that ground and that ground
alone’.

Purposive Approach

The purposive approach focuses on what Parliament intended when passing the new law. The purposive
approach is a modern version of the mischief approach.
In Pepper (Inspector of Taxes) v Harts (1993) Lord Browne-Wilkinson said: “the fine distinction between
looking for the mischief and looking for the intention in using words to provide the remedy are technical
and inappropriate.'

The purposive approach: the court looks at the purpose of the statute and interprets the words to bring
about that purpose.

An example of purposive approach can be seen in the case of Pepper (Inspector of Taxes) v Harts
(1993) where the issue was how to interpret s63 of the Finance Act 1976. Teachers at an independent
school for boys were having their children educated at the school for a fifth of the price charged to the
public. This was a taxable benefit based on the ‘cash equivalent’ could be interpreted to mean either the
additional cost of providing the concession to the teachers or the average cost of providing the
concession to the teachers or the average cost of providing the tuition to the public and the teachers. The
House of Lords referred to statements made by the Financial Secretary to the Treasury during the
committee stage which revealed that the intention of Parliament to tax employees on the basis of the
additional cost to the employer of providing the concession.

Another example can be seen in the case of Jones v Tower Boot Co. (1997). In this case the Court of
Appeal had to decide whether the physical and verbal abuse of a young black worker by his workmates
fell within ‘the course of employment’ under s32 of the Race Relations Act 1976. The employer had
argued that these actions fell outside the course of the workmate’s employment, because such behavior
was not part of their job. The Employment Appeal Tribunal could not therefore be held responsible to the
young black worker for his workmate’s behaviour. This decision was reversed by the Court of Appeal
using the purposive approach to interpret s32. Parliament’s intention when enacting the Race Relations
Act was to eliminate discrimination in the workplace and this would not be achieved by applying a narrow
construction to the wording.

The purposive approach provides scope for judicial law-making because the judge is allowed to decide
what he/she thinks Parliament intended the Act to say rather than what the Act actually says.

DEFFERENCES BETWEEN CONSTITUTIONAL INTERPRETATION &

STATUTORY INTERPRETATION

Statutory Interpretations is the process by which Judges interpret Acts of Parliament.

75% of cases heard by the House of Lords are concerned with statutory interpretation.
Statutory Interpretation is the process of reading and applying statutory laws, and
judges trying to find out the intention of parliament when passing the law. Sometimes
the words of a statute have a plain and straightforward meaning. But in most cases,
there is some ambiguity (can be interpreted in more than one way) or vagueness
(unclear) in the words of the statute that must be resolved by the judge. An example of
where the language was unclear can be seen in the case of Twining v Myers (1982),
where court has to decide whether roller skates amounted to a ‘vehicle’. There may be
other cases where the meaning of words change over time, for example the Offences
Against a Persons Act 1861 uses the word “malicious” and “grievous” which either
would not be used in this modern day and time, or if used have different meanings to
which was intended when the Drafts Man of the act write it. Other means of when
Statutory interpretations would be needed is when Drafting errors are present in the bill,
this happens mostly when bills are rushed in times of emergency.
Problems of interpreting statutes?

The problems with interpreting statues is that Judges have to decide what parliament
meant by a particular piece of legislation. In most cases judges correctly judge of what
the intentions of parliament was at the time of passing the law and whether it still
applies in the present time. However, as you with all methods there are disadvantages.
Judges can often miss-interpret the act or legislation. Other factors which may arise as
a problem is their ruling must abide with the Human Rights Act and European Law. This
may lead to laws not being applied by which parliament intended as it contradicts higher
laws which may not have been present at the time of the passing of legislation.

How judges deal with problems of statutory interpretation?

Presumptions

A judge begins by assuming certain things. These will be taken to be true unless a good
argument is given to demonstrate that the presumption should not apply. These
presumptions are:

 That the law has not been changed – unless the act shows a clear
intention to change it;

 That mens rea is required in criminal cases;

 That parliament has not changed the law ‘retrospectively’ (that the stature
does not affect past acts, to make illegal something that was legal at the time it
was done).

Presumptions of language:

 Ejusdem generis (of the same kind) – general words following particular
words are of the same class: (for example, ‘tradesman, workman, labourer or
other person whatsoever’ will only cover person of a similar type). In the case
of Powell v Kempton Park Racecourse (1899), the words ‘other place’ were
held to mean ‘other indoor place’ because the list referred to a ‘house, office,
room or other place’ and the ‘house’, ’office’ and ‘room’ are all indoors.

 Noscitur a socis (known by the company it keeps) – words derive their

meaning from the other words surrounding them (which means words are
generally interpreted in the context of the Section and the Act as a whole). i.e.
‘floors,’ in the expression ‘floors, steps, stairs, passages and gangways’ was
interpreted to cover floor along which persons walked as opposed to any storage
space.

 Expression unius est exclusion alterius (the expression of one excludes

others) – the express reference of one member of a class may exclude other
 members of the class not so expressed (for example the express reference to
‘coal mines’ may exclude reference to other types of mine.)

Literal Rule

The literal rule requires the judge to give the word or phrase its natural, ordinary or
dictionary meaning, even if this appears to be contrary to the intentions of parliament.
As Lord Reid said in Pinner v Everett (1969):

“In determining the meaning of any word or phrase in a statute, the first question to ask
is always what is the natural and ordinary meaning of that word or phrase in its context
in the statute.”

In the case of Whiteley v Chappell (1868) an Act made it offence to impersonate ‘any
person entitled to vote at an election.’ The defendant attempted to vote in the name of a
decreased person, but the court held no offence had been committed because when
‘any person entitled to vote’ is interpreted literally, it does not include dead people.

Golden Rule

This rule allows the court to look at the literal meaning of a word or phrase, but then
avoid using a literal interpretation which would lead to absurd result. There are two
approaches taken while applying the golden rule, these being the narrow approach and
the broad approach.

So under the golden rule, the court takes the literal approach unless it results in great
absurdity, inconvenience, or inconsistency, and then it modifies the meaning, within the
context of the statute, just as far as is necessary to avoid the absurdity.

Mischief Rule

The mischief rule is applied to find out what Parliament meant. It is a contextual method
of interpreting statutes, and looks for the wrong, or mischief, which the stature was
trying to correct. The statute is then interpreted in the light of this. The rule is an old rule,
based on the Heydon’s Case (1584) in which certain steps were indentified as a way to
interpretation. It was said that judges should:

 Consider what the law was before the Act was passed;

 Identify what was wrong with that law;

 Decide how Parliament intended to improve the law through the statute in
question;

 Apply that finding to the case before the court.

Broadly speaking, therefore, the rule requires that where an Act has been passed to
remedy a weakness or defect in the law, the interpretation which will correct that
weakness or defect is the one to be adopted.

Purposive Approach

The purposive approach focuses on what Parliament intended when passing the new
law. The purposive approach is a modern version of the mischief approach.

In Pepper (Inspector of Taxes) v Harts (1993) Lord Browne-Wilkinson said: “the fine
distinction between looking for the mischief and looking for the intention in using words
to provide the remedy are technical and inappropriate.'

The purposive approach: the court looks at the purpose of the statute and interprets
the words to bring about that purpose.

CONSTITUTIONAL INTERPRETATION

"Constitutional interpretation" comprehends the methods or

strategies available to people attempting to resolve disputes about
the meaning or application of the Constitution. The possible sources
for interpretation include the text of the Constitution, its "original
history," including the general social and political context in which it
was adopted as well as the events immediately surrounding its
adoption, the governmental structures created and recognized by
the Constitution, the "ongoing history" of interpretations of the
Constitution, and the social, political, and moral values of the
interpreter's society or some subgroup of the society. The term
"originalist" refers to interpretation concerned with the first three of
these sources.

Principles of Constitutional Interpretation

Introduction
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 a broad and liberal manner giving effect 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. There are basically three types of interpretation of the constitution.

 Historical interpretation

Ambiguities and uncertainties while interpreting the constitutional provisions can be

clarified by referring to earlier interpretative decisions.

 Contemporary interpretation

The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.

 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 inoperative and useless should not be adopted except in the last
resort.

The Supreme Court held in Re Kerala Education Bill[1] 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 Bihar[2], 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 SA[3], 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 Berubari[4], 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 Bharati’s case[5], 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 the 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 literal sense.
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 Severability
5. Principle of territorial nexus
6. Principle of implied 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 competence 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 colourable 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 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.
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.

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 trespass
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 the 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: State of Bombay v. FN Balsara[6]

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.

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 a 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 the commencement of the Constitution. An existing law only becomes eclipsed to
the extent it comes under the shadow of the FR.

Case: Keshavan Madhava Menon v. The State of Bombay[7]

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 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)[8] 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 of 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 Severability

The 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 by Part
III of the Constitution i.e. 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.

Case: AK Gopalan v. State of Madras[9]

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.

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. The 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

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 legislation also

Case: Tata Iron & Steel Company v. Bihar State [10]

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.

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.

Conclusion
The 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 the 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 to the interpretation of an act of the legislature.