IMPORTANT CONCEPTS UNDER CONSTITUTIONAL LAW

1. Doctrine of Territorial nexus

Art. 245 of the Constitution says that Parliament has the power of extra-territorial
legislation which means that Parliament will govern not only persons and property
within the territory of India, but also Indian subjects, resident and their property
situated anywhere in the world. Whereas, State laws would be void if it has extra-
territorial operation i.e., takes the effect outside the State. However, there is one
exception to this rule. A State law of extra-territorial operation will be valid when
there is a sufficient nexus between the State and the object.

This Doctrine can be invoked under the following circumstances:

a. Whether a particular State has extra-territorial operation.

b. If there is a territorial nexus between the Subject-matter of the Act and the
State making the law.

State of Bombay v. RMDC

The question before the SC was if the organizer of the competition, who was
outside the State of Bombay, could be validly taxed under the Act made by the
State of Bombay. It was held that there existed a sufficient territorial nexus to
enable the Bombay legislature to tax as all the activities which the competitor took
place was within the Bombay.

2. Doctrine of Pith and Substance:

Pith means "true nature" or "essence" and substance means the essential nature
underlying a phenomenon. Thus, the doctrine of pith and substance relates to
finding out the true nature of a statute. This doctrine is widely used when deciding
whether a state is within its rights to create a statute that involves a subject
mentioned in Union List of the Constitution. The basic idea behind this principle is
that an Act or a provision created by the State is valid if the true nature of the Act
or the provision is about a subject that falls in the State list.

State of Maharashtra vs F N Balsara

The State of Maharashtra passed Bombay Prohibition Act that prohibited the sale
and storage of liquor. This affected the business of the appellant who used to
import liquor. He challenged the Act on the ground thatimport, and export are
the subjects that belong in Union list and state is incapable of making any laws
regarding it. SC rejected this argument and held that the true nature of the Act is
prohibition of alcohol in the State and this subject belongs to the State list. The
court looks at the true character and nature of the Act having regard to the purpose,
scope, objective, and the effects of its provisions. Therefore, the fact that the Act
superficially touches on import of alcohol does not make it invalid.

3. Doctrine of Ancillary and Incidental powers:

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.
However, if a subject is explicitly mentioned in a State or Union list, it cannot
be said to be an ancillary matter. In some cases, it appears that the legislative
subject falls both in Union list and State list. However, if scrutinize carefully, it
becomes clear that it falls merely incidentally in one list but substantially in
another list.

Union of India v. H.S. Thillan

 The Court held that the Court should reconcile the entries and bring harmony
between them. When this is not possible only then the Union law prevails over
the State law.

4. Doctrine of Repugnancy:

If there is an inconsistency of laws between the laws made by the Center and the
State Legislatures and at that time the Doctrine of Repugnancy is applied.
According to Clause (1) of Article 254, if any provision of a State law is repugnant
to a provision in law made by Parliament which it is competent to enact or to any
existing law with respect to or matter in Concurrent List then the parliamentary or
existing law prevails over the State law, and it does not matter whether the
parliamentary law has been enacted before or after the State law.

To the extent of repugnancy, it will be void. Clause (2) of Article 254 provides that
where a law made by a State Legislature with respect to a matter in the Concurrent
List contains any provisions repugnant to the provisions of an earlier parliamentary
law or existing law with respect to that matter, then the State law will prevail in the
State provided it has been reserved for the President’s consideration and has
received his assent.

M. Karunanidhi vs. Union of India

Supreme Court had analyzed all earlier decisions and summarized the test of
repugnancy. According to the Court a repugnancy would arise between the two
statutes of the State and the Union in the following situations:
(1) It must be shown that there is clear and direct inconsistency between the two
enactments (Union Act and State Act) which is irreconcilable, so that they cannot
stand together or operate in the same field.

(2) There can be no repeal by implication unless the inconsistency appears on the
face of the two statutes.

5. Doctrine of Colorable legislation:

This doctrine is based on the principle that what cannot be done directly cannot
be done indirectly. A thing is Colorable when it seems to be one thing in the
appearance but another thing underneath.

K C Gajapati Narayan Deo vs State of Orissa

In this case, SC observed that the constitution has clearly distributed the legislative
powers to various bodies, which have to act within their respective spheres. These
limitations are marked by specific legislatives entries or in some cases these
limitations are imposed in the form of fundamental rights of the constitution.
Question may arise whether while enacting any provision such limits have been
transgressed or not. Such transgression may be patent, manifest or direct. But it
may also be covert, disguised, or indirect. It is to this later class of transgression
that the doctrine of colorable legislation applies. In such case, although the
legislation purports to act within the limits of its powers, yet in substance and in
reality, it transgresses those powers. The transgression is veiled by mere pretense
or disguise. But the legislature cannot be allowed to violate the constitutional
prohibition by an indirect method.
6. Delegated Legislation:
Delegatus non potest Delegare. It means “no delegated powers can be further
delegated.”
Causes:
1. Pressure on parliamentary time
2. Unforeseen Contingency
3. Technicality in subject matter
4. Emergency power
5. Opportunity of experimentation

In re Delhi Laws Act

SC rejected the contention of govt. that unlimited delegation is inherent in the
legislative power.

Control:

1. Judicial Control: Competence or Ultravires

2. Parliamentary Control: There is a Committee on sub-ordinate delegation. The
committee decides whether the delegation is proper.

CASE ANALYSIS

SUPREME COURT OF INDIA VS. SUBASH CHANDRA AGARWAL [2019 SCC

1459]

FACTS:

The bench examined a batch of three civil appeals raising questions of

constitutional importance bearing on the right to know, the right to privacy and the
transparency, accountability and independence of the judiciary. In the first appeal,
the respondent sought information relating to complete correspondence between
the then CJI and Justice R Reghupati of the Madras High Court in 2009, following
a story in The Times of India that a Union minister had approached the latter
through a lawyer, to influence his judicial decisions.

In the second appeal, the respondent sought details of Collegium file notings
relating to appointment of Justice HL Dattu, Justice AK Ganguly and Justice RM
Lodha to the Supreme Court.

In the third appeal, the respondent sought information concerning declaration of

assets made by the puisne judges of the Supreme Court to the CJI, and the judges
of the High Courts to the chief justices of the respective High Courts. The
administrative wing of the Supreme Court was the appellant in all the three.

PROCEDURAL HISTORY:

The application filed by Subash Chandra Agarwal was rejected by the CPIO,
Supreme Court on the ground that the matter is not their jurisdiction and it will be
available with the Registry of Supreme Court. First appeal was dismissed by the
Appellate Authority. On the further appeal, the Central information commission
has directed the disclosure of the information. Aggrieved CPIO filed an appeal
before the Supreme Court of India.

ISSUES:

The questions that were decided in this case are:

1. Whether the respondent had any ‘right to information’ under Section 2(j) of
the RTI Act, 2005 in respect of the information regarding making of
declarations by the Judges of Supreme Court pursuant to 1997 Resolution?
 2. Whether the CJI held the information in his ‘fiduciary capacity’ within the
meaning of the expression used in Section 8(1) (e) of the Act?
3. Whether the information about the declaration of assets by the Judges of the
Supreme Court is exempt from the disclosure under the provision of Section
8(1) (j) of the Act?

RULES:

The relevant provisions of the case are as following:

a. Sections 2,6,8 of the RTI Act, 2005

b. 1997 Resolution w.r.t asset declaration

ANALYSIS:

The five-judge bench of Chief Justice Ranjan Gogoi, Justice NV Ramana, Justice
DY Chandrachud, Justice Deepak Gupta and Justice Sanjiv Khanna pronounced
the verdict with a 3:2 majority. The questions were answered in favour of the
respondent as it was held that the respondent had right to information under
Section 2(j) of the RTI Act with regard to the information in the form of assets
declaration made pursuant to 1997 Resolution.

The Court found that the Chief Justice’s office is a “public authority” within the
meaning of the Right to Information (RTI) Act as it performs numerous
administrative functions in addition to its adjudicatory role. Access to information
it held was therefore regulated by the Act. The Court emphasized that information
pertaining to submitted declarations and their contents constitutes “information”
within the meaning of Section 2 (f) of the Act.

The CPIO argued that assuming that asset declarations constituted “information”
under the Act, disclosure would breach a fiduciary duty owed to the judges. The
rule of confidentiality of asset declarations was also found in the 1997 Resolution.
The Court dismissed this argument pointing out that the CJI could not be a
fiduciary vis-à-vis judges of the Supreme Court because judges held independent
office and neither their affairs nor conduct was controlled by the CJI. As to the
confidentiality of information, the Court highlighted that the “mere marking of a
document, as ‘confidential’, in this case, did not undermine the overbearing nature
of the Act”.

CHEBROLU LEELA PRASAD RAO VS. STATE OF ANDHRA PRADESH

FACTS:

The present case was a challenge to the Government order passed by the State of
AP providing 100% reservation to the Scheduled Tribe candidates out of whom
33.1/3% shall be women for the post of teachers in the schools in the scheduled
areas in the State of Andhra Pradesh.

PROCEDURAL HISTORY:

The 2000 government order was challenged before the High Court of Andhra
Pradesh, which had upheld its validity. The appeal then came to the Supreme Court
and was ultimately heard by a Constitution Bench.

ISSUES:

1. Whether 100% Reservation is permissible under the Constitution?

 2. Whether the notification merely contemplates a classification under Article
16(1) and not reservation Article 16 (4)?
3. What is the scope of Paragrah 5 of Schedule V of the Constitution?

RULES:

The relevant Provisions are:

a. Article 14, 16 of the Constitution

b. Schedule 5 of the Constitution

ANALYSIS:

The Court also held that the notification in question cannot be treated as
classification made under Article 16(1). Once the reservation has been provided to
Scheduled Tribes under Article 16(4), no such power can be exercised under
Article 16(1). The notification is violative of Articles 14 and 16(4) of the
Constitution of India.

It, further, held that the conditions of eligibility in the notification with a cutoff
date, i.e., 26.1.1950, to avail the benefits of reservation, were also unreasonable
and arbitrary.

“The power to make new laws/regulations, is provided in Para 5(2), Fifth

Schedule of the Constitution for the purpose mentioned therein, not under
Para 5(1) of the Fifth Schedule to the Constitution of India.”