Discuss the principles of Constitutional Interpretation. Explain,
"In the interpretation of constitution, the judicial approach should be
dynamic than static, pragmatic than pedantic, and elastic than rigid".
Describe - Harmonious Construction,
Doctrine of Pith and Substance, Colourable Legislation, Proviso, Doctrine of
Eclipse, Principle of separation. What is the proper function of a proviso? Can
it affect the enacting portion of a section as well?
Introduction
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. As is the case with any other statute, the court tries to
find out the intention of the framers of the constitution from the words used
by them. For example, in the case of State of Bihar vs Kameshwar Singh AIR
1952, SC used one of the standard principles of interpretation that where more
than one reasonable interpretation of a constitutional provision are possible,
that which would ensure a smooth and harmonious working of the constitution
shall be accepted rather than the one that would lead to absurdity or give rise
to practical inconvenience, or make well existing provisions of existing law
nugatory, while interpreting the constitution.However, even if an argument
based on the spirit of the constitution is very attractive, it must be
validated with the spirit of the constitution as reflected by the words of the
constitution. In the same case mentioned above, SC observed that spirit of the
constitution cannot prevail if the language of the constitution does not
support that view.
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. Courts have ruled in cases
such as Jugmendar Das vs State 1951, that not only the general definitions
given in General Clauses Act, but also the general rules of construction given
therein are applicable to the constitution.
Having said the above, the fact remains that Constitution
is a special act. It is a fact that every provision of the constitution is
constitutional and no part of it can be held unconstitutional. This casts an
important duty on the interpreters of the constitution to interpret its
provisions such that the spirit of the constitution is not maligned. In Keshvananda Bharati vs State of Kerala,
AIR 1973, SC identified the basic structure of the constitution that reflects
its true spirit and held that nothing that hurts the basic structure of the
constitution, is constitutional. In the same case, SC held that one should give
the freedom to the parliament to enact laws that ensure that the blessings of
liberty be shared with all, but within the framework of the constitution. It is
necessary towards that end that the constitution should not be construed in a
narrow and pedantic sense.
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.
The following are some of the key principles applied
specially in interpreting the provisions of the constitution -
Principle
of Harmonious construction
Doctrine
of pith and substance
Doctrine
of Colourable legislation
Principle
of Ancillary powers
Principle
of Occupied field
Residuary
power
Doctrine
of repugnancy
Principle
of Territorial Nexus
Doctrine
of stare decisis
Doctrine
of prospective overruling
Principle
of Harmonious Construction
The principle of harmonious interpretation is similar to
the idea of broad or purposive approach. The key to this method of
constitutional interpretation is that provisions of the Constitution should be
harmoniously interpreted. As per Kelly:
“Constitutional provisions should not be construed in
isolation from all other parts of the Constitution, but should be construed as
to harmonize with those other parts.” A provision of the constitution must be
construed and considered as part of the Constitution and it should be given a meaning
and an application which does not lead to conflict with other Articles and
which confirms with the Constitution’s general scheme. When there are two
provisions in a statute, which are in apparent conflict with each other, they
should be interpreted such that effect can be given to both and that
construction which renders either of them inoperative and useless should not be
adopted except in the last resort.
This principle is illustrated in the case of Raj Krishna
vs Binod AIR 1954. In this case, two provisions of Representation of People
Act, 1951, which were in apparent conflict were brought forth. Section 33 (2)
says that a Government Servant can nominate or second a person in election but
section 123(8) says that a Government Servant cannot assist any candidate in
election except by casting his vote. The Supreme Court observed that both these
provisions should be harmoniously interpreted and held that a Government
Servant was entitled to nominate or second a candidate seeking election in
State Legislative assembly. This harmony can only be achieved if Section 123(8)
is interpreted as giving the govt. servant the right to vote as well as to
nominate or second a candidate and forbidding him to assist the candidate it
any other manner.
Upon looking at various cases, the following important
aspects of this principle are evident -
The courts must avoid a head on clash of seemingly
contradicting provisions and they must construe the contradictory provisions so
as to harmonize them.
The provision of one section cannot be used to defeat the
provision contained in another unless the court, despite all its effort, is
unable to find a way to reconcile their differences.
When it is impossible to completely reconcile the
differences in contradictory provisions, the courts must interpret them in such
as way so that effect is given to both the provisions as much as possible.
Courts must also keep in mind that interpretation that
reduces one provision to a useless number or a dead lumbar, is not harmonious
construction.
To harmonize is not to destroy any statutory provision or
to render it otiose.
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. The case of State of
Maharashtra vs F N Balsara AIR 1951 illustrates this principle very nicely. In
this case, 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 that
import 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.
Thus, as held in State of W Bengal vs Kesoram Industries,
2004, the courts have to ignore the name given to the act by the legislature and
must also disregard the incidental and superficial encroachments of the act and
has to see where the impact of the legislation falls. It must then decide the
constitutionality of the act.
Principle
of Incidental or Ancillary Powers
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.
As held in the case of State of Rajasthan vs G Chawla AIR
1959, the power to legislate on a topic includes the power to legislate on an
ancillary matter which can be said to be reasonably included in the topic.
The underlying idea behind this principle is that the
grant of power includes everything necessary to exercise that power. However,
this does not mean that the scope of the power can be extended to any
unreasonable extent. Supreme Court has consistently cautioned against such
extended construction. For example, in R M D Charbaugwala vs State of Mysore,
AIR 1962, SC held that betting and gambling is a state subject as mentioned in
Entry 34 of State list but it does not include power to impose taxes on betting
and gambling because it exists as a separate item as Entry 62 in the same list.
Doctrine
of Colourable Legislation
This doctrine is based on the principle that what cannot
be done directly cannot be done indirectly. In other words, if the constitution
does not permit certain provision of a legislation, any provision that has the
same effect but in a round about manner is also unconstitutional. This doctrine
is found on the wider doctrine of "fraud on the constitution". A
thing is Colourable when it seems to be one thing in the appearance but another
thing underneath. K C Gajapati Narayan
Deo vs State of Orissa, AIR 1953 is a famous case that illustrates the
applicability of this doctrine. 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 colourable 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. In this case, the validity of
Orissa Agricultural Income Tax (Amendment) Act 1950 was in question. The
argument was that it was not a bona fide taxation law but a colourable
legislation whose main motive was to artificially lower the income of the
intermediaries so that the state has to pay less compensation to them under
Orissa Estates Abolition Act, 1952. SC held that it was not colourable
legislation because the state was well within its power to set the taxes, no
matter how unjust it was. The state is also empowered to adopt any method of
compensation. The motive of the legislature in enacting a law is totally
irrelevant.
A contrasting case is of K T Moopil Nair vs State of
Kerala, AIR 1961. In this case, the state imposed a tax under Travencore Cochin
Land Tax Act, 1955, which was so high that it was many times the annual income
that the person was earning from the land. The SC held the act as violative of
Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a
person's property was being confiscated.
Similarly, in Balaji vs State of Mysore, AIR 1963, SC held
that the order reserving 68% of the seats for students belonging to backward
classes was violative of Article 14 in disguise of making a provision under
Article 15(4).
