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Posted October 4, 2013 by advocateguru in Learning Centre
 
 

Relevant Doctrines

To interpret the federal relations between states and the centre there are various doctrines which have evolved over time through various judicial pronouncements and judicial review.

  1. Territorial Nexus

The doctrine has evolved to trace the legality and the validity of the power of the state and the centre to legislate. As mentioned in the Legislative Relations the state or the centre can legislate according to their territorial jurisdiction. According to this doctrine the object of law made need not be physically present in the territory.1

There should be sufficient nexus between the state making the law and the object of the law. The nexus must be real and not illusory. The liability sought to be imposed must be pertinent to that connection.2

  1. Harmonious Construction

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 harmonise 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 Constitutions 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.

  1. Pith and substance

This doctrine comes into picture when the law passed by a legislature encroaches upon another matter. This doctrine helps to know the validity of such a law passed. A law cannot be called invalid just because it encroach another matter if the matter somehow falls within the power of the legislature. Incidental touching is therefore permissible if in pith and substance the legislature is competent to legislate on the matter.

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 Balsara3 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.

  1. Repugnancy

The term ‘Repugnancy’ means inconsistency between the State-made law and the Union-made law. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent, the Central Act will prevail and the State Act will become void in view of the repugnancy.4 

Where, however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 

Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.5 

1Wallace Bros v IT Bombay AIR 1948 PC 118

 

2 State of Bombay v RMDC AIR 1957 SC 699

 

3 AIR 1951

 

4 Zameer Ahemad v State of Maharashtra

 

5M. Karunanidhi v UOI [(1979) 3 SCC 431

 


advocateguru