Fundamental rights are mentioned from article 12 to article 35 of Indian Constitution. It is not mentioned in the Constitution how to interpret them but the Supreme Court has given some decisions according to which interpretation can be done.
Table of Contents
Introduction
In the constitution of India some parts are interpreted literally and some are interpreted strictly. For example- Water from the state list will be interpreted liberally which include groundwater. States can make laws related to water and any matter incidental to until it comes in conflict with another list.
According to Article 26 of the constitution , which talks about the Freedom to manage its religious affairs, subject to public order, morality and health, every religious denomination shall have the right to handle its religious affairs which includes maintenance of institutions for religious and charitable purpose and managing its own affairs on the basis of the religion.
In Sabarimala case women from 10 to 50 years which are in their menstruating age are not allowed to enter into the temple it will be protected under article 26. But,however it is conflicted and inconsistent to Article 14 as it is the violation of article 15(1) which says that state shall not discriminate any Citizen on the grounds of religion, race,caste, sex, place of work or any of them.[1]
The opening line of article 26- ” subjected to public order, morality and health”, which means that article 26 is not absolute it is subject to restrictions. It was held that the Temple practice of excluding women is unconstitutional. The main Grounds on which Sabarimala cases challenge morality as per article 26 morality is basically the distinction between what is wrong and what is right there is no definite definition of morality. So the Supreme Court interrupted at that time to change the meaning of morality according to the society that what is moral in one country can’t be moral in another country.
According to Analytical School of law, law is the command of the sovereign.Whenever there is a conflict between fundamental rights there is the need to bring the harmony between the fundamental right and the right against which the conflict has been developed but every fundamental right is same and equal but balance should be made while interpreting them.
In K M Nanavati vs State of Maharashtra, it was held that K M Nanavati has done fair by killing the lover of his wife, as the society is not accepting that his wife can have extra marital affair at that time.The case was tried by jury whose favour went to Nanavati as they are representing the society.
Also in Indra Sawhney vs Union of India, it is stated that Article 16(4) grants characterization of backward classes into backward and more backward classes but they cannot be solely distinguished with reference to financial criteria.It is held in Indra Sawhney case the reservation should not exceed 50%. But in 2019, 103rd amendment was made, in that 10% more reservation will be given which makes it 60% reservation which is violating indra sawhney case guidelines and purely on economic basis no reservation should be given.
Giving the reservation of 50% is basic structure but exceeding 50% to 60% is violation of article 16(4) and Indra Sawhney case.
This case states that no amendment can be made to violate the fundamental rights of the constitution.[2]
Centre state legislative relations
Centre and state can have two types of jurisdiction-
Territorial jurisdiction (article 245)–
Territorial jurisdiction is those who can make laws applicable over a certain and specific territory. Parliament that is Centre can make laws for the entire territory of India or for some part of it and the state legislature has the power to make laws for the entire Territory of the state or the part of the State.
Extraterritorial Power is with the government that is they can make laws for people or land which is outside India.
For example –
- Armed force special protection act (AaFSPA) is applicable in Jammu and Kashmir and north eastern states.
- During covid-19 different parts of the state will be treated or governed differently.
Subject matter jurisdiction (article 246 r/w schedule 7)-
Subject matter jurisdiction is the laws which are applicable over a certain subject matter. For example- agriculture, electricity, water projects etc. (subject matter of laws made by Parliament and by the Legislature of the state)
There are three lists-
1.Union list (list I)– It includes those things which are of national importance. Example-self defense, atomic energy etc.
Parliament has the Exclusive power to make laws related to those items.
2.State List (list II)– It includes things which are of local importance or regional importance. For example- agriculture, police.
State has the executive power to make the laws.
3.Concurrent list (list III)– It has items in which the Union and the state can both make the laws. For example- education, marriage,etc.
https://legalreadings.com/doctrine-of-severability/
Interpretation of constitution
Doctrine of territorial nexus-
Laws made by the Parliament for extraterritorial operations are for the purpose of operating outside the geographical limits of India. The state legislation does not have the power to make laws for extraterritorial operation. However, this limitation of state legislators is subjected to one exception and i.e Territorial Nexus.
If it is established that there is sufficient connection between the object and the law enacted by the state legislature then it will have an effect outside the territorial limits of the state.
Following circumstances required for this Doctrine are-
- i) extraterritorial operation in a state
- ii) The object shall be situated outside the territorial limits of the state but it must have territorial connection with the state.
In State of Bombay vs RMD chamarbaugwala, the respondent was not a resident of Bombay conducted a prize competition of Crossword Puzzle through the newspaper which was printed and published in Bangalore. For completion they are giving forms and collecting fees which attracted a lot of buyers.
The state government levy taxes on the respondent for carrying business in the state. The question that comes before the supreme court is that the respondent was from outside the state of body, could the text be levied on him.
The supreme court held that there was a sufficient Territorial Nexus and the respondent has to pay the tax on the revenue he has earned by the competition.
And in the case of the Iron and Steel company versus Bihar state, The state of Bihar passed sales tax act for sale tax. The issue was whether it is under the territorial limits or not. It was also stated in the act that goods should be manufactured in the state only. [3]
It was held that there is a Nexus between the object and the tax so act is valid as Nexus between the object to be detected and the law which are two Essential elements for doctrine of Territorial Nexus.
Doctrine of pith and substance-
It arises when there is a conflict between two list i.e union list and state list or should say when there is the conflict between the subject matter of Union list with the subject matter of the state list, then in this situation doctrine of Pith and substance would be applied.
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 the power that is under which list (which a given in the 7th schedule) should a given piece of legislation will fall.
Both Union and the state list are Supreme. If they both tried to trespass to the field reserved for them, then the court will apply Pith and Substance Doctrine to resolve the conflict and declare the legislation concerned was completed to make the law should be based on the true nature of law.
The main purpose and adoption of this doctrine is to make the Rigid scheme of distribution of powers flexible between the center and the state.
Prafulla Kumar Mukherjee vs Bank of Khulna case talks about the validity of Bengal money lenders Act,1946 was challenged which Limited the amount and the rate of interest recoverable by a money lender on any loan.
It was argued that promissory note was the Centre subject not a state. But it was held that money lending and money lenders is recovered under state list. So, if any state legislation deals accidentally with any matter related to Union list i.e promissory note, it will be valid.[4]
Also in another case of State of Mumbai vs. F.N Balsara, Bombay prohibition Act was challenged which prohibits sales and possession of liquor in the state it was challenged on the ground that it is encroached upon import and export of liquor across frontiers or border which is the Centre issue. The court held that based on the doctrine of pith and substance, “the true nature of law” falls under the state list even if it is encroaching the union list. The Act was held valid even though its impact is on the import of liquor.
In the case of State of Rajasthan vs G Chawla, State of Rajasthan made laws on restricting the use of sound amplifiers. The law was violated by the respondent.The state said that the power to legislate in relation to public health includes power to regulate use of amplifiers as it produces loud noise and it is covered under state list.
But Opposition said that amplifiers come under the Union list,that is Post and Telegraph, telephone, wireless broadcasting and other forms of communication.
But the Court said that it doesn’t follow the Union list as an amplifier is an Apparatus for broadcasting and communication and according to pith and substance it was under state matter and the act is valid.[5]
Doctrine of colourable legislation –
It says that when there is anything prohibited directly, it is also indirectly. If the Constitution does not permit certain provisions of a legislature or any one provision of a legislature, then the provision having the same effect but in the round or indirect manager will be referred as unconstitutional.
The literal meaning of the word colourable legislation is that under a colour or guise of power conferred for one particular purpose, the legislation cannot seek to achieve some other purpose which is otherwise not competent to legislation.
In the case of State of Bihar versus Kameshwar Singh case (which is the only case which stands invalid on the ground of colourable legislation). In this case, the Bihar government had enacted the Bihar Land Reform Act, 1950 which deals with abolition of the landlord system provided for payment of compensation on the basis of income occuring to the land by the Rent.But in reality it did not lay down any such principles. So, on the basis of Bihar Land Reform 1950, the act was held invalid. The doctrine of colourable legislation was applied by this case only.
Now coming to other case i.e K.T Moopil versus state of Kerala, the travancore- Cochin land tax act, 1955 was declared to be unconstitutional in view of article 14 and article 19(1)( f) it was found that person making an income of Rupees 3100 per year was liable to pay rupees 5400 under its operative provision.
So the Supreme Court held that the provisions of the act were confiscatory in nature and reached the conclusion that the Act was a device adopted by legislature to confiscate the property of citizens tax.[6]
Doctrine of repugnancy-
It says that, if even Parliament makes laws on the same subject matter and the states makes it too. Then Article 254 of Indian constitution says that for that particular subject material the law made by Parliament would be valid and the law made by the State will be void.
Article 254 deals when both Union and State lists make laws on the same subject matter then there is the great chance that there will be a conflict. It says that the union will prevail over the state irrespective of which came earlier.
Exception to this doctrine or this rule, was stated in article 254(2) which says that if there is the Law enacted by Parliament and if the state wants to enact the law and knows very well that it will conflict with parliament. It can send it to the president directly if the president gives his consent then the bill can be passed, even if it is inconsistent with the union law.
Conclusion
There are different types of Doctrines which help in the interpretation of different articles of Constitution. In the constitution of India some parts are interpreted literally and some are interpreted strictly. For example- Water from the state list will be interpreted liberally which include groundwater. States can make laws related to water and any matter incidental to until it comes in conflict with another list, that is the reason why different doctrines are used to interpret different articles of the Constitution.
References
[1] Sabarimala Temple Entry, available at : https://www.scobserver.in/court-case/sabrimala-temple-entry-case/plain-english-summary-of-judgment-ee5ae148-9597-479f-84d7-35d398ed5e68.
[2] Indra Sawhney v. Union Of India & Others, AIR 1993 SC 477, 1992 Supp 2 SCR 454.
[3]1956 7 STC 158 Pat.
[4]Prafulla Kumar Mukherjee vs Bank of Khulna case, available at:
http://latestsupremecourtjudgments.blogspot.com/2016/08/doctrine-of-pith-and-substance.html.
[5]1959 AIR 544, 1959 SCR Supl. (1) 904.
[6]Supreme court decision on K.T Moopil versus state of Kerala case, available at:
https://www.lawyerservices.in/Kunnathat-Thathunni-Moopil-Nair-Versus-State-of-Kerala-and-Another-with-connected-petitions-1960-12-09.
BY AKSHITA BANSAL | UPES DEHRADUN