This article is written by Akshita Rohatgi, a student of Guru Gobind Singh Indraprastha University, New Delhi. It explains the doctrine of Territorial Nexus, Harmonious Construction, Pith and Substance, Repugnancy and Colourable Legislation with respect to centre-state relations in India.
This article has been published by Diva Rai.
Table of Contents
Introduction
The Seventh Schedule of the Indian Constitution contains three subject lists- Union list for the centre, State list for the states and the Concurrent list for both, the centre as well as the states. The lists lay down the subjects each legislature is competent to legislate on. This well-defined scheme for division of powers is to ensure that no legislature trespasses while exercising its powers and the sanctity of the Constitutional scheme for the division of powers is preserved.
However, the actual working of our Constitution is a bit messier. The water-tight division of powers laid down in the lists is bound to create conflicts since laws tend to deal with more than one subject. When such conflicts arise, the courts take aid from various doctrines to help resolve these conflicts. This article explains the doctrines used, what they stipulate and the nuances of each of these.
Doctrine of Territorial Nexus
Under the Indian conception of federalism, a state law that has operation outside the given state is invalid. The doctrine of territorial nexus is invoked to find out if the law in question has an operation beyond its jurisdiction. This doctrine stipulates that:
- Territory: The object to which a particular law applies does not have to be located within the strict territory of the state. Instead, it needs to have a sufficient territorial connection to the enacting state.
- Subject: There needs to be a territorial nexus between the state enacting the law and the law’s subject matter. The connection must be real and not illusory, as laid down in Shrikant Bhalchandra Karulkar v. State Of Gujarat, 1994. Moreover, the liability imposed must be pertinent and relevant to the connection.
State of Bombay v. RMDC, 1957
In the given case, a lottery was conducted via a newspaper. This newspaper had wide circulation within the State of Bombay, but quite a bit outside the state too. The Bombay Government levied a lump sum tax on lotteries. The tax extended to the circulation and distribution of newspapers that were published outside the state. This tax was challenged in court. The Apex Court reasoned that even though newspapers were published and had wide circulation outside the state, collectors of the entry fees for the competition were within Bombay. Thus, there was sufficient territorial nexus and the tax was held to be valid.
State of Bombay v. Narayandas Mangilal, 1957
In the mid-1950s, the Bombay legislature criminalized bigamous marriages, including marriages entered into outside the state if one party was domiciled in Bombay. In the State of Bombay v. Narayandas Mangilal, (1957), the Supreme court struck down this law due to lack of sufficient territorial nexus concerning marriages performed outside the state, even if one person lived in the state.
Doctrine of Harmonious Construction
The doctrine of harmonious construction applies to cases where provisions of the same statute seem to contradict. The doctrine is based on the presumption that-
- The legislature did not intend to give one provision importance and consequently neglect another; or
- To cause or maintain any contradiction between the two.
This doctrine was profusely explained in the case of Sultana Begum v. Premchand Jain, (1996). The Hon’ble Supreme Court said that these conflicting provisions should be understood in a way to ensure that neither is ignored. In Jagdish Singh v. Lt. Governor, Delhi, (1997), it was held that this doctrine requires reading the statute as a whole construing it in a way in which neither is ineffective.
Shankari Prasad v. Union of India, 1951
Shankari Prasad v. Union of India, (1951) addressed the objective of this doctrine. It said that in the case of two articles that are widely phrased and conflict in their operation, the doctrine of harmonious construction requires them to be controlled and qualified by the other.
Ram Krishan v. Vinod, 1951
In the given case, there was a contradiction between the Representation of the People Act, 1951. Section 33 empowered government servants to nominate candidates seeking election. However, Section 123 prescribed that no government servant can assist any candidate to an election except by way of casting votes.
The Supreme Court harmoniously construed both the provisions. It allowed government servants to nominate as well as vote for candidates. However, no other forms of assistance could be provided.
Bengal Immunity Co. v. State of Bihar, 1955
The given case conceded the limits of this doctrine. It held that in cases of conflict between provisions, they should be construed in a way in which both are effective and in harmony. However, in case this harmony is not possible, the useless provision can be ignored if there is no compulsion of its adoption.
Doctrine of Pith and Substance
Perhaps the most widely applied doctrine, ‘pith and substance’ means the ‘true nature and character’. It is used to determine what the true nature of an enactment is and which list or legislative domain it falls under. To determine this, the court needs to look at:
- The enactment as a whole;
- Its main objects; and
- The effect and scope of its provisions.
If a legislature encroaches on the field of another legislature, the court looks at whether this encroachment is in fact, in substance or merely incidental to the statute. The primary essence and object are differentiated from its ultimate or incidental results.
In determining the true nature, the name given to the statute is immaterial. Even if the purpose laid down in its Statement of Object and Reasons is wrong, it would not per se render the statute invalid. Instead, the statute needs to be viewed as an organic whole.
This doctrine allows some flexibility to the rigid scheme of distribution of powers in the Indian Constitution. The rationale provided is that if every slight or incidental encroachment is struck down, the legislature’s power would be severely curtailed. and it would not be able to carry out its duties.
Premchand Jain v. R.K. Chhabra, 1984
In case the encroachment is merely incidental, the act would not, as a rule, be invalid. This was reiterated in Premchand Jain v. R.K. Chhabra, (1984). The Apex Court held that if an enactment substantially falls within the powers conferred by the Constitution upon the enacting legislature, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature.
State of Bombay v. Narottamdas, 1950
In the given case, it was held that to save the incidental encroachment, it needs to be proven that the pith and substance of the law fall within its enacting legislature. In other words, the validity of the statute is not determined by the degree of encroachment (though it is a relevant consideration) but by the true nature of the enactment. If the pith and substance fall under the enacting legislature’s domain, the law is upheld.
Krishna v. State of Madras, 1956
In 1937, the Madras Prohibition Act was passed. Over a decade later, this act was challenged for laying down procedures and principles of evidence for the trial of the accused. The appellants claimed contradiction between the procedure and principles in the madras act as opposed to the central Criminal Procedure Code, 1973. However, the court upheld the law on the grounds that the given law was simply ancillary to the central one. This law, in pith and substance, was related to intoxicating liquors, a matter under the state list.
The given case embodies a censure of this doctrine. Critics claim it gives the judiciary too much discretion. Courts are empowered to affix their interpretation of the character of law and determine its validity.
Doctrine of Repugnancy
Article 254(1)
Article 254(1) stipulates that if a state law is repugnant, i.e., incompatible with a law that:
- the Parliament is competent to enact, or
- an existing law under the concurrent list.
Then, the central or existing law prevails over one made by the state. The state law is void to the extent of such repugnancy. Which law was enacted earlier is not considered.
In the case of repugnancy, the repugnant provisions of the state law do not become ultra vires. They simply eclipse. If the central law is repealed, they become operative again.
The doctrine of Pith and Substance is utilized to determine if the true nature falls to a matter under the concurrent list. In case the repugnancy is to central law, it is considered if the parliament intended to lay down an exhaustive code on the matter. If not, any qualification or restriction can not be considered repugnant to the state law.
Article 254(2)
However, Article 254(2) can save a state law under the concurrent list if there arises any repugnancy to a central law on the same matter. Presidential assent to the state act would allow it to override any provisions of the central act. However, the inconsistent provisions must be applied to the state only. Moreover, the laws must be on the same matter, not two different fields. If there is no central law on the matter under the concurrent list, the state law would stand.
While obtaining presidential assent, it needs to be specified that assent is sought for repugnancy to a particular act. Failure would make the state law invalid. However, the Parliament can not repeal any state law in the Concurrent list if it is not repugnant to the central law on the same matter.
The Supreme court placed yet another limit on the state act. In Pt. Rishikesh v. Salma Begum (1995), it held that if a state act has received the assent of the President and subsequently, the centre enacts another law conflicting with the state act, the central law would prevail.
Srinivasa Raghavachar v. State of Karnataka, 1987
The present case dealt with a state law restricting legal practitioners from appearing before land tribunals. The state was held invalid on grounds of repugnancy to the Advocates Act, 1961.
Sukumar Mukherjee v. State of West Bengal, 1993
The West Bengal State Health Service Act, (1990) barred any member of the state health service from carrying on private practices. This was disputed in Sukumar Mukherjee v. State of West Bengal, (1993) on the grounds that it was repugnant to the Indian Medical Council Act, 1956. Enacted by the centre under the concurrent list, the 1956 Act allowed any practitioner on the Indian Medical Register to practice in any part of the country.
The Apex Court held that this case was different from the Srinivasa Raghavachar v. State of Karnataka, (1987) case since legal practitioners did not, through a voluntary act of consent, give up the rights to practice for joining the state service. In this case, they did. The state law did not intend to regulate the medical profession in general, only its health service. Thus, the state law was upheld.
Kumar Sharma v. State of Karnataka, 1990
The given case held that repugnancy must only concern a matter in the concurrent list. Additionally, if the subject matters of the legislation were different, they would stand together. However, the dissenting opinion claimed that the two provisions would “run on a collision course”, and be irreconcilable. Thus, the state law must be struck down. The doctrine of Pith and Substance does not need to be applied here.
Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu, 1996
This case is one where repugnancy between a central and state statute is ambiguous. A Tamil Nadu statute dealing with the affiliation of medical colleges was challenged on grounds of repugnance against the Indian Medical Council Act. Both laws were enacted under the concurrent list. However, the provisions of the state act did not collide with the central one and it was possible to follow both.
However, the Court held that the parliament intended to lay down an exhaustive code on the subject for the entire country. This made it repugnant to the state act, which was consequently declared invalid.
Doctrine of Colourable Legislation
The doctrine of Colourable Legislation is based on the maxim ‘what cannot be done directly, cannot be done indirectly’. It restricts legislatures from indirectly doing something which, due to want of jurisdiction, they can not do directly. This encroachment may be direct or indirect. In the case of the latter, the expression ‘colourable legislation’ is applied. In other words, colourable legislation is a ‘fraud on the constitution’.
The court employs the doctrine of Pith and Substance to determine if the legislature is competent to enact the disputed statute. The extent of encroachment is a relevant factor while determining if the enactment is colourable legislation.
State of Bihar v. Kameshwar Singh, 1952
The current case was to dispute the constitutional validity of the Bihar Land Reforms Act, 1950. The law provided that rent for the landlord’s land, before the date of acquisition of his holding, was to vest with the state. However, half of this was to be given to the landlord as compensation.
The Supreme Court opined this was naked confiscation as taking of the whole and returning a half means nothing other than taking half. While its purported object was to lay down principles for compensation, the actual object was simply confiscation- a subject under the concurrent list. The Bihar Land Reforms Act was thus a piece of colourable legislation and hence, void.
Naga People’s Movement for Human Rights v. Union of India, 1997
In this case, the Supreme Court clarified that the doctrine of Colourable Legislation is applicable only in cases where-
- The real intention is camouflaged; and
- With the motive to encroach into the domain of another legislature.
The purpose of legislation may be different from what it appears. However, it is not a case of Colourable Legislation if it does not deal with the competency of the legislature to enact it. The doctrine does not take into account if the law was enacted with bona fide or mala fide motives. The only question that merits consideration is if the substance of a statute falls under the enacting legislature’s domain or not.
Conclusion
Though borrowed from principles and ideas from across the world, the given doctrines were adapted to suit the Indian context. The Indian model of centre-state relations is neither unitary nor federal. It is a hybrid of both, best described by the phrase ‘quasi-federal’. This has caused commenters to remark that the Indian Constitution is ‘federal in structure and unitary in spirit’.
The comment seems to be justified if one looks at the theories of constitutional interpretation with respect to centre-state relations in India. These doctrines are chosen, modified and applied in a way to give the centre’s opinion more weight than the state’s. As we have observed, in cases of infringement of its legislative competence, the doctrines tend to be biased towards the union legislature. This proves that India is ‘a federal state with a unitary bias’.
References
- MP Jain- Universal Indian Constitutional Law (8th edition)
- VN Shukla- Constitution of India (13th Edition)
- DD Basu- Introduction to the constitution of India (22nd Edition)
- Seventh Schedule (mea.gov.in)
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