M.K.E.

S COLLEGE OF LAW

NAME: MANSVI JAGDISH PATEL

CLASS: TY. LL. B

ROLL NO: 139

SUBJECT: I.O.S.

PROFESSOR: MAHENDRAKUMAR S. YADAV

TOPIC: INTERPRETATION OF CONSTITUTION:

1. DOCTRINE OF OCCUPIED FIELD.

2. DOCTRINE OF PITH & SUBSTANCES.
3. DOCTRINE OF TERRITORIAL NEXUS.
4. DOCTRINE OF ECLIPSE.

DATE OF SUBMISSION: 20TH OCTOBER 2021

DOCTRINE OF OCCUPIED FIELD
There is a very thin of line of difference between doctrine of Repugnancy and Doctrine
of Occupied Field. As we know that repugnance arises only if there is an actual conflict between
two legislations, one enacted by the State Legislature and the other by Parliament, both of which
were competent to do so.

On the other hand, doctrine of Occupied Field simply refers to those legislative entries of State
List, which are expressly made ‘subject’ to a corresponding Entry in either the Union List or the
Concurrent List.

Doctrine of Occupied Field has nothing to do with the conflict of laws between the state and the
centre. It is merely concerned with the ‘existence of legislative power’ whereas repugnance is
concerned with the ‘exercise of legislative power’ that is shown to exist.

Doctrine of Occupied Field comes into picture even before the Union Law or the State Law has
commenced. Under Article 254, as soon as a Union law receives assent of the President, it is said
to be ‘a law made by the Parliament’. Actual commencement of the law is not important for the
purpose of attracting doctrine of Occupied Field.

The Curious Case of State of Kerala v. Mar Appraem Kuri

Let us understand this doctrine with the help of a famous case. In the case of State of Kerala &
Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr., the Centre enacted the Chit Funds Act
(Central Act). For the Law to become operative in any state, the Central Government would have
to issue a notification under Section 3 of the Central Act. In the meantime, the State of Kerala
enacted a separate act on ‘Chit Funds’ called as Kerala Chitties Act. However, the Central Act did
not get notified in Kerala resulting into a situation wherein there was only one Act in force in the
State of Kerala i.e. the Kerala Chitties Act. It was contended that the Kerala Chitties Act was
repugnant to the un-Notified Central Act. The Supreme Court held that even an un-notified
Central law attracts art 254.
The reasoning given by the Supreme Court was that the Central Enactment covered the entire
‘field’ of ‘Chit Funds’ under the Concurrent List. Even though the Central Chit Funds Act was not
brought in force in the State of Kerala, it is still a law ‘made’, which is alive as an existing law.

The Court emphasized that Article 254 uses the verb ‘made’ and the ‘making’. Thus, the
‘making’ of a law is complete, even before that law is notified. The court also said that:

“The verb ‘make’ or the verb ‘made’ is equivalent to the expression ‘to legislate’. The
importance of this discussion is to show that the Constitution framers have deliberately used the
word ‘made’ or ‘make’ in the above Articles.

Our Constitution gives supremacy to the Parliament in the matter of making of the laws or
legislating with respect to matters delineated in the three Lists. The principle of supremacy of the
Parliament, the distribution of legislative powers, the principle of exhaustive enumeration of
matters in the three Lists are all to be seen in the context of making of laws and not in the
context of commencement of the laws.”

Thus, the State Legislature is denuded of Legislative Competence as soon as the Parliament, by
enacting the Central Act, intended to occupy the entire field of ‘Chit Funds’ under the
Concurrent List.

Last Word

1. We can easily see that the line of difference between Repugnance and Occupied Field is very
thin. Where Occupied Fields ends, repugnancy starts. Parliament is indeed the supreme Law-
Making body under our Constitutional Scheme. Normally, the Courts try to construe a Central
Law and a State Law harmoniously. However, when the Parliament tries to occupy the field of the
State Law, it is the Central Law that is to prevail.

2. The question of repugnance is separate one. Whether the whole State law or only a particular
provision is repugnant to the Central Law is a question that is to be decided after deciding whether
the Parliament has really occupied the field of the State Law.
3. Once it is made sure that the Parliament intends to legislate over a particular field on which the
State has already legislated, the repugnancy kicks in. To what extent is the repugnancy is a
subjective question.

4. The intention of the Parliament can be either express or implied. Express intention can be
shown explicitly by enacting a Central Law to repeal a State Law. Implied Intention is slightly
more convoluted. Implied Intention can be shown by enacting a Central Law on a subject on
which the State has already legislated. By enacting such a Central Legislation, it will
be implied that the Parliament intends to occupy a particular field and strip the State Legislature
of its power to legislate in this respect.
DOCTRINE OF PITH AND SUBSTANCES

The basic purpose of this doctrine is to determine under which head of power or field i.e. under
which list (given in the Seventh Schedule) a given piece of legislation falls.

Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important

or essential part of something’.

Doctrine of Pith and Substance says that where the question arises of determining whether a
particular law relates to a particular subject (mentioned in one List or another), the court
looks to the substance of the matter. Thus, if the substance falls within Union List, then the
incidental encroachment by the law on the State List does not make it invalid[1].

This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional
Jurisprudence. This doctrine found its place first in the case of Cushing v. Dupey[2]. In this case
the Privy Council evolved the doctrine, that for deciding whether an impugned legislation
was intra vires, regard must be had to its pith and substance.

Need for the Doctrine of Pith and Substance in the Indian Context

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid
scheme of distribution of powers. The reason for adoption of this doctrine is that if every
legislation were to be declared invalid on the grounds that it encroached powers, the powers of the
legislature would be drastically circumscribed.

“It is settled law of interpretation that entries in the Seventh Schedule are not powers but
fields of legislation. The legislature derives its power from Article 246 and other related
articles of the Constitution. Therefore, the power to make the Amendment Act is derived not
from the respective entries but under Article 246 of the Constitution. The language of the
respective entries should be given the widest scope of their meaning, fairly capable to meet
the machinery of the Government settled by the Constitution. Each general word should
extend to all ancillary or subsidiary matters which can fairly and reasonably be
comprehended in it. When the vires of an enactment is impugned, there is an initial
presumption of its constitutionality and if there is any difficulty in ascertaining the limits of
the legislative power, the difficulty must be resolved, as far as possible in favour of the
legislature putting the most liberal construction upon the legislative entry so that it may
have the widest amplitude.”[3]

Incidental or Ancillary Encroachment

The case of Prafulla Kumar Mukherjee v. The Bank of Commerce[4]  succinctly explained the
situation in which a State Legislature dealing with any matter may incidentally affect any Item in
the Union List. The court held that whatever may be the ancillary or incidental effects of a Statute
enacted by a State Legislature, such a matter must be attributed to the Appropriate List according
to its true nature and character.

Thus, we see that if the encroachment by the State Legislature is only incidental in nature, it will
not affect the Competence of the State Legislature to enact the law in question. Also, if the
substance of the enactment falls within the Union List then the incidental encroachment by the
enactment on the State List would not make it invalid[5].

However, the situation relating to Pith and Substance is a bit different with respect to
the Concurrent List. If a Law covered by an entry in the State List made by the State
Legislature contains a provision which directly and substantially relates to a matter enumerated
in the Concurrent List and is repugnant to the provisions of any existing law with respect to
that matter in the Concurrent List, then the repugnant provision in the State List may
be void unless it can coexist and operate without repugnancy to the provisions of the existing
law[6].

Important Supreme Court Judgments on the Doctrine of Pith and Substance

There are hundreds of judgments that have applied this doctrine to ascertain the true nature of a
legislation. In the present post, I will discuss some of the prominent judgments of the Supreme
Court of India that have resorted to this doctrine.

1. The State of Bombay And Another vs F.N. Balsara - This is the first important
judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance. The
court upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true
nature and character of a legislation for the purpose of determining the List under which it falls.

2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors. – The court held
that in order to decide whether the impugned Act falls under which entry, one has to ascertain the
true nature and character of the enactment i.e. its ‘pith and substance’. The court further said
that “it is the result of this investigation, not the form alone which the statute may have
assumed under the hand of the draughtsman, that will determine within which of the
Legislative Lists the legislation falls and for this purpose the legislation must be scrutinized
in its entirety”.

3. Zameer Ahmed Latifur Rehman Sheikh  v. State of Maharashtra and Ors.–

Pith and Substance has been beautifully explained in this case:

“This doctrine is applied when the legislative competence of the legislature with regard to a
particular enactment is challenged with reference to the entries in various lists. If there is a
challenge to the legislative competence, the courts will try to ascertain the pith and
substance of such enactment on a scrutiny of the Act in question. In this process, it is
necessary for the courts to go into and examine the true character of the enactment, its object, its
scope and effect to find out whether the enactment in question is genuinely referable to a field of
the legislation allotted to the respective legislature under the constitutional scheme.

This doctrine is an established principle of law in India recognized not only by this Court, but also
by various High Courts. Where a challenge is made to the constitutional validity of a
particular State Act with reference to a subject mentioned in any entry in List I, the Court
has to look to the substance of the State Act and on such analysis and examination, if it is
found that in the pith and substance, it falls under an entry in the State List but there is only
an incidental encroachment on any of the matters enumerated in the Union List, the State
Act would not become invalid merely because there is incidental encroachment on any of the
matters in the Union List.”
DOCTRINE OF TERRITORIAL NEXUS

Introduction

The term federalism means the division of powers between the centre and state. It is a very
complex mechanism though it is the very purpose for which a federal state is formed includes the
distribution of powers between the union and the centre. Their power is partitioned by the
constitution so that they should their independence over the executive and legislative authority. As
our constitution is of federal structure it establishes dual polity between the union and state. They
are conferred with the sovereign powers which are to be used in a manner directed by the
Constitution. Our   constitution is of is the supreme law of the land provides the basic meaning of
federalism that is the division of powers.

Territorial nexus

Under article 245 of the Indian constitution, it has been stated that

1. Parliament has jurisdiction to make laws for extraterritorial operations or laws for the
whole or any part of the country.

2. The state legislature has the jurisdiction to make laws for the whole or any part of the
state.
Thus it can be said that both the union and the state have their own territorial jurisdiction to make
laws.

Under article 246 it has been stated,

1. Parliament has the explicit power to make laws for the subject matters enumerated in the
union list (list I of the 7th schedule)

2. The state has the power to make laws for the subject matter enumerated in the state list(list
II of the 7th schedule)

3. Both the state and the union have the power to make laws for the subject matter
enumerated in the concurrent list(list III of the 7th schedule)
Under article 245(2) of the Indian constitution, if any law is made by the parliament regarding the
extraterritorial operations, no questions can be raised on its validity. Thus the validity of a
legislation can’t be questioned. In this case, a court is bound to enforce the laws made with
regards to extra-territorial operations. This legislation can’t be invalidated.

Legislative relation between the centre and state

The legislative powers are distributed in two ways which are provisioned by the constitution.

 Distribution of legislative powers in respect of the territory

 With respect to the subject matters of the list under 7th schedule

Distribution of the legislative powers with respect to the territory

As enshrined under article 245(1) of the Indian constitution parliament can make laws for the
whole or any part of the territory of India. Parliament also has extra-territorial jurisdiction for
which it can make laws and these laws can’t be invalidated on the grounds that they have no effect
outside India.

In the case of A.H.Wadia V. Income Tax Commissioner it was held that a question of
extraterritoriality of enactment can never be raised against a supreme legislative authority on the
grounds of questioning its validity. It may not comply with the rules of international law or while
enforcing it practical difficulties may arise but they are subjected to questions of policy which is
the concern of the national or domestic tribunal.

Theory of territorial nexus

In order to give effect to the laws made by a state for extraterritorial purpose, a nexus between the
object and state must be shown. The state legislature has the jurisdiction to make laws within its
territorial jurisdiction. Territorial nexus is one such exception which allows the state to make laws
for extraterritorial operations if it shows that there exists a nexus between the object and the state.

Wallace Bros. And Co. Ltd. vs The Commissioner Of Income

In the instant case, a company which was registered and incorporated in   also which also carried
out its business in India through a sleeping partner. The firm made a staggering profit in that
accounting year. The income tax authorities sought to levy a tax upon the company of the
respondent. The income tax authority was challenged by the respondent, but it was held by the
privy council that there existed the doctrine of territorial nexus and held the tax valid. It is said
that the major part of that income was extracted from British India was the sufficient ground to
establish a territorial nexus.

Territorial Nexus and the State Legislature

Our Constitution confers the power upon the state to make laws within its territorial jurisdiction

Now a question on whether a law falls under the ambit of the state legislature enacting it.

The state legislature is empowered to make laws for its own purpose. The doctrine of territorial
nexus is only applicable when the following conditions are fulfilled. Those conditions are as
follows;

1. The nexus must be legitimate.

2. The liability shall be related to the territorial connection.

These conditions are sufficient enough to show that the nexus was legitimate and the court would
not question its validity. In several cases of the taxation law it has been held that the territorial
limits of a state would not hamper the sale and purchase of the goods. Buying and selling of goods
would be a reasonable ground to sustain the taxing power of the state.

What do you mean by Extra-Territorial Operations?

Parliament is conferred with the power to make laws within its territorial jurisdiction and also for
extra-territorial purpose that has a legitimate nexus with India. Legislation or laws regarding this
matter come under the ambit of the parliament as it has the power to do so. These laws can’t be
questioned on its validity. If the parliament enacts any law which doesn’t establish any nexus with
India will turn out to be ultra vires and would be considered as the laws made for a foreign land.

This can be concluded that if any law passed by the parliament has a real connection with India
can’t be deemed to held as invalid or unconstitutional. If such laws enacted by parliament
establishes no nexus with India would be ultra vires.

Our constitution states that the legislative powers conferred upon the parliament in order to enact
laws within the territorial jurisdiction as well as for the   purpose may take the cognizance of the
extraterritorial purpose and exercise the state powers or the collective powers Doctrine of public
trust states that all the laws enacted by parliament with respect to extraterritorial operations shall
be enacted for the purpose of safeguarding the welfare and security of India, which directly
concludes that no laws shall be made for the extraterritorial operations if there is no nexus of such
law or legislation with India.

The role of territorial nexus in Indian Legislation

As it has been stated before in this article that Article 245 of the Indian constitution states the
extent to which the legislative powers are conferred in parliament and the state legislature in order
to make laws with respect to the territory. Parliament has the power to make laws for the for
which it has the jurisdiction. The jurisdiction of parliament extends to the whole or any part of
India. They can also be enacted by the parliament for extraterritorial operations if there is
sufficient nexus of the law with India. These laws cannot be questioned or held invalidated.
However, all the laws must comply with the provisions of the Indian constitution.

The powers conferred in parliament are not absolute. Laws made by the parliament for
Extraterritorial operations are for the purpose of operating outside the geographical limits of India.
The state legislature doesn’t have the power to make laws for extraterritorial operations. However,
this limitation of the state legislature is subjected to one exception and that is territorial nexus. If it
is established that there is sufficient connection with the object and the laws enacted by the state
legislature will have an effect outside the territorial limits of the state.

The following circumstances are required in order to invoke the jurisdiction of territorial nexus-

 If there exist extraterritorial operations in a state

 If there is legitimate nexus between the object and the state. It should be clear that the
object shall be situated outside the territorial limits of the state but it must have a territorial
connection with the state.

State of Bombay vs R.M.D. Chamarbaugwala

In the instant case, the respondent who was not a resident of Bombay conducted a prize
competition of a crossword puzzle through a newspaper which was printed and published in the
Bangalore. This paper was widely published in Bombay to. For this competition depots were
established so that the forms and fees can be collected. It attracted a lot of buyers for the ticket of
that competition.

The state government then levy take over the respondents company for contesting a prize
competition in the state. The respondent challenged   the supreme court and a question was raised
whether the tax can be levied upon a person who resides outside the territorial limits of the state. It
was held by the supreme court that there was a sufficient territorial nexus and the   legislature has
the authority to tax the respondent for the revenue earned by his company through the prize
competition.

Tata Iron And Steel Company vs. Bihar State Tax Act

The state of Bihar passed sales tax act for levying a tax in on the sales whether it took place within
the territorial limits of the state or outside of that limit, it was also stated that the goods should be
manufactured in the state. In the instant case, it was held that there was an established nexus
between the object which was to be taxed and the law. These are the two essential elements that
constitute the doctrine of territorial nexus.

State of Bihar v. Charusila Dasi

In the instant case, the state of Bihar passed a legislation which dealt with the motive to safeguard
the properties relating to the Hindu religious trusts. This act consists of all the trusts within the
territorial limits of Bihar. So the respondent Madea trust deed several of her properties in situated
in Bihar and Calcutta, and the trust was inside the territorial limits of Bihar. Several questions
were raised about the scope of this act.

It was held that the act passed by the state of Bihar could have the effect over the property situated
outside the territorial limits of Bihar keeping in mind that the trust must be situated with the limits
of the state and there exist the sufficient nexus.

Shrikant Bhalchandra Karulkar v. State of Gujarat

The hon’ble supreme court in this instant case of Shrikant Bhalchandra Karulkar v. State of
Gujarat held  that the state legislature is conferred with the power to enact legislation for extra-
territorial operations complying with the provisions enshrined under article 245 and 246.The laws
made by the state legislature is applicable to a person and his acts within the territorial limits of a
state is not considered as extra territorial.

Conclusion

It can be concluded that the legislative powers has been distributed in two folds between the
centre and state. Federalism is a very complex mechanism though it is the very purpose for which
a federal state is formed includes the distribution of powers between the union and the centre.
Their power is partitioned by the constitution so that they should their independence over the
executive and legislative authority.

As our constitution is of federal structure it establishes dual polity between the union and state.
Parliament has the power to make laws for any or whole part of India as well is conferred with the
power to make laws for extra territorial operations.however, a state  legislature is not competent
enough to make laws for the extraterritorial operations. However there is one exception which
enables the state legislature to make laws for the extra territorial purposes if there exists a
sufficient connection between the object and the state. It means that the object shall be located
outside the territorial limits of the state and has a territorial connection with the state. The scope of
territorial nexus is wide and can be applied outside the territorial limits of India. The doctrine of
territorial nexus allows the effect of law out the territorial limits of a nation.
DOCTRINE OF ECLIPSE

In the case of Keshavan Madhava Menon v. The State of Bombay, the law in question was
an existing law at the time when the Constitution came into force. That existing law imposed on
the exercise of the right guaranteed to the citizens of India by article 19(1)(g) restrictions which
could not be justified as reasonable under clause (6) as it then stood and consequently under
article 13(1)[2] that existing law became void “to the extent of such inconsistency”.

The court said that the law became void not in toto or for all purposes or for all times or for all
persons but only “to the extent of such inconsistency”, that is to say, to the extent it became
inconsistent with the provisions of Part III which conferred the fundamental rights on the
citizens.

This reasoning was also adopted in the case of Bhikaji Narain Dhakras And Others v. The
State Of Madhya Pradesh And Another. This case also held that “on and after the
commencement of the Constitution, the existing law, as a result of its becoming inconsistent with
the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to
stand in the way of the exercise of that fundamental right. Article 13(1) by reason of its
language cannot be read as having obliterated the entire operation of the inconsistent law or
having wiped it out altogether the statute, book. Such law existed for all past transactions
and for enforcement of rights and liabilities accrued before the date of the Constitution. The
law continued in force, even after the commencement of the Constitution, with respect to
persons who were not citizens and could not claim the fundamental right”.

The court also said that article 13(1) had the effect of nullifying or rendering the existing law
which had become inconsistent with fundamental right as it then stood, ineffectual, nugatory and
devoid of any legal force or binding effect, only with respect to the exercise of the fundamental
right on and after the date of the commencement of the Constitution. Finally the court said
something that we today know of as the crux of Doctrine of Eclipse.

“The true position is that the impugned law became, as it were, eclipsed, for the time being, by
the fundamental right.”

We see that such laws are not dead for all purposes. They exist for the purposes of pre-
Constitution rights and liabilities and they remain operative, even after the commencement of the
Constitution, as against non-citizens. It is only as against the citizens that they remain in a
dormant or moribund condition.

Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate
fundamental rights upon the premise that such laws are not null and void ab initio but become
unenforceable only to the extent of such inconsistency with the fundamental rights. If any
subsequent amendment to the Constitution removes the inconsistency or the conflict of the
existing law with the fundamental rights, then the Eclipse vanishes and that particular law
again becomes active again.
CONCLUSION OF THE TOPIC
The 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 the
interpretation of the constitution as well. 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 to the interpretation of an act of the legislature.