GVK INDS. LTD Vs THE INCOME TAX OFFICER
Bench: S.H. KAPADIA,B. SUDERSHAN REDDY,K.S. PANICKER RADHAKRISHNAN,SURINDER SINGH NIJJAR,SWATANTER KUMAR
Case number: C.A. No.-007796-007796 / 1997
Diary number: 11291 / 1997
Advocates: GAGRAT AND CO Vs
SUSHMA SURI
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7796 OF 1997
GVK INDS. LTD. & ANR. …APPELLANTS
VERSUS
THE INCOME TAX OFFICER & ANR. …RESPONDENTS
JUDGEMENT
B.SUDERSHAN REDDY,J:
1. In any federal or quasi federal nation-state, legislative
powers are distributed territorially, and legislative competence is
often delineated in terms of matters or fields. The latter may be
thought of as comprising of aspects or causes that exist
independently in the world, such as events, things, phenomena
(howsoever commonplace they may be), resources, actions or
transactions, and the like, that occur, arise or exist or may be
expected to do so, naturally or on account of some human
agency, in the social, political, economic, cultural, biological,
1
environmental or physical spheres. The purpose of legislation
would be to seek the exertion of the State power to control,
modulate, transform, eliminate or engender such aspects or
causes or the effects or consequences of such aspects or causes.
While the purpose of legislation could be seen narrowly or purely
in terms of intended effects on such aspects or causes, obviously
the powers have to be exercised in order to enhance or protect
the interests of, the welfare of, the well-being of, or the security
of the territory, and the inhabitants therein, for which the
legislature has been charged with the responsibility of making
laws. Paraphrasing President Abraham Lincoln, we can say that
State and its government, though of the people, and constituted
by the people, has to always function “for” the people, indicating
that the mere fact that the state is organized as a democracy
does not necessarily mean that its government would always act
“for” the people. Many instances of, and vast potentialities for,
the flouting of that norm can be easily visualized. In
Constitutions that establish nation-states as sovereign
democratic republics, those expectations are also transformed
into limitations as to how, in what manner, and for what
purposes the collective powers of the people are to be used.
2
2. The central constitutional themes before us relate to
whether the Parliament’s powers to legislate, pursuant to Article
245, include legislative competence with respect to aspects or
causes that occur, arise or exist or may be expected to do so,
outside the territory of India. It is obvious that legislative powers
of the Parliament incorporate legislative competence to enact
laws with respect to aspects or causes that occur, arise or exist,
or may be expected to do so, within India, subject to the division
of legislative powers as set forth in the Constitution. It is also
equally obvious and accepted that only Parliament may have the
legislative competence, and not the state legislatures, to enact
laws with respect to matters that implicate the use of state
power to effectuate some impact or effect on aspects or causes
that occur, arise or exist or may be expected to do so, outside
the territory of India.
3. Two divergent, and dichotomous, views present themselves
before us. The first one arises from a rigid reading of the ratio in
Electronics Corporation of India Ltd., v. Commissioner of Income
Tax & An’r.,1 (“ECIL”) and suggests that Parliaments powers to
1 (1989) (2) SCC 642-646
3
legislate incorporate only a competence to enact laws with
respect to aspects or causes that occur, arise or exist, or may be
expected to do so, solely within India. A slightly weaker form of
the foregoing strict territorial nexus restriction would be that the
Parliament’s competence to legislate with respect to extra-
territorial aspects or causes would be constitutionally permissible
if and only if they have or are expected to have significant or
sufficient impact on or effect in or consequence for India. An
even weaker form of the territorial nexus restriction would be
that as long as some impact or nexus with India is established or
expected, then the Parliament would be empowered to enact
legislation with respect to such extra-territorial aspects or
causes. The polar opposite of the territorial nexus theory, which
emerges also as a logical consequence of the propositions of the
learned Attorney General, specifies that the Parliament has
inherent powers to legislate “for” any territory, including
territories beyond India, and that no court in India may question
or invalidate such laws on the ground that they are extra-
territorial laws. Such a position incorporates the views that
Parliament may enact legislation even with respect to extra-
territorial aspects or causes that have no impact on, effect in or
4
consequence for India, any part of it, its inhabitants or Indians,
their interests, welfare, or security, and further that the purpose
of such legislation need not in any manner or form be intended to
benefit India.
4. Juxtaposing the two divergent views outlined above, we
have framed the following questions:
(1) Is the Parliament constitutionally restricted from
enacting legislation with respect to extra-territorial aspects
or causes that do not have, nor expected to have any,
direct or indirect, tangible or intangible impact(s) on, or
effect(s) in, or consequences for: (a) the territory of India,
or any part of India; or (b) the interests of, welfare of,
wellbeing of, or security of inhabitants of India, and
Indians?
(2) Does the Parliament have the powers to legislate “for”
any territory, other than the territory of India or any part of
it?
5
5. It is necessary to note the text of Article 245 and Article 1
at this stage itself:
“Article 245. Extent of laws made by Parliament and by the Legislatures of States – (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra- territorial operation.”
“Article 1. Name and territory of the Union – (1) India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the First Schedule. (3) The territory of India shall comprise –
(a) The territories of the States;
(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.”
II
Meanings of some phrases and expressions used hereinafter:
6. Many expressions and phrases, that are used contextually
in the flow of language, involving words such as “interest”,
“benefit”, “welfare”, “security” and the like in order to specify the
purposes of laws, and their consequences can, have a range of
6
meanings. In as much as some of those expressions will be used
in this judgment, we are setting forth below a range of meanings
that may be ascribable to such expressions and phrases:
“aspects or causes” “aspects and causes”:
events, things, phenomena (howsoever commonplace they may be), resources, actions or transactions, and the like, in the social, political, economic, cultural, biological, environmental or physical spheres, that occur, arise, exist or may be expected to do so, naturally or on account of some human agency.
“extra-territorial aspects or causes”:
aspects or causes that occur, arise, or exist, or may be expected to do so, outside the territory of India.
“nexus with India”, “impact on India”, “effect in India”, “effect on India”, “consequence for India” or “impact on or nexus with India”
any impact(s)on, or effect(s) in, or consequences for, or expected impact(s) on, or effect(s) in, or consequence(s) for: (a) the territory of India, or any part of India; or (b)the interests of, welfare of, wellbeing of or security of inhabitants of India, and Indians in general, that arise on account of aspects or causes.
“benefit to India” or “for the benefit of India”, “to the benefit of India”, “in the benefit of India” or “ to benefit India” or “the interests of India”, “welfare of India”, “well-being of India” etc.:
7
protection of and/or enhancement of the interests of, welfare of, well-being of, or the security of India (i.e., the whole territory of India), or any part of it, its inhabitants and Indians.
III
Factual Background as to how the matter arose before us.
7. The Appellant by way of a writ petition filed in Andhra Pradesh
High Court had challenged an order of the Respondents which
decided that the Appellant was liable to withhold a certain portion of
monies being paid to a foreign company, under either one of
Sections 9(1)(i) or 9(1)(vii)(b) of the Income Tax Act (1961). The
Appellant had also challenged the vires of Section 9(1)(vii)(b) of the
Income Tax Act (1961) for want of legislative competence and
violation of Article 14 of the Constitution. The High Court having
upheld that Section 9(1)(i) did not apply in the circumstances of the
facts of the case, nevertheless upheld the applicability of Section
9(1)(vii)(b) on the facts and also upheld the constitutional validity
of the said provision. The High Court mainly relied on the ratio of
the judgment by a three judge bench of this court in ECIL. Hence,
the appeal.
8
8. The matter came up for consideration before a two judge
bench of this Court. In light of the far reaching issues of great
constitutional purport raised in this matter, the fact that such issues
had been raised previously in ECIL, the referencing of some of
those issues by the three judge bench in ECIL to a constitutional
bench, and the fact that the civil appeals in the ECIL case had also
been withdrawn, a two judge bench of this Court vide its order
dated November 28, 2000, also referred the instant matter to a
constitutional bench. On July 13, 2010, the matter again came up
for consideration before another three judge bench of this court,
and vide its order of the same date, this matter came to be placed
before us.
9. It is necessary for purposes of clarity that a brief recounting
be undertaken at this stage itself as to what was conclusively
decided in ECIL, and what was referred to a constitutional bench.
After conclusively determining that Clauses (1) and (2) of Article
245, read together, impose a requirement that the laws made by
the Parliament should bear a nexus with India, the three judge
bench in ECIL asked that a constitutional bench be constituted to
consider whether the ingredients of the impugned provision, i.e.,
9
Section 9(1)(vii) of the Income Tax Act (1961) indicate such a
nexus. In the proceedings before us, the appellant withdrew its
challenge of the constitutional validity of Section 9(1)(vii)(b) of the
Income Tax Act (1961), and elected to proceed only on the factual
matrix as to the applicability of the said section. Nevertheless, the
learned Attorney General appearing for the Respondent pressed
upon this Constitutional Bench to reconsider the decision of the
three judge bench in the ECIL case. In light of the constitutional
importance of the issues we agreed to consider the validity of the
requirement of a relationship to or nexus with the territory of India
as a limitation on the powers of the Parliament to enact laws
pursuant to Clause (1) of Article 245 of the Constitution.
10. A further clarification needs to be made before we proceed.
The issue of whether laws that deal entirely with aspects or
causes that occur, arise or exist, or may be expected to do so,
within India, and yet require to be operated outside the territory
of India could be invalidated on the grounds of such extra-
territorial operation is not before us. The text of Clause (2) of
Article 245, when read together with Clause (1) of Article 245
makes it sufficiently clear that the laws made by the Parliament
10
relating to aspects or causes that occur, arise or exist or may be
expected to occur, arise or come into existence within the
territory of India may not be invalidated on the ground that such
laws require to be operated outside the territory of India. We will
of course deal with this aspect to the extent that it is required for
a proper appreciation of Clause (1) of Article 245, and to the
extent the permissibility of such extra-territorial operation has
been sought to be, by the learned Attorney General, extrapolated
into a power to make any extra-territorial laws.
IV
The ratio in ECIL:
11. The requirement of a nexus with the territory of India was first
explicitly articulated in the decision by a three judge Bench of this
court in ECIL. The implication of the nexus requirement is that a
law that is enacted by the Parliament, whose “objects” or
“provocations” do not arise within the territory of India, would be
unconstitutional. The words “object” and “provocation”, and their
plural forms, may be conceived as having been used in ECIL as
synonyms for the words “aspect” and “cause”, and their plural
forms, as used in this judgment.
11
12. The issue under consideration in ECIL was whether Section
9(1)(vii)(b) of the Income Tax Act (1961) was unconstitutional
on the ground that it constitutes a law with respect to objects or
provocations outside the territory of India, thereby being ultra-
vires the powers granted by Clause (1) of Article 245.
Interpreting Clauses (1) and (2) of Article 245, Chief Justice
Pathak (as he then was) drew a distinction between the phrases
“make laws” and “extraterritorial operation” – i.e., the acts and
functions of making laws versus the acts and functions of
effectuating a law already made.
12. In drawing the distinction as described above, the decision
in ECIL considered two analytically separable, albeit related,
issues. They relate to the potential conflict between the fact that,
in the international context, the “principle of Sovereignty of
States” (i.e., nation-states) would normally be “that the laws
made by one State can have no operation in another State” (i.e.,
they may not be enforceable), and the prohibition in Clause (2)
of Article 245 that laws made by the Parliament may not be
invalidated on the ground that they may need to be or are being
operated extra-territorially.
12
13. The above is of course a well recognized problem that has
been grappled with by courts across many jurisdictions in the
world; and in fact, many of the cases cited by the learned
Attorney General attest to the same. Relying on the ratio of
British Columbia Railway Company Limited v. King,2 the principle
that was enunciated in ECIL was that the problems of inability to
enforce the laws outside the territory of a nation state cannot be
grounds to hold such laws invalid. It was further held that the
courts in the territory of the nation-state, whose legislature
enacted the law, ought to nevertheless order that a law requiring
extra-territorial operation be implemented to the extent possible
with the machinery available. It can of course be clearly
appreciated that the said principle falls within the ambit of the
prohibition of Clause (2) of Article 245. The same was stated by
Chief Justice Pathak (as he then was) thus:
“Now it is perfectly clear that it is envisaged under our constitutional scheme that Parliament in India may make laws which operate extra-territorially. Art. 245(1) of the Constitution prescribes the extent of laws made by the Parliament. They may be made for the whole or any part of the territory of India. Article 245(2) declares that no law made by the Parliament
2 [1946] A.C. 527
13
shall be deemed to be invalid on the ground that it would have extra-territorial operation. Therefore, a Parliamentary statute having extra-territorial operation cannot be ruled out from contemplation. The operation of the law can extend to persons, things and acts outside the territory of India”3 (emph. added).
14. However, the principle enunciated above does not address
the question as to whether the Parliament may enact a law “for”
a territory outside the boundaries of India. To enact laws “for” a
foreign territory could be conceived of in two forms. The first
form would be, where the laws so enacted, would deal with or be
in respect of extra-territorial aspects or causes, and the laws
would seek to control, modulate or transform or in some manner
direct the executive of the legislating State to act upon such
extra-territorial aspects or causes because: (a) such extra-
territorial aspects or causes have some impact on or nexus with
or to India; and (b) such laws are intended to benefit India. The
second form would be when the extra-territorial aspects do not
have, and neither are expected to have, any nexus whatsoever
with India, and the purpose of such legislation would serve no
purpose or goal that would be beneficial to India.
3 Supra note 1.
14
15. It was concluded in ECIL that the Parliament does not have
the powers to make laws that bear no relationship to or nexus
with India. The obvious question that springs to mind is: “what
kind of nexus?” Chief Justice Pathak’s words in ECIL are
instructive in this regard, both as to the principle and also the
reasoning:
“But the question is whether a nexus with something in India is necessary. It seems to us that unless such nexus exists Parliament will have no competence to make the law. It will be noted that Article 245(1) empowers Parliament to enact laws for the whole or any part of the territory of India. The provocation for the law must be found within India itself. Such a law may have extra-territorial operation in order to subserve the object, and that object must be related to something in India. It is inconceivable that a law should be made by parliament which has no relationship with anything in India.”4 (emphasis added).
16. We are of the opinion that the distinction drawn in ECIL
between “make laws” and “operation” of law is a valid one, and
leads to a correct assessment of the relationship between
Clauses (1) and (2) of Article 245. We will have more to say
4 Supra note 1.
15
about this, when we turn our attention to the propositions of the
learned Attorney General.
17. We are, in this matter, concerned with what the implications
might be, due to use of words “provocation”, “object”, “in” and
“within” in connection with Parliament’s legislative powers
regarding “the whole or any part of the territory of India”, on the
understanding as to what aspects and/or causes that the
Parliament may legitimately take into consideration in exercise of
its legislative powers. A particularly narrow reading or
understanding of the words used could lead to a strict territorial
nexus requirement wherein the Parliament may only make laws
with respect to objects or provocations – or alternately, in terms
of the words we have used “aspects and causes” – that occur,
arise or exist or may be expected to occur, arise or exist, solely
within the territory of India, notwithstanding the fact that many
extra-territorial objects or provocations may have an impact or
nexus with India. Two other forms of the foregoing territorial
nexus theory, with weaker nexus requirements, but differing as
to the applicable tests for a finding of nexus, have been noted
earlier.
16
V
The Propositions of the learned Attorney General:
18. It appeared that the learned Attorney General was
concerned by the fact that the narrow reading of Article 245,
pace the ratio in ECIL, could significantly incapacitate the one
legislative body, the Parliament, charged with the responsibility
of legislating for the entire nation, in dealing with extra-territorial
aspects or causes that have an impact on or nexus with India.
India has a parliamentary system of governance, wherein the
Executive, notwithstanding its own domain of exclusive
operation, is a part of, and answerable to, the Parliament.
Further, given that the Executive’s powers are co-extensive with
that of the Parliament’s law making powers, such a narrow
reading of Article 245 could significantly reduce the national
capacity to make laws in dealing with extra-territorial aspects
that have an impact on or nexus with India. Clearly, that would
be an anomalous construction.
19. In attacking such a construction, the learned Attorney
General appeared to have moved to another extreme. The
17
written propositions of the learned Attorney General, with respect
to the meaning, purport and ambit of Article 245, quoted
verbatim, were the following:
1. “There is clear distinction between a Sovereign Legislature and a Subordinate Legislature.
2. It cannot be disputed that a Sovereign Legislature has full power to make extra-territorial laws.
3. The fact that it may not do so or that it will exercise restraint in this behalf arises not from a Constitutional limitation on its powers but from a consideration of applicability.
4. This does not detract from its inherent rights to make extra-territorial laws.
5. In any case, the domestic Courts of the country cannot set aside the legislation passed by a Sovereign Legislature on the ground that it has extra-territorial effect or that it would offend some principle of international law.
6. The theory of nexus was evolved essentially from Australia to rebut a challenge to Income Tax laws on the ground of extra-territoriality.
7. The principle of nexus was urged as a matter of construction to show that the law in fact was not extra-territorial because it had a nexus with the territory of the legislating State.
8. The theory of nexus and the necessity to show the nexus arose with regard to State Legislature under the Constitution since the power to make extra- territorial laws is reserved only for the Parliament”.
18
21. In as much as the issues with regard to operation of laws
enacted by the various state legislatures are not before us, we
decline to express our opinion with respect to historical
antecedents of nexus theory in the context of division of powers
between a federation and the federal provinces. Given the fact
that the learned Attorney General has not further refined or
explicated the propositions as set forth above, we are compelled
to assume that he intended us to take it that the Parliament
should be deemed to have the powers and competence as set
forth below, which arise out of a rigorous analysis of his
propositions, and consequently examine them in light of the text
of Article 245.
22. The main propositions are that the Parliament is a
“sovereign legislature”, and that such a “sovereign legislature
has full power to make extra-territorial laws.” They can be
analysed in the following two ways:
(i) As a matter of first level of assessment, the phrase “full power to make extra-territorial laws” would implicate the competence to legislate with respect to extra-territorial aspects or causes that have an impact
19
on or nexus with India, wherein the State machinery is directed to achieve the goals of such legislation by exerting force on such extra-territorial aspects or causes to modulate, change, transform, eliminate or engender them or their effects. At the next level, such powers would also implicate legislative competence to make laws that direct the state machinery, in order to achieve the goals of such legislation, to exert force on extra-territorial aspects or causes that do not have any impact on or nexus with India to modulate, change, transform, eliminate or engender them or their effects. We take it that the learned Attorney General has proposed that both the forms outlined above are within the constitutionally permissible limits of legislative powers and competence of the Parliament.
(ii) The same proposition can also be viewed from the perspective of the goals that such “extra-territorial laws” seek to accomplish, and the relationship of such goals to the territory for which such laws are intended to affect, as well as India. Modern jurisprudence, and not just international law or international ethics, does not support the view that legislative commands that are devoid of justice can be given the status of being “law”. The extent of abuse of the theory of “rule of law”, in its absolutist sense, in history, and particularly in the 20th Century, has effectively undermined the legitimacy of the notion that whatever the purpose that law seeks to achieve is justice. Consequently, we will assume that the learned Attorney General did not mean that Parliament would have powers to enact extra-territorial laws with respect to foreign territories that are devoid of justice i.e., they serve no benefits to the denizens of such foreign territories. Arguably India, as a nation-state, has not been established, nor has it developed, with an intent to be an expansionary or an imperialist power on the international stage; consequently we will also not be examining the proposition that the extra- territorial laws enacted the Parliament, and hence
20
“for” that foreign territory, could be exploitative of the denizens of another territory, and yet be beneficial to India in its narrow sense. A valid argument can also be made that such an exploitative situation would be harmful to India’s moral stature on the international plane, and also possibly deleterious to international peace, and consequently damaging to India’s long run interests. To the extent that extra-territorial laws enacted have to be beneficial to the denizens of another territory, three implications arise. The first one is when such laws do benefit the foreign territory, and benefit India too. The second one is that they benefit the denizens of that foreign territory, but do not adversely affect India’s interests. The third one would be when such extra-territorial laws benefit the denizens of the foreign territory, but are damaging to the interests of India. We take it that the learned Attorney General has proposed that all three possibilities are within constitutionally permissible limits of legislative powers and competence of the Parliament.
23. The further proposition of the learned Attorney General, is
that courts in India do not have the powers to declare the “extra-
territorial laws” enacted by the Parliament invalid, on the ground
that they have an “extra-territorial effect”, notwithstanding the
fact: (a) that such extra-territorial laws are with respect to extra-
territorial aspects or causes that have no impact on or nexus with
India; (b) that such extra-territorial laws do not in any manner or
form work to, or intended to be or hew to the benefit of India;
and (c) that such extra-territorial laws might even be detrimental
21
to India. The word “extra-territorial-effect” is of a much wider
purport than “extra-territorial operation”, and would also be
expected to include within itself all the meanings of “extra-
territorial law” as explained above. The implication of the
proposed disability is not merely that the judiciary, under our
constitution, is limited from exercising the powers of judicial
review, on specific grounds, over a clearly defined set of laws,
with a limited number of enactments; rather, it would be that the
judiciary would be so disabled with regard to an entire universe
of laws, that are undefined, and unspecified. Further, the
implication would also be that the judiciary has been stripped of
its essential role even where such extra-territorial laws may be
damaging to the interests of India.
24. In addition the learned Attorney General has also placed
reliance on the fact that the Clause 179 of the Draft Constitution,
was split up into two separate clauses, Clause 179(1) and Clause
179(2), by the Constitution Drafting Committee, and adopted as
Clauses (1) and (2) of Article 245 in the Constitution. It seemed
to us that the learned Attorney General was seeking to draw two
inferences from this. The first one seemed to be that the Drafting
22
Committee intended Clause 179(2), and hence Clause (2) of
Article 245, to be an independent, and a separate, source of
legislative powers to the Parliament to make “extra-territorial
laws”. The second inference that we have been asked to make is
that in as much as Parliament has been explicitly permitted to
make laws having “extra-territorial operation”, Parliament should
be deemed to possess powers to make “extra-territorial laws”,
the implications of which have been more particularly explicated
above. The learned Attorney General relied on the following case
law in support his propositions and arguments: Ashbury v. Ellis5,
Emmanuel Mortensen v. David Peters6, Croft v. Dunphy7, British
Columbia Electric Railway Company Ltd. V. The King8, Governor
General in Council v. Raleigh Investment Co. Ltd.9, Wallace
Brothers and Co. v. Commissioner of Income Tax, Bombay10,
A.H. Wadia v. Commissioner of Income Tax, Bombay11 and State
v. Narayandas Mangilal Dayame,12 Rao Shiv Bahadur v. State of
5 [1893] A.C. 339 6 [1906] 8 F (J.) 93 7 [1933] A.C. 156 8 [1946] A.C. 527 9 [1944] 12 ITR 265 10 [1948] 16 ITR 240 11 [1949] 17 ITR 63 12 AIR 1958 Bom 68.
23
Vindhya Pradesh,13 Clark v. Oceanic Contractors Inc.,14 Shrikant
Bhalchandra v. State of Gujarat,15 and State of A.P. v. N.T.P.C.16
VI
Constitutional Interpretation:
25. We are acutely aware that what we are interpreting is a
provision of the Constitution. Indeed the Constitution is law, in its
ordinary sense too; however, it is also a law made by the people
as a nation, through its Constituent Assembly, in a foundational
and a constitutive moment. Written constitutions seek to
delineate the spheres of actions of, with more or less strictness,
and the extent of powers exercisable therein by, various organs
of the state. Such institutional arrangements, though political at
the time they were made, are also legal once made. They are
legal, inter-alia, in the sense that they are susceptible to judicial
review with regard to determination of vires of any of the actions
of the organs of the State constituted. The actions of such organs
are also justiciable, in appropriate cases, where the values or the
scheme of the Constitution may have been transgressed. Hence
13 AIR 1953 SC 394 14 [1983] A.C. 130 15 (1994) 5 SCC 459 16 (2002) 5 SCC 203
24
clarity is necessary with respect to the extent of powers granted
and the limits on them, so that the organs of the State charged
with the working of the mandate of the Constitution can proceed
with some degree of certitude.
26. In such exercises we are of the opinion that a liberal and
more extensive interpretative analysis be undertaken to ensure
that the court does not, inadvertently and as a consequence of
not considering as many relevant issues as possible,
unnecessarily restrict the powers of another coordinate organ of
the State. Moreover, the essential features of such
arrangements, that give the Constitution its identity, cannot be
changed by the amending powers of the very organs that are
constituted by it. Under our Constitution, while some features are
capable of being amended by Parliament, pursuant to the
amending power granted by Article 368, the essential features –
the basic structure – of the Constitution is beyond such powers of
Parliament. The power to make changes to the basic structure of
the Constitution vests only in the people sitting, as a nation,
through its representatives in a Constituent Assembly. (See
25
Keshavanadna Bharati v. State of Kerala17 and I.R. Coelho v.
State of Tamil Nadu18). One of the foundational elements of the
concept of basic structure is it would give the stability of purpose,
and machinery of government to be able to pursue the
constitutional vision in to the indeterminate and unforeseeable
future.
27. Our Constitution charges the various organs of the state
with affirmative responsibilities of protecting the interests of, the
welfare of and the security of the nation. Legislative powers are
granted to enable the accomplishment of the goals of the nation.
The powers of judicial review are granted in order to ensure that
legislative and executive powers are used within the bounds
specified in the Constitution. Consequently, it is imperative that
the powers so granted to various organs of the state are not
restricted impermissibly by judicial fiat such that it leads to
inabilities of the organs of the State in discharging their
constitutional responsibilities. Powers that have been granted,
and implied by, and borne by the Constitutional text have to be
perforce admitted. Nevertheless, the very essence of
17 (1973) 4 SCC 225 18 (2007) 2 SCC 1
26
constitutionalism is also that no organ of the state may arrogate
to itself powers beyond what is specified in the Constitution.
Walking on that razors edge is the duty of the judiciary. Judicial
restraint is necessary in dealing with the powers of another
coordinate branch of the government; but restraint cannot imply
abdication of the responsibility of walking on that edge.
28. In interpreting any law, including the Constitution, the text
of the provision under consideration would be the primary source
for discerning the meanings that inhere in the enactment.
However, in light of the serious issues it would always be
prudent, as a matter of constitutional necessity, to widen the
search for the true meaning, purport and ambit of the provision
under consideration. No provision, and indeed no word or
expression, of the Constitution exists in isolation – they are
necessarily related to, transforming and in turn being
transformed by, other provisions, words and phrases in the
Constitution. Our Constitution is both long and also an intricate
matrix of meanings, purposes and structures. It is only by
locating a particular constitutional provision under consideration
within that constitutional matrix could one hope to be able to
27
discern its true meaning, purport and ambit. As Prof. Laurence
Tribe points out:
“[T]o understand the Constitution as a legal text, it is essential to recognize the… sort of text it is: a constitutive text that purports, in the name of the people….., to bring into being a number of distinct but inter-related institutions and practices, at once legal and political, and to define the rules governing those institutions and practices.” (See: Reflections on Free- Form Method in Constitutional Interpretation) 19
29. It has been repeatedly appreciated by this Court that our
Constitution is one of the most carefully drafted ones, where
every situation conceivable, within the vast experience, expertise
and knowledge of our framers, was considered, deliberated upon,
and appropriate features and text chosen to enable the organs of
the State in discharging their roles. While indeed dynamic
interpretation is necessary, if the meaning necessary to fit the
changed circumstances could be found in the text itself, we
would always be better served by treading a path as close as
possible to the text, by gathering the plain ordinary meaning,
and by sweeping our vision and comprehension across the entire
19 108 Harv. L. Rev. 1221, 1235 (1995).
28
document to see whether that meaning is validated by
constitutional values and scheme.
30. However, it can also be appreciated that given the
complexity and the length of our Constitution, the above task
would be gargantuan. One method that may be adopted would
be to view the Constitution as composed of constitutional
topological spaces. Each Part of the Constitution deals with
certain core functions and purposes, though aspects outside such
a core, which are contextually necessary to be included, also find
place in such Parts. In the instant case Chapter 1, Part XI, in
which Article 245 is located, is one such constitutional topological
space. Within such a constitutional topological space, one would
expect each provision therein to be intimately related to,
gathering meaning from, and in turn transforming the meaning
of, other provisions therein. By locating the transformative
effects within such constitutional topological space, we would
then be able to gather what the core, and untransformed
features are. However, this method needs to be carefully used –
constitutional topological spaces are not to be taken as water
tight compartments, which when studied in isolation would return
29
necessarily unerring truths about the Constitution. The potential
that a transformative, or even a confirmative, understanding can
emerge directly from any other part of the Constitution is
something that we must always be cognizant of. Nevertheless, to
the extent that the Constitution has been arranged in a particular
manner by our framers, thereby giving us some guide posts for
navigation of the text and its implications for our socio-political
lives, such constitutional topological spaces, when primarily used
for validation of unambiguous textual meanings, would ease our
epistemological burdens.
VII
Textual Analysis of Article 245:
31. Prior to embarking upon a textual analysis of Clauses (1)
and (2) of Article 245, it is also imperative that we bear in mind
that a construction of provisions in a manner that renders words
or phrases therein to the status of mere surplussage ought to be
avoided.
32. The subject in focus in the first part of Clause (1) of Article
245 is “the whole or any part of the territory of India”, and the
30
object is to specify that it is the Parliament which is empowered
to make laws in respect of the same. The second part of Clause
(1) of Article 245 deals with the legislative powers of State
legislatures.
33. The word that links the subject, “the whole or any part of
the territory of India” with the phrase that grants legislative
powers to the Parliament, is “for”. It is used as a preposition. The
word “for”, when ordinarily used as a preposition, can signify a
range of meanings between the subject, that it is a preposition
for, and that which preceded it:
“-prep 1 in the interest or to the benefit of; intended to go to; 2 in defence, support or favour of 3 suitable or appropriate to 4 in respect of or with reference to 5 representing or in place of….. 14. conducive or conducively to; in order to achieve…” (See: Concise Oxford English Dictionary)20
34. Consequently, the range of senses in which the word “for”
is ordinarily used would suggest that, pursuant to Clause (1) of
Article 245, the Parliament is empowered to enact those laws
that are in the interest of, to the benefit of, in defence of, in
20 8th Ed., OUP (Oxford, 1990).
31
support or favour of, suitable or appropriate to, in respect of or
with reference to “the whole or any part of the territory of India”.
35. The above understanding comports with the contemporary
understanding, that emerged in the 20th Century, after hundreds
of years of struggle of humanity in general, and nearly a century
long struggle for freedom in India, that the State is charged with
the responsibility to always act in the interest of the people at
large. In as much as many extra-territorial aspects or causes
may have an impact on or nexus with the nation-state, they
would legitimately, and indeed necessarily, be within the domain
of legislative competence of the national parliament, so long as
the purpose or object of such legislation is to benefit the people
of that nation state.
36. The problem with the manner in which Article 245 has been
explained in the ratio of ECIL relates to the use of the words
“provocation”, and “object” as the principal qualifiers of “laws,”
and then specifying that they need to arise “in” or “within” India.
The word “provocation” generally implies a cause - i.e., an
inciting or a motivating factor - for an action or a reaction that
seeks to control, eliminate, mitigate, modulate or otherwise
32
transform both the independently existing aspects in the world
and also their effects which had provoked or provokes the action
or reaction. “Provocation” may also be used, in a proactive
sense, to signify the end or goal sought to be achieved rather
than in the reactive sense – as a response to independently
occurring aspects in the world. Similarly, the word “object” can
mean any aspect that exists independently in the world, of which
a human agency takes cognizance of, and then decides to take
some action. In this sense the word “object” would carry the
same meaning as “provocation” in the first sense of that word
delineated above. The word “object” can also mean the end goal
or purpose to be achieved by an action or a reaction to an
independent aspect or cause in the world. In legal discourse,
particularly in the task of interpreting statutes, and the law, the
said words could be used in both the senses. The tools of
“purposive interpretation” and the “mischief rule” ought to come
to mind.
37. Consequently, the ratio of ECIL could wrongly be read to
mean that both the “provocations” and “objects” – in terms of
independent aspects or causes in the world - of the law enacted
33
by Parliament, pursuant to Article 245, must arise solely “in” or
“within” the territory of India. Such a narrowing of the ambit of
Clause (1) of Article 245 would arise by substituting “in” or
“within”, as prepositions, in the place of “for” in the text of Article
245. The word “in”, used as a preposition, has a much narrower
meaning, expressing inclusion or position within limits of space,
time or circumstance, than the word “for”. The consequence of
such a substitution would be that Parliament could be deemed to
not have the powers to enact laws with respect to extra-
territorial aspects or causes, even though such aspects or causes
may be expected to have an impact on or nexus with India, and
laws with respect to such aspects or causes would be beneficial
to India.
38. The notion that a nation-state, including its organs of
governance such as the national legislature, must be concerned
only with respect to persons, property, things, phenomenon, acts
or events within its own territory emerged in the context of
development of nation-states in an era when external aspects
and causes were thought to be only of marginal significance, if at
all. This also relates to early versions of sovereignty that
34
emerged along with early forms of nation-states, in which
internal sovereignty was conceived of as being absolute and
vested in one or some organs of governance, and external
sovereignty was conceived of in terms of co-equal status and
absolute non-interference with respect to aspects or causes that
occur, arise or exist, or may be expected to do so, in other
territories. Oppenheim’s International Law21 states as follows:
“The concept of sovereignty was introduced and developed in political theory in the context of the power of the ruler of the state over everything within the state. Sovereignty was, in other words, primarily a matter of internal constitutional power…. The 20th
century has seen the attempt, particularly through the emergence in some instances of extreme nationalism, to transpose this essentially internal concept of sovereignty on to the international plane. In its extreme forms such a transposition is inimical to the normal functioning and development of international law and organization. It is also inappropriate….. no state has supreme legal power and authority over other states in general, nor are states generally subservient to the legal power and authority of other states. Thus the relationship of states on the international plane is characterized by their equality, independence, and in fact, by their interdependence.”
39. On account of scientific and technological developments the
magnitude of cross border travel and transactions has increased
21 Vol 1, “PEACE” 9th ed., page 125, 9 (Longman Group, UK, 1992).
35
tremendously. Moreover, existence of economic, business, social
and political organizations and forms, of more or less
determinate structure, and both recognized and unrecognized,
that operate across borders, implies that their activities, even
though conducted in one territory may have an impact on or in
another territory. Externalities arising from economic activities,
including but not limited to large scale exploitation of natural
resources, and consequent pressure on delicate global
environmental balance, are being recognized to be global in
scope and impact. Global criminal and terror networks are also
examples of how events and activities in a territory outside one’s
own borders could affect the interests, welfare, well-being and
security within. Many other examples could also be adduced. For
instance, the enablement, by law, of participation of the State in
many joint, multilateral or bilateral efforts at coordination of
economic, fiscal, monetary, trade, social, law enforcement
activities, reduction of carbon emissions, prevention or mitigation
of war in another region or maintenance of peace and security,
etc., may be cited as additional examples of such inter-territorial
dependence.
36
40. Within international law, the principles of strict territorial
jurisdiction have been relaxed, in light of greater
interdependencies, and acknowledgement of the necessity of
taking cognizance and acting upon extra-territorial aspects or
causes, by principles such as subjective territorial principle,
objective territorial principle, the effects doctrine that the United
States uses, active personality principle, protective principle etc.
However, one singular aspect of territoriality remains, and it was
best stated by Justice H.V. Evatt: “The extent of extra-territorial
jurisdiction permitted, or rather not forbidden, by international
law cannot always be stated with precision. But certainly no
State attempts to exercise jurisdiction over matters, persons, or
things with which it has absolutely no concern.” (See Trustees
Executors & Agency Co Ltd v. Federal Commissioner of
Taxation22). The reasons are not too far to grasp. To claim the
power to legislate with respect to extra-territorial aspects or
causes, that have no nexus with the territory for which the
national legislature is responsible for, would be to claim dominion
over such a foreign territory, and negation of the principle of self-
determination of the people who are nationals of such foreign
22 (1933) 49 CLR. 220 at 239
37
territory, peaceful co-existence of nations, and co-equal
sovereignty of nation-states. Such claims have, and invariably
lead to, shattering of international peace, and consequently
detrimental to the interests, welfare and security of the very
nation-state, and its people, that the national legislature is
charged with the responsibility for.
41. Because of interdependencies and the fact that many extra-
territorial aspects or causes have an impact on or nexus with the
territory of the nation-state, it would be impossible to conceive
legislative powers and competence of national parliaments as
being limited only to aspects or causes that arise, occur or exist
or may be expected to do so, within the territory of its own
nation-state. Our Constitution has to be necessarily understood
as imposing affirmative obligations on all the organs of the State
to protect the interests, welfare and security of India.
Consequently, we have to understand that the Parliament has
been constituted, and empowered to, and that its core role would
be to, enact laws that serve such purposes. Hence even those
extra-territorial aspects or causes, provided they have a nexus
with India, should be deemed to be within the domain of
38
legislative competence of the Parliament, except to the extent
the Constitution itself specifies otherwise.
42. A question still remains, in light of the extreme conclusions
that may arise on account of the propositions made by the
learned Attorney General. Is the Parliament empowered to enact
laws in respect of extra-territorial aspects or causes that have no
nexus with India, and furthermore could such laws be bereft of
any benefit to India? The answer would have to be no.
43. The word “for” again provides the clue. To legislate for a
territory implies being responsible for the welfare of the people
inhabiting that territory, deriving the powers to legislate from the
same people, and acting in a capacity of trust. In that sense the
Parliament belongs only to India; and its chief and sole
responsibility is to act as the Parliament of India and of no other
territory, nation or people. There are two related limitations that
flow from this. The first one is with regard to the necessity, and
the absolute base line condition, that all powers vested in any
organ of the State, including Parliament, may only be exercised
for the benefit of India. All of its energies and focus ought to only
39
be directed to that end. It may be the case that an external
aspect or cause, or welfare of the people elsewhere may also
benefit the people of India. The laws enacted by Parliament may
enhance the welfare of people in other territories too;
nevertheless, the fundamental condition remains: that the
benefit to or of India remain the central and primary purpose.
That being the case, the logical corollary, and hence the second
limitation that flows thereof, would be that an exercise of
legislative powers by Parliament with regard to extra-territorial
aspects or causes that do not have any, or may be expected to
not have nexus with India, transgress the first condition.
Consequently, we must hold that the Parliament’s powers to
enact legislation, pursuant to Clause (1) of Article 245 may not
extend to those extra-territorial aspects or causes that have no
impact on or nexus with India.
44. For a legislature to make laws for some other territory
would be to act in a representative capacity of the people of such
a territory. That would be an immediate transgression of the
condition that the Parliament be a parliament for India. The word
“for”, that connects the territory of India to the legislative powers
40
of the Parliament in Clause (1) of Article 245, when viewed from
the perspective of the people of India, implies that it is “our”
Parliament, a jealously possessive construct that may not be
tinkered with in any manner or form. The formation of the State,
and its organs, implies the vesting of the powers of the people in
trust; and that trust demands, and its continued existence is
predicated upon the belief, that the institutions of the State shall
always act completely, and only, on behalf of the people of India.
While the people of India may repose, and continue to maintain
their trust in the State, notwithstanding the abysmal conditions
that many live in, and notwithstanding the differences the people
may have with respect to socio-political choices being made
within the country, the notion of the collective powers of the
people of India being used for the benefit of some other people,
including situations in which the interests of those other people
may conflict with India’s interests, is of an entirely different
order. It is destructive of the very essence of the reason for
which Parliament has been constituted: to act as the Parliament
for, and only of, India.
41
45. The grant of the power to legislate, to the Parliament, in
Clause (1) of Article 245 comes with a limitation that arises out
of the very purpose for which it has been constituted. That
purpose is to continuously, and forever be acting in the interests
of the people of India. It is a primordial condition and limitation.
Whatever else may be the merits or demerits of the Hobbesian
notion of absolute sovereignty, even the Leviathan, within the
scope of Hobbesian logic itself, sooner rather than later, has to
realize that the legitimacy of his or her powers, and its actual
continuance, is premised on such powers only being used for the
welfare of the people. No organ of the Indian State can be the
repository of the collective powers of the people of India, unless
that power is being used exclusively for the welfare of India.
Incidentally, the said power may be used to protect, or enhance,
the welfare of some other people, also; however, even that goal
has to relate to, and be justified by, the fact that such an
exercise of power ultimately results in a benefit – either moral,
material, spiritual or in some other tangible or intangible manner
– to the people who constitute India.
42
46. We also derive interpretational support for our conclusion
that Parliament may not legislate for territories beyond India
from Article 51, a Directive Principle of State Policy, though not
enforceable, nevertheless fundamental in the governance of the
country. It is specified therein that:
“Article 51. Promotion of international peace and security-“State shall endeavour to –
(a)to promote international peace and security; (b)maintain just and honourable relations
between nations; (c)foster respect for international law and treaty
obligations in the dealings of organized peoples with one another; and
(d)encourage settlement if international disputes by arbitration.”
47. To enact legislation with respect to extra-territorial aspects
or causes, without any nexus to India, would in many measures
be an abdication of the responsibility that has been cast upon
Parliament as above. International peace and security has been
recognised as being vital for the interests of India. This is to be
achieved by India maintaining just and honourable relations, by
fostering respect for international and treaty obligations etc., as
recognized in Article 51. It is one matter to say that because
certain extra-territorial aspects or causes have an impact on or
nexus with India, Parliament may enact laws with respect to such
43
aspects or causes. That is clearly a role that has been set forth in
the Constitution, and a power that the people of India can claim.
How those laws are to be effectuated, and with what degree of
force or diplomacy, may very well lie in the domain of pragmatic,
and indeed ethical, statecraft that may, though not necessarily
always, be left to the discretion of the Executive by Parliament.
Nevertheless, that position is very different from claiming that
India has the power to interfere in matters that have no nexus
with India at all. To claim such powers, would be to make such
powers available. Invariably available powers are used, and in
this case with a direct impact on the moral force of India, and its
interests, welfare and security, by shattering the very concepts
that under-gird peace between nations. By recognizing
international peace to be sine qua non for India’s welfare and
security, the framers have charged the State, and all of its
organs, with responsibility to endeavour to achieve the goals set
forth in Article 51. To claim the power to legislate for some other
territories, even though aspects or causes arising, occurring or
existing there have no connection, to India would be to demolish
the very basis on which international peace and security can be
premised.
44
48. For the aforesaid reasons we are unable to agree that
Parliament, on account of an alleged absolute legislative
sovereignty being vested in it, should be deemed to have the
powers to enact any and all legislation, de hors the requirement
that the purpose of such legislation be for the benefit of India.
The absolute requirement is that all legislation of the Parliament
has to be imbued with, and at the core only be filled with, the
purpose of effectuating benefits to India. This is not just a matter
of the structure of our Constitution; but the very foundation.
49. The arguments that India inherited the claimed absolute or
illimitable powers of the British parliament are unacceptable. One
need not go into a lengthy or academic debate about whether in
fact the British parliament always did, or as a matter of absolute
necessity needs to, possess such powers. There is a healthy
debate about that, casting serious doubts about the legal efficacy
of such arguments. (See Chapter 2: “The Sovereignty of
Parliament – in Perpetuity?”, by A.W. Bradley in The Changing
Constitution, Ed. Jowell & Oliver23 and Studies in Constitutional
Law by Colin R. Munro24). It is now a well accepted part of our 23 2nd Ed. Clarendon Press, Oxford (1989) 24 2nd Ed. Butterworths, OUP (2005).
45
constitutional jurisprudence that by virtue of having a written
constitution we have effectively severed our links with the
Austinian notion that law as specified by a sovereign is
necessarily just, and the Diceyan notion of parliamentary
sovereignty. It is the Constitution that is supreme, with true
sovereignty vesting in the people. In as much as that true
sovereign has vested some of their collective powers in the
various organs of the state, including the Parliament, there
cannot be the legal capacity to exercise that power in a manner
that is not related to their interests, benefits, welfare and
security.
50. We now turn our attention to other arguments put forward
by the learned Attorney General with regard to the implications
of permissibility of making laws that may operate extra-
territorially, pursuant to Clause (2) of Article 245. In the first
measure, the learned Attorney General seems to be arguing that
the act and function of making laws is the same as the act and
function of “operating” the law. From that position, he also seems
to be arguing that Clause (2) of Article 245 be seen as an
independent source of power. Finally, the thread of that logic
46
then seeks to draw the inference that in as much as Clause (2)
prohibits the invalidation of laws on account of their extra-
territorial operation, it should be deemed that the courts do not
have the power to invalidate, - i.e., strike down as ultra vires -,
those laws enacted by Parliament that relate to any extra-
territorial aspects or causes, not withstanding the fact that many
of such aspects or causes have no impact on or nexus with India.
51. It is important to draw a clear distinction between the acts
& functions of making laws and the acts & functions of operating
the laws. Making laws implies the acts of changing and enacting
laws. The phrase operation of law, in its ordinary sense, means
the effectuation or implementation of the laws. The acts and
functions of implementing the laws, made by the legislature, fall
within the domain of the executive. Moreover, the essential
nature of the act of invalidating a law is different from both the
act of making a law, and the act of operating a law. Invalidation
of laws falls exclusively within the functions of the judiciary, and
occurs after examination of the vires of a particular law. While
there may be some overlap of functions, the essential cores of
the functions delineated by the meanings of the phrases “make
47
laws” “operation of laws” and “invalidate laws” are ordinarily and
essentially associated with separate organs of the state – the
legislature, the executive and the judiciary respectively, unless
the context or specific text, in the Constitution, unambiguously
points to some other association.
52. In Article 245 we find that the words and phrases “make
laws” “extra-territorial operation”, and “invalidate” have been
used in a manner that clearly suggests that the addressees
implicated are the legislature, the executive and the judiciary
respectively. While Clause (1) uses the verb “make” with respect
to laws, thereby signifying the grant of powers, Clause (2) uses
the past tense of make, “made”, signifying laws that have
already been enacted by the Parliament. The subject of Clause
(2) of Article 245 is the law made by the Parliament, pursuant to
Clause (1) of Article 245, and the object, or purpose, of Clause
(2) of Article 245 is to specify that a law so made by the
Parliament, for the whole or any part of territory of India, should
not be held to be invalid solely on the ground that such laws
require extra-territorial operation. The only organ of the state
which may invalidate laws is the judiciary. Consequently, the text
48
of Clause (2) of Article 245 should be read to mean that it
reduces the general and inherent powers of the judiciary to
declare a law ultra-vires only to the extent of that one ground of
invalidation. One thing must be noted here. In as much as the
judiciary’s jurisdiction is in question here, an a-priori, and a
strained, inference that is unsupported by the plain meaning of
the text may not be made that the powers of the legislature to
make laws beyond the pale of judicial scrutiny have been
expanded over and above that which has been specified. The
learned Attorney General is not only seeking an interpretation of
Article 245 wherein the Parliament is empowered to make laws
“for” a foreign territory, which we have seen above is
impermissible, but also an interpretation that places those
vaguely defined laws, which by definition and implication can
range over an indefinite, and possibly even an infinite number, of
fields beyond judicial scrutiny, even in terms of the examination
of their vires. That would be contrary to the basic structure of the
Constitution.25
25 Supra note 18.
49
53. Clause (2) of Article 245 acts as an exception, of a
particular and a limited kind, to the inherent power of the
judiciary to invalidate, if ultra-vires, any of the laws made by any
organ of the State. Generally, an exception can logically be read
as only operating within the ambit of the clause to which it is an
exception. It acts upon the main limb of the Article – the more
general clause - but the more general clause in turn acts upon it.
The relationship is mutually synergistic in engendering the
meaning. In this case, Clause (2) of Article 245 carves out a
specific exception that a law made by Parliament, pursuant to
Clause (1) of Article 245, for the whole or any part of the
territory of India may not be invalidated on the ground that such
a law may need to be operated extraterritorially. Nothing more.
The power of the judiciary to invalidate laws that are ultra-vires
flows from its essential functions, Constitutional structure, values
and scheme, and indeed to ensure that the powers vested in the
organs of the State are not being transgressed, and that they are
being used to realise a public purpose that subserves the general
welfare of the people. It is one of the essential defences of the
people in a constitutional democracy.
50
54. If one were to read Clause (2) of Article 245 as an
independent source of legislative power of the Parliament to
enact laws for territories beyond India wherein, neither the
aspects or causes of such laws have a nexus with India, nor the
purposes of such laws are for the benefit of India, it would
immediately call into question as to why Clause (1) of Article 245
specifies that it is the territory of India or a part thereof “for”
which the Parliament may make laws. If the power to enact laws
for any territory, including a foreign territory, were to be read
into Clause (2) of Article 245, the phrase “for the whole or any
part of the territory of India” in Clause (1) of Article 245 would
become a mere surplassage. When something is specified in an
Article of the Constitution it is to be taken, as a matter of initial
assessment, as nothing more was intended. In this case it is the
territory of India that is specified by the phrase “for the whole or
any part of the territory of India.” “Expressio unius est exclusio
alterius”- the express mention of one thing implies the exclusion
of another. In this case Parliament has been granted powers to
make laws “for” a specific territory – and that is India or any part
thereof; by implication, one may not read that the Parliament
51
has been granted powers to make laws “for” territories beyond
India.
55. The reliance placed by the learned Attorney General on the
history of changes to the pre-cursors of Article 245, in the Draft
Constitution, in support of his propositions is also inapposite. In
fact one can clearly discern that the history of changes, to Clause
179 of the Draft Constitution (which became Article 245 in our
Constitution), supports the conclusions we have arrived at as to
the meaning, purport and ambit of Article 245. The first iteration
of Clause 179 of the Draft Constitution read, in part, as follows:
“Subject to the provisions of this Constitution, the Federal
Parliament may make laws, including laws having extra-territorial
operation, for the whole or any part of the territories of the
Federation……” Clearly the foregoing iteration shows that what
was under consideration were the entire class of laws that the
Parliament was to be empowered to make “for the whole or any
part of the territories of the Federation…..”, and included within
that class were the laws “having extra-territorial operation.”
Subsequently Clause 179 of the Draft Constitution was split into
two separate clauses 179 (1) and 179(2). The learned Attorney
52
General’s arguments suggest that the conversion of Draft Clause
179 into two separate draft clauses, 179(1) and 179(2), should
be interpreted to mean that the framers of the Constitution
intended the two clauses to have a separate existence,
independent of each other. We are not persuaded. The retention
of the phrase “extra-territorial operation” as opposed to the
phrase “extra-territorial laws” implies that the drafters were
acutely aware of the difference between the meaning of the
phrase “operation of law” and the “making of law”. Further, by
beginning Clause (2) of Article 245 with the phrase “No law made
by the Parliament…”, it is clear that the drafting committee
intended to retain the link with Clause (1) of Article 245. (See:
The Framing of India’s Constitution, by The Project Committee,
Chairman B. Shiva Rao)26 Thus we cannot view Clause (2) of
Article 245 as an independent source of legislative powers on
account of the history of various iterations of the pre-cursor to
Article 245 in the Constituent Assembly.
VIII
Analysis of Constitutional Topological Space: Chapter 1, Part XI:
26 Vol. 3, Universal Law Publichsing Co.
53
56. We now turn to Chapter 1 Part XI, in which Article 245 is
located, to examine other provisions that may be expected to
transform or be transformed by the meaning of Article 245 that
we have discerned and explained above. In particular, the search
is also for any support that may exist for the propositions of the
learned Attorney General that the Parliament may make laws for
any territory outside India.
57. As is well known, Article 246 provides for the division of
legislative competence, as between the Parliament and the State
legislatures, in terms of subjects or topics of legislation. Clauses
(1), (2) and (3) of Article 246 do not mention the word territory.
However, Clause (4) of Article 246 specifies that Parliament has
the power to “make laws for any part of the territory of India not
included in a State” with respect to any matter, notwithstanding
that a particular matter is included in the State List. In as much
as Clause (1) of Article 245 specifies that it is for “the whole or
any part of the territory of India” with respect of which
Parliament has been empowered to make laws, it is obvious that
in Article 246 legislative powers, whether of Parliament or of
54
State legislatures, are visualized as being “for” the territory of
India or some part of it.
58. Article 248 provides for the residuary power of legislation.
However, in this instance, the Constitution speaks of the powers
of Parliament in terms of the subject matters or fields of
legislative competence not enumerated in Concurrent and State
lists in the Seventh Schedule, etc. Article 248 does not mention
any specific territory. Nevertheless, in as much as it retains the
link to Article 246, it can only be deemed that the original
condition that all legislation be “for” the whole or some territory
of India has been retained.
59. It would be pertinent to note, at this stage that List I –
Union List of the Seventh Schedule clearly lists out many matters
that could be deemed to implicate aspects or causes that arise
beyond the territory of India. In particular, but not limited to,
note may be made of Entries 9 through 21 thereof. Combining
the fact that the Parliament has been granted residuary
legislative powers and competence with respect to matters that
are not enumerated in Concurrent and State Lists, vide Article
248, the fact that Parliament has been granted legislative powers
55
and competence over various matters, as listed in List I of the
Seventh Schedule, many of which may clearly be seen to be
falling in the class of extra-territorial aspects or causes, vide
Article 246, and the powers to make laws “for the whole or any
part of the territory of India”, vide Article 245, we must conclude
that, contrary to the rigid reading of the ratio in ECIL,
Parliament’s legislative powers and competence with respect to
extra-territorial aspects or causes that have a nexus with India
was considered and provided for by the framers of the
Constitution. Further, in as much as Article 245, and by
implication Articles 246 and 248, specify that it is “for the
whole or any part of the territory of India” that such legislative
powers have been given to the Parliament, it logically follows
that Parliament is not empowered to legislate with respect to
extra-territorial aspects or causes that have no nexus whatsoever
with India. To the extent that some of the implications of
learned Attorney General’s propositions only reach such a limited
reading of the legislative powers of the Parliament, which
nevertheless are not as restricted as the narrow understanding of
the ratio in ECIL may suggest, we are in partial agreement with
the same.
56
60. When we look at Articles 249 (conditions under which
Parliament may legislate with respect to matters in List II of
Seventh Schedule, wherein the Council of States has deemed it
to be in national interest to do so) and 250 (ambit of
Parliamentary powers as inclusive of competence to legislate with
respect to matters in the State List while a Proclamation of
Emergency is in operation) we find that legislative powers of the
Parliament are spoken of, in the said articles also, only in terms
of as being “for the whole or any part of the territory of India”.
Article 253 deals with legislation that may be needed to give
effect to various international agreements, and again the powers
are specified only in terms of making laws “for the whole or any
part of the territory of India.” Nowhere within Chapter 1, Part XI
do we find support for the propositions of the learned Attorney
General that the Parliament may make laws “for” any territory
other than the “whole or any part of the territory of India.” To
the contrary, we only find a repeated use of the expression “for
the whole or any part of the territory of India.” It is a well known
dictum of statutory and constitutional interpretation that when
the same words or phrases are used in different parts of the
57
Constitution, the same meaning should be ascribed, unless the
context demands otherwise. In this case, we do not see any
contextual reasons that would require reading a different
meaning into the expression “for the whole or any part of the
territory” in the context of Articles 249, 250 or 253, than what
we have gathered from the text of Article 245.
IX
Wider Structural Analysis:
61. Article 260, in Chapter II of Part XI is arguably the only
provision in the Constitution that explicitly deals with the
jurisdiction of the Union in relation to territories outside India,
with respect to all three functions of governance – legislative,
executive and judicial. Learned Attorney General did not point to
this Article as lending particular support for his propositions.
However, on closer examination, Article 260 appears to further
support the conclusions we have arrived at with respect to Article
245. It provides as follows:
“Article 260. Jurisdiction of the Union in relation to territories outside India – The Government of India may by agreement with the Government of any territory not being part of the territory of India
58
undertake any executive, legislative or judicial functions vested in the Government of such territory, but every such agreement shall be subject to, and governed by, any law relating to the exercise of foreign jurisdiction for the time being in force.”
62. It is clear from the above text of Article 260 that it is the
Government of India which may exercise legislative, executive,
and judicial functions with respect of certain specified foreign
territories, the Governments of which, and in whom such powers
have been vested, have entered into an agreement with
Government of India asking it do the same. Indeed, from Article
260, it is clear that Parliament may enact laws, whereby it
specifies the conditions under which the Government of India
may enter into such agreements, and how such agreements are
actually implemented.
63. Nevertheless, the fact even in the sole instance, in the
Constitution, where it is conceived that India may exercise full
jurisdiction – i.e., executive, legislative and judicial – over a
foreign territory, that such a jurisdiction can be exercised only
upon an agreement with the foreign government (thereby
comporting with international laws and principles such as “comity
of nations” and respect for “territorial sovereignty” of other
59
nation-states), and the manner of entering into such
agreements, and the manner of effectuating such an agreement
has to be in conformity with a law specifically enacted by the
Parliament (whereby the control of the people of India over the
actions of the Government of India, even extra-territorially is
retained), implies that it is only “for” India that Parliament may
make laws. The Parliament still remains ours, and exclusively
ours. Though the Government of India, pursuant to Article 260,
acts on behalf of a foreign territory, there is always the
Parliament to make sure that the Government of India does not
act in a manner that is contrary to the interests of, welfare of,
well-being of, or the security of India. The foregoing is a very
different state of affairs from a situation in which the Parliament
itself acts on behalf of a foreign territory, as implicated by the
expression “make extra-territorial laws”. The former comports
with the notions of parliamentary democracy in which the people
ultimately control the Executive through their Parliament; while
the latter indicates the loss of control of the people themselves
over their elected representatives.
60
64. The text of Articles 1 and 2 leads us to an irresistible
conclusion that the meaning, purport and ambit of Article 245 is
as we have gathered above. Sub-clause (c) of Clause (3) of
Article 1 provides that territories not a part of India may be
acquired. The purport of said Sub-Clause (c) of Clause 3 of
Article 1, pace Berubari Union and Exchange of Enclaves, Re 27is
that such acquired territory, automatically becomes a part of
India. It was held in Berubari, that the mode of acquisition of
such territory, and the specific time when such acquired territory
becomes a part of the territory of India, are determined in
accordance with international law. It is only upon such acquired
territory becoming a part of the territory of India would the
Parliament have the power, under Article 2, to admit such
acquired territory in the Union or establish a new state. The
crucial aspect is that it is only when the foreign territory becomes
a part of the territory of India, by acquisition in terms of relevant
international laws, is the Parliament empowered to make laws for
such a hitherto foreign territory. Consequently, the positive
affirmation, in the phrase in Clause (1) of Article 245, that the
Parliament “may make laws for the whole or any part of the
27 AIR 1960 SC 845.
61
territory of India” has to be understood as meaning that unless a
territory is a part of the territory of India, Parliament may not
exercise its legislative powers in respect of such a territory. In
the constitutional schema it is clear that the Parliament may not
make laws for a territory, as a first order condition, unless that
territory is a part of India.
X
Relevance of Case Law Cited by the learned Attorney General:
65. The learned Attorney General cited and relied on many
decisions in support of his arguments. We find that none of the
cases so cited have considered the issues of what the impact of
constitutional text, wider constitutional topological and structural
spaces, the representative capacity of a parliament and the like
would be on the extent of powers of the parliament. Moreover,
having gone through the cases, we do note that none stand for
the proposition that the powers of a parliament are unfettered
and that our Parliament possesses a capacity to make laws that
have no connection whatsoever with India.
66. Nevertheless, we will address a few of the cases relied on
by the learned Attorney General primarily for limited purpose of
62
locating their rationale and reasoning. In Governor General in
Council v. Raleigh Investments28, the key issue was about extra-
territorial operation of a law, and not whether the law as made
was with respect to aspects or causes outside the territory of
British India and bearing no nexus with it. In this regard the
Privy Council’s observations about the Appellant’s contention are
pertinent: “The appellant’s arguments….. comprised two
contentions. It was first argued that these provisions were not
extra-territorial. It was also argued that even if they should be
found in any degree to operate extra-territorially, that would be
no ground of holding them to be invalid, so far as municipal
courts called upon to deal with them are concerned”,29 and finally
“in our judgment therefore, the extent, if any, of extra-territorial
operation which is to be found in the impugned provisions, is
within the legislative powers given to the Indian Legislature by
the Constitution Act.”30 It is clear that in the cited case, the Privy
Council was dealing with the issue of extra-territorial operation of
the law, and not extra-territorial law. In Wallace Brothers v. CIT,
Bombay City and Bombay Suburban District31 also the issue was
28 Supra note 9 29 Ibid, p. 273. 30 Ibid, p. 284. 31 Supra note 10
63
with regard to sufficiency of territorial connection, and it was held
that the principle – sufficient territorial connection – not the rule
giving effect to that principle – residence – is implicit in the
power conferred by the Government of India Act, 1935. In
Emmanuel Mortenssen32, the Court of Justiciary upheld the
jurisdiction of the local Sheriff with respect to the owners and
operator of a trawler boat used for fishing inside the estuary.
However, jurisdiction was not extended on the basis of
parliamentary supremacy or of powers to enact extra-territorial
laws. Rather, the principle enunciated was that an estuary, under
international law, falls within the territory of Scotland, and that
the North Sea Fisheries Convention of 1883 did not derogate
from the foregoing general principle of international law.
Consequently in as much as the operator or owner of that fishing
trawler engaged in acts that were prohibited within the territorial
limits over which the legislature that enacted the applicable
statute had jurisdiction, the local sheriff exercised proper
jurisdiction. Croft v. Dunphy33 was with regard to domestic laws
operating beyond the territorial limits, and it was recognized that
a law which protects the revenue of the states may necessarily 32 Supra note 6 33 Supra note 7
64
have to be operated outside the territorial limits, but that such
operation does not violate the principle that legislatures enact
laws with respect to aspects or causes that have a nexus with the
territory for which the legislature has the law making
responsibility for. The control of smuggling activities and revenue
collection were seen necessarily as related to the territorial
interests, and it was in furtherance of such territorial interests,
was extra-territorial operation permissible. In State v.
Narayandas34 the issue considered by the Bombay High Court
was with regard to the vires of a law enacted by a state
legislature declaring a bigamous marriage contracted outside the
territory of the state to be unlawful. The main issue was with
regard to the power of a state to legislate beyond its territory,
and Chief Justice Chagla held that it could not. One paragraph in
that decision that could be deemed to be supportive of the
learned Attorney General’s propositions is:
“Now under our present Constitution, Parliament has been given absolute powers. Therefore, today Parliament may enact an extra-territorial law. The only limitation on its powers is the practicability of the law. If an extra-territorial law cannot be enforced, then it is useless to enact it but no one can suggest today that a law is void or ultra-vires which is passed
34 Supra note 12.
65
by the Parliament on the ground of its extra- territoriality”.
67. Clearly, the statements that under our Constitution
Parliament has been given absolute powers, and therefore it can
enact extra-territorial laws, are not in comport with present day
constitutional jurisprudence in India that the powers of every
organ of the State are as provided for in the Constitution and not
absolute. We discern that the second half of the excerpt cited
above provides the clue to the fact that Chief Justice Chagla was
concerned more with laws that require an operation outside
India, and not in terms of laws that have no connection with
India whatsoever. At best the comment reveals the concern of
the learned jurist about the Parliament having the competence to
enact laws with respect to objects and provocations lying outside
the territory, but whose effect is felt inside the territory. Hence,
that broad statement does not derogate from the textual
meaning, purport and ambit of Article 245 that we have
expounded hereinabove.
XI
Conclusion:
66
68. There are some important concerns that we wish to share
our thoughts on, before we proceed to answering the questions
that we set out with. Very often arguments are made claiming
supremacy or sovereignty for various organs to act in a manner
that is essentially unchecked and uncontrolled. Invariably such
claims are made with regard to foreign affairs or situations, both
within and outside the territory, in which the government claims
the existence of serious security risks or law and order problems.
Indeed, it may be necessary for the State to possess some
extraordinary powers, and exert considerable force to tackle such
situations. Nevertheless, all such powers, competence, and
extent of force have to be locatable, either explicitly or implicitly,
within the Constitution, and exercised within the four corners of
constitutional permissibility, values and scheme.
69. There are two aspects, of such extreme arguments claiming
absolute powers, which are worrisome. The first one relates to a
misconception of the concepts of sovereignty and of power, and a
predilection to oust judicial scrutiny even at the minimal level,
such as examination of the vires of legislation or other types of
state action. The second one relates to predilections of counsel of
67
asking for powers that are undefined, unspecified, vague and
illimitable be read into the constitutional text, as matter of some
principle of inherent design or implied necessity.
70. The modern concept of sovereignty emerged in a troubled
era of civil wars within the territories of, and incessant conflict
between, nation-states. At one end of the spectrum political
philosophers such as Thomas Hobbes and Jean Bodin postulated
the necessity of absolute power within the territory, arguing that
failure of order was inimical to the well being of the people, and
further arguing that if the governments were to not have such
absolute powers invariably leads to internal disorder. While it is
generally and uncritically argued that Hobbes and Bodin stood for
blind political absolutism, when viewed from a historical
perspective, they can also be seen as the starting points of
human beings quest for greater accountability of states and
governments, which were to be increasingly viewed as the
repositories of collective powers of the people. Hobbes
specifically recognized that governments would become unstable
and lose their legitimacy if they failed to protect the welfare of
the subjects. For Bodin, the absolute sovereign was tempered by
68
divine law (or “natural law”), and the customary laws of the
community. Alan James states that “[f]rom this basis it could be
argued that sovereignty lay not with the ruler but with the ruled.
In this way the ultimate authority could be claimed for the
people, with the government simply acting as their agent.” (See:
Sovereign Statehood – The Basis of International Society35).
These seeds of accountability, carried within them the incipient
forms of arguments that would inexorably lead to the modern
notion of self-determination by the people: that each nation
state, formed by the people, and answerable to the people
through the organs of the State, would act in accordance with
the wishes of the people – both in terms of ordinary moments of
polity, and also in terms of constitutional moments, with the
latter setting forth, in greater or lesser specificity, the acts that
may or may not be done by the organs of the state.
71. The path to modern constitutionalism, with notions of
divided and checked powers, fundamental rights and affirmative
duties of the State to protect and enhance the interests of,
welfare of, and security of the people, and a realization that
35 Allen & Unwin, London (1986).
69
“comity amongst nations” and international peace were sine qua
non for the welfare of the people was neither straight forward,
nor inevitable. It took much suffering, bloodshed, toil, tears and
exploitation of the people by their own governments and by
foreign governments, both in times of peace and in times of war,
before humanity began to arrive at the conclusion that
unchecked power would sooner, rather than later, turn tyrannical
against the very people who have granted such power, and also
harmful to the peaceful existence of other people in other
territories. Imperial expansion, as a result of thirst for markets
and resources that the underlying economy demanded, with
colonial exploitation as the inevitable result of that competition,
and two horrific world wars are but some of the more prominent
markers along that pathway. The most tendentious use of the
word sovereignty, wherein the principles of self-determination
were accepted within a nation-state but not deemed to be
available to others, was the rhetorical question raised by Adolf
Hitler at the time of annexation of Austria in 1938: “What can
words like ‘independence’ or ‘sovereignty’ mean for a state of
only six million?”36 We must recognize the fact that history is
36 De Smith, Stanley A.: “Microstates and Micronesia” (New York, NYU Press 1970), p. 19.
70
replete with instances of sovereigns who, while exercising
authority on behalf of even those people who claimed to be
masters of their own realm, contradictorily claimed the authority
to exercise suzerain rights over another territory, its people and
its resources, inviting ultimately the ruin of large swaths of
humanity and also the very people such sovereigns, whether a
despot or a representative organ, claimed to represent.
72. India’s emergence as a free nation, through a non-violent
struggle, presaged the emergence of a moral voice: that while
we claim our right to self-determination, we claim it as a matter
of our national genius, our status as human beings in the wider
swath of humanity, with rights that are ascribable to us on
account of our human dignity. Such a morality arguably does not
brook the claims of absolute sovereignty to act in any manner or
form, on the international stage or within the country. To make
laws “for another territory” is to denigrate the principle of self-
determination with respect to those people, and a denigration of
the dignity of all human beings, including our own. The debates
in the Constituent Assembly with regard to the wording of Article
51, which was cited earlier in this judgment, gives the true spirit
71
with which we the people of this country have vested our
collective powers in the organs of governance. This is so
particularly because they were made in the aftermath of World
War II, arguably the most brutal that mankind has ever fought,
and the dawn of the atomic age. In particular the statements of
Prof. Khardekar, are worth being quoted in extenso:
“Mr. Austin, a great jurist, says that there is no such thing as international law at all – if there is anything it is only positive morality…. In saying that there may be positive morality I think even there he is wrong. If there were to be morality amongst nations, well we would not have all that has been going about. If there is a morality amongst nations today, it is the morality of robbers. If there is any law today it is the law of the jungle where might is right…… The part that India is to play is certainly very important because foundations of international morality have to be laid and only a country like India with its spiritual heritage can do it…… Therefore it is in keeping with our history, with our tradition, with our culture, that we are a nation of peace and we are going to see that peace prevails in the World.”37
73. In granting the Parliament the powers to legislate “for”
India, and consequently also with respect to extra-territorial
aspects or causes, the framers of our Constitution certainly
intended that there be limits as to the manner in which, and the
37 Constituent Assembly Debates Official Report, 1948-49, page 601 (Lok Sabha Secretariat, New Delhi).
72
extent to which, the organs of the State, including the
Parliament, may take cognizance of extra-territorial aspects or
causes, and exert the State powers (which are the powers of the
collective) on such aspects or causes. Obviously, some of those
limits were expected to work at the level of ideas and of morals,
which can be inculcated by a proper appreciation of our own
history, and the ideas of the framers of our constitution. They
were also intended to have a legal effect. The working of the
principles of public trust, the requirement that all legislation by
the Parliament with respect to extra-territorial aspects or causes
be imbued with the purpose of protecting the interests of, the
welfare of and the security of India, along with Article 51, a
Directive Principle of State Policy, though not enforceable in a
court of law, nevertheless fundamental to governance, lends
unambiguous support to the conclusion that Parliament may not
enact laws with respect to extra-territorial aspects or causes,
wherein such aspects or causes have no nexus whatsoever with
India.
74. Courts should always be very careful when vast powers are
being claimed, especially when those claims are cast in terms of
73
enactment and implementation of laws that are completely
beyond the pale of judicial scrutiny and which the Constitutional
text does not unambiguously support. To readily accede to
demands for a reading of such powers in the constitutional
matrix might inevitably lead to a destruction of the complex
matrix that our Constitution is. Take the instant case itself. It
would appear that the concerns of learned Attorney General may
have been more with whether the ratio in ECIL could lead to a
reading down of the legislative powers granted to the Parliament
by Article 245. A thorough textual analysis, combined with wider
analysis of constitutional topology, structure, values and scheme
has revealed a much more intricately provisioned set of powers
to the Parliament. Indeed, when all the powers necessary for an
organ of the State to perform its role completely and to
effectuate the Constitutional mandate, can be gathered from the
text of the Constitution, properly analysed and understood in the
wider context in which it is located, why should such
unnecessarily imprecise arrogation of powers be claimed? To give
in to such demands, would be to run the risk of importing
meanings and possibilities unsupportable by the entire text and
structure of the Constitution. Invariably such demands are made
74
in seeking to deal with external affairs, or with some claimed
grave danger or a serious law and order problem, external or
internal, to or in India. In such circumstances, it is even more
important that courts be extra careful. The words of Justice
Jackson in Woods v. Cloyd W. Miller Co.,38 in dealing with war
powers, may be used as a constant reminder to be on guard:
“I agree with the result in this case, but the arguments that have been addressed to us lead me to utter more explicit misgivings….. The Government asserts no constitutional basis for this legislation other than this vague, undefined and undefinable “war power.”….. It usually is invoked in haste and excitement when calm legislative consideration of constitutional limitation is difficult. It is executed in a time of patriotic fervor that makes moderation unpopular. And, worst of all, it is interpreted by judges under the influence of the same passions and pressures. Always, as in this case, the Government urges hasty decisions to forestall some emergency or serve some purpose and pleads that paralysis will result if its claims to power are denied or their confirmation delayed. Particularly when the war power is invoked to do things to the liberties of the people,… …. that only indirectly affect conduct of war and do not relate to the management of war itself, the constitutional basis should be scrutinized with care.”
75. The point is not whether and how India’s constitution grants
war powers. The point is about how much care should be
exercised in interpreting the provisions of the Constitution. Very
38 333 U.S. 138
75
often, what the text of the Constitution says, when interpreted in
light of the plain meaning, constitutional topology, structure,
values and scheme, reveals the presence of all the necessary
powers to conduct the affairs of the State even in circumstances
that are fraught with grave danger. We do not need to go looking
for powers that the text of the Constitution, so analysed, does
not reveal.
76. We now turn to answering the two questions that we set
out with:
(1) Is the Parliament constitutionally restricted from enacting legislation with respect to extra-territorial aspects or causes that do not have, nor expected to have any, direct or indirect, tangible or intangible impact(s) on or effect(s) in or consequences for: (a) the territory of India, or any part of India; or (b) the interests of, welfare of, wellbeing of, or security of inhabitants of India, and Indians?
The answer to the above would be yes. However, the
Parliament may exercise its legislative powers with respect
to extra-territorial aspects or causes, – events, things,
phenomena (howsoever commonplace they may be),
resources, actions or transactions, and the like -, that
76
occur, arise or exist or may be expected to do so, naturally
or on account of some human agency, in the social,
political, economic, cultural, biological, environmental or
physical spheres outside the territory of India, and seek to
control, modulate, mitigate or transform the effects of such
extra-territorial aspects or causes, or in appropriate cases,
eliminate or engender such extra-territorial aspects or
causes, only when such extra-territorial aspects or causes
have, or are expected to have, some impact on, or effect in,
or consequences for: (a) the territory of India, or any part
of India; or (b) the interests of, welfare of, wellbeing of, or
security of inhabitants of India, and Indians.
It is important for us to state and hold here that the powers
of legislation of the Parliament with regard to all aspects or
causes that are within the purview of its competence,
including with respect to extra-territorial aspects or causes
as delineated above, and as specified by the Constitution,
or implied by its essential role in the constitutional scheme,
ought not to be subjected to some a-priori quantitative
tests, such as “sufficiency” or “significance” or in any other
77
manner requiring a pre-determined degree of strength. All
that would be required would be that the connection to
India be real or expected to be real, and not illusory or
fanciful. Whether a particular law enacted by Parliament
does show such a real connection, or expected real
connection, between the extra-territorial aspect or cause
and something in India or related to India and Indians, in
terms of impact, effect or consequence, would be a mixed
matter of facts and of law. Obviously, where the Parliament
itself posits a degree of such relationship, beyond the
constitutional requirement that it be real and not fanciful,
then the courts would have to enforce such a requirement
in the operation of the law as a matter of that law itself,
and not of the Constitution.
(2) Does the Parliament have the powers to legislate “for” any territory, other than the territory of India or any part of it?
The answer to the above would be no. It is obvious that
Parliament is empowered to make laws with respect to
aspects or causes that occur, arise or exist, or may be
78
expected to do so, within the territory of India, and also
with respect to extra-territorial aspects or causes that have
an impact on or nexus with India as explained above in the
answer to Question 1 above. Such laws would fall within the
meaning, purport and ambit of the grant of powers to
Parliament to make laws “for the whole or any part of the
territory of India”, and they may not be invalidated on the
ground that they may require extra-territorial operation.
Any laws enacted by Parliament with respect to extra-
territorial aspects or causes that have no impact on or
nexus with India would be ultra-vires, as answered in
response to Question 1 above, and would be laws made
“for” a foreign territory.
77. Let the appeal be listed before an appropriate bench for
disposal. Ordered accordingly.
………………………………..CJI.
………………………………J. [B. SUDERSHAN REDDY]
………………………………J.
79
[K.S.RADHAKRISHNAN]
………………………………J. [SURINDER SINGH NIJJAR]
………………………………J. [SWATANTER KUMAR]
NEW DELHI March 1, 2011.
80