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,  

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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.  

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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

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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  

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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?

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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  

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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.:  

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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.  

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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.,  

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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  

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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.

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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.   

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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

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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.  

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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.

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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.

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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  

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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”.

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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  

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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  

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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

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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  

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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  

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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  

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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.

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[K.S.RADHAKRISHNAN]

………………………………J. [SURINDER SINGH NIJJAR]

………………………………J. [SWATANTER KUMAR]

NEW DELHI  March 1, 2011.

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