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Principles of Constitutional Interpretation

Introduction:
The Constitution is short; it cannot and does not attempt to cover every eventuality (everything happens under
the Sun). Even when it seems it is clear, there can be conflicting rights and responsibilities. When disputes arise, it
comes time for people, and most importantly judges, to interpret the Constitution. When a new situation arises,
or even a new variation on an old situation arises, the Constitution is often looked for guidance. It is at this point
that the various interpretations of the Constitution come into play. There is no one right way to interpret the
Constitution, and judges often do not always stick to one interpretation. Below, then, are the major divisions in
interpretation.

Interpretation: Interpretation means the art of finding out the true sense of legislation by giving the words of the
legislation its natural and ordinary meaning. It is the process of finding out the true meaning of the words used in
a statute/legislation.
The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have
evolved out of the continuous exercise by the Courts. These principles are sometimes called rules of
interpretation.
What we speak or write are the means of communication. No problem arises when the words are of single
meaning, but those with plural meanings require the basic intend of the conveyor to be understood.

The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or
impliedly in the language used.

As stated by SALMOND, "by interpretation is meant, the process by which the courts seek to ascertain (find out)
the meaning of the legislature which they expressed."

Constitutional Interpretation: The constitution is an organic instrument. It is the fundamental law. The general
rule adopted for construing a written constitution is the same as for construing any other statute. The
constitution should be interpreted so as to give effect to all its parts. Judiciary as they by their own intellect has to
interpret the statutes made by the legislators. In most circumstances the language of the statute has a plain,
simple and to the point meaning. Interpretation becomes more important when it comes to uncertain and
repugnant provisions of the statues.

In democratic countries, the judiciary is given a place of great significance. The courts perform the key role of
expounding the provisions of the Constitution. The courts act as the supreme interpreter, protector and guardian
of the supremacy of the Constitution. The judiciary has to perform an important role in the interpretation and
enforcement of human rights inscribed in the fundamental law of the country. Therefore, it is necessary to
consider what should be the approach of the judiciary in the matter of Constitutional Interpretation. The judiciary
has to devise a pragmatic wisdom to adopt a creative and purposive approach in the interpretation of various
rights embodied in the Constitution. The task of interpreting the constitution is a highly creative judicial function
which must be in tune with the constitutional philosophy.

A democratic society lives and swears by certain values such as individual liberty, human dignity; rule of law,
constitutionalism etc. and it is the duty of the judiciary to so interpret the constitution and the law as to
constantly inculcate these values on which democracy thrives.
There are five and three are the most important interpretation of the constitution.

A. The Literal Interpretation


It essentially says that the exact wording of the Constitution should be applied literally as written in the text
of the Constitution itself. No reference should be made by the Court since this method believes that , After
all, Constitution is the text which the people have ratified. This method of interpretation does not invite or
allow the Courts view of what the Constitution should mean or really means. But the difficulty with this
approach is very clear. A broadly-phrased and vaguely worded document such as the Constitution does not
lend itself towards literal interpretation at all times.

B. The Purposive Interpretation


With such visible difficulties in the application of the Literal method, the Court has frequently adopted a more
broad-based approach to the wording of the Constitution. The purposive approach essentially asks what the
basic purpose behind the Constitutional provision in question? What did that Article or sub-Article seek to
achieve? By asking these questions, the Court can then conclude what the meaning of the actual words is.

C. Historical interpretation
This approach questions the state of popular thought at the time of the passing of the Constitution
and/or the Constitutional provision in question. By using extra-Constitutional materials, we can
determine the state of mind of those who passed the Constitution by referendum. This, in turn, can
assist the Court in determining the true meaning of the phrases contained therein.

In the United States, a striking example of such an updated reading of the Constitution is arguably the case of
Brown v Board of Education, which declared segregation of whites and coloured people in educational
institutions to violate the constitutional right of equality of all citizens contained in the Fourteenth
Amendment to the US Constitution; at the time of the adoption of the Fourteenth Amendment, it seems
unlikely that such an understanding of the Fourteenth Amendment was held by ether the drafters themselves
or the body politic more generally, given the prevalence of segregated schooling at that time (although at
least one author has argued that an original understanding of the Fourteenth Amendment supports the
decision in Brown3 ). A question that then arises is with reference to what should interpretation based on the
idea of a living instrument be based and candidates for this include the prevailing consensus of opinion in
the body politic4 and the principles that can be derived from the idea of best fit5 with the political morality
reflected in the Constitution overall.

D. Contemporary (occurring in the present) interpretation


The Constitution must be interpreted in the light of the present scenario. The situation and circumstances
prevalent today must be considered.
A contemporary or modernist approach to Constitutional interpretation looks at the Constitution as if it were
ratified today. What meaning would it have today, if written today. How does modern life affect the words of
the Constitution? The main argument against originalism is that the Constitution becomes stale and irrelevant
to modern life if only viewed through the colonial era. Additionally, we have more than thousands of years of
history and legal precedent to look back on, and that we are modern individuals, with as much difficulty in
reasonably thinking like 18th century men as those 18th century men would have had trouble thinking like us.
Modernists believe that the Constitution is vague in many areas and hence it permits modern interpretations to
override older ones as the Constitution ages. That is why it is called a living Constitution. The Constitution should
be flexible and dynamic, changing slowly over time as the morals and beliefs of the population shift. Modernists
do not reject originalism - they recognize that there is value in a historical perspective; but the contemporary
needs of society outweigh an adherence to a potentially dangerously outdated angle of attack.

E. Harmonious Construction
The doctrine or the rule of harmonious construction is adopted when there is a conflict between two or
more statues or between the parts or provisions of the statues. The courts in every case harmonize the
contradictory provisions by interpreting not only the provisions but also the original intention of the law or
rule maker in order to give effect to both the provisions and ensure not to make any of the two provisions
void or to destroy it.

When there is a conflict between two or more statues or two or more parts of a statute then the rule of
harmonious construction needs to be adopted. The rule follows a very simple presumption that every statute has
a purpose and intent as per law and should be read as a whole. The interpretation consistent of all the provisions
of the statute should be adopted. In the case in which it shall be impossible to harmonize both the provisions, the
courts decision regarding the provision shall prevail.

The rule of harmonious construction is the thumb rule to interpretation of any statute. An interpretation which
makes the enactment a consistent whole, should be the aim of the Courts and a construction which avoids
inconsistency or repugnancy between the various sections or parts of the statute should be adopted. The Courts
should avoid a head on clash, in the words of the Apex Court, between the different parts of an enactment and
conflict between the various provisions should be sought to be harmonized.

The normal presumption should be consistency and it should not be assumed that what is given with one hand by
the legislature is sought to be taken away by the other. The rule of harmonious construction has been tersely
explained by the Supreme Court thus, When there are, in an enactment two provisions which cannot be
reconciled with each other, they should be so interpreted, that if possible, effect should be given to both. A
construction which makes one portion of the enactment a dead letter should be avoided since harmonization is
not equivalent to destruction.

The Supreme Court laid down 5 principles of rule of Harmonious Construction in the landmark case of CIT v
Hindustan Bulk Carriers:
1. The courts must avoid a head on clash of seemingly contradicting provisions and they must construe the
contradictory provisions so as to harmonize them.
2. The provision of one section cannot be used to defeat the provision contained in another unless the court,
despite all its effort, is unable to find a way to reconcile their differences. When it is impossible to completely
reconcile the differences in contradictory provisions, the courts must interpret them in such as way so that
effect is given to both the provisions as much as possible.
3. Courts must also keep in mind that interpretation that reduces one provision to a useless number or dead is
not harmonious construction. To harmonize is not to destroy any statutory provision or to render it fruitless.
The Supreme Court held in Re Kerala Education Bill that in deciding the fundamental rights, the court must
consider the directive principles and adopt the principle of harmonious construction so that two possibilities are
given effect as much as possible by striking a balance.

In Qureshi v State of Bihar, The Supreme Court held that while the state should implement the directive
principles, it should be done in such a way so as not to violate the fundamental rights.

In Bhatia International v Bulk trading SA, it was held that if more than one interpretation is possible for a statute,
then the court has to choose the interpretation which depicts (outlines) the intention of the legislature.

Interpretation of the preamble of the Constitution

The preamble cannot override the provisions of the constitution. In Re Berubari, the Supreme Court held that the
Preamble was not a part of the constitution and therefore it could not be regarded as a source of any substantive
power.

In Keshavananda Bharathis case, the Supreme Court rejected the above view and held the preamble to be a
part of the constitution. The constitution must be read in the light of the preamble. The preamble could be used
for the amendment power of the parliament under Art.368 but basic elements cannot be amended. The 42nd
Amendment has inserted the words Secularism, Socialism and Integrity in the preamble.

General rules of interpretation of the Constitution


1. If the words are clear and unambiguous, they must be given full effect.
2. The constitution must be read as a whole.
3. Principles of Harmonious construction must be applied.
4. The constitution must be interpreted in a broad and liberal sense.
5. The court has to infer the spirit of the constitution from the language.
6. Internal and External aids may be used while interpreting.
7. The Constitution prevails over other statutes.

Principles of Constitutional Interpretation


The following principles have frequently been discussed by the courts while interpreting the Constitution:
1. Principle of colorable legislation
2. Principle of pith and substance
3. Principle of territorial nexus
4. Principle of Eclipse
5. Principle of severability
6. Principle of implied powers
7. Principle of incidental or ancillary powers

PRINCIPLE OF COLOURABLE LEGISLATION

Doctrine of Colorable Legislation like any other


constitutional law doctrine is a tool devised and applied
by the Supreme Court of India to interpret various
Constitutional Provisions. It is a guiding principle utility while interpreting the provisions relating to legislative
competence.

Doctrine of Colorable Legislation is built upon the founding stones of the Doctrine of Separation of
Power. Separation of Power mandates that a balance of power is to be struck between the different components
of the State i.e. between the Legislature, the Executive and the Judiciary. The Primary Function of the legislature
is to make laws. Whenever, Legislature tries to shift this balance of power towards itself then the Doctrine of
Colorable Legislation is attracted to take care of Legislative Accountability.

Definition: Blacks Law Dictionary defines Colorable as Appearing to be true, valid or right.

Maxim: Quando aliquid prohibetur ex directo, prohibetur et per obliqum which means what cannot be done
directly cannot also be done indirectly.

The literal meaning of Colorable Legislation is that under the color or guise of power conferred for one
particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not
competent to legislate on.

This doctrine is based on the principle that what cannot be done directly cannot be done indirectly. In other
words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect
but in a roundabout manner is also unconstitutional. This doctrine is found on the wider doctrine of "fraud on the
constitution". A thing is Colourable when it seems to be one thing in the appearance but another thing
underneath.
In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the Legislative
Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects under List I
for the Union, List II for the States and List III for both, as mentioned in the Seventh Schedule.

Important Case Laws


Case 1:
K C Gajapati Narayan Deo vs State of Orissa, AIR 1953
It is a famous case that illustrates the applicability of this doctrine. In this case, SC observed that the constitution
has clearly distributed the legislative powers to various bodies, which have to act within their respective spheres.

Facts: The petitioners were the owners of estates. The Orissa state Legislature enacted the Orissa State Estates
Abolition Act, 1952 whose primarily purpose of the Act is to abolish all zamindary and other proprietary estates
and interests in the State of Orissa and after eliminating all the intermediaries, to bring riots or the actual
occupants of the lands in direct contact with the State Government the compensation would be calculated at a
certain number of years purchase of the net annual income of the estate during the previous agricultural year,
that is to say, the year immediately preceding that in which the date of vesting falls. The other sum payable as
income-tax in respect of any other kind of income derived from the estate would also be included in the
deductions. The amount of compensation thus determined is payable in 30 annual equated installments
commencing from the date of vesting and an opinion is given to the State Government to make full payment at
any time.
Issue
Whether Orissa State Estates Abolition Act, 1952 is a piece of colourable legislation?
Legal Proposition
That the doctrine of colourable legislation does not involve any question of bonafides or malafides on the part of
the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to
enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act
are really irrelevant1. On the other hand, if the legislature lacks competency, the question of motive does not
arise at all. Whether a statute is constitutional or not is thus always a question of power Malice or motive is
beside the point, and it is not permissible to suggest parliamentary incompetence on the score of malafides. A
distinction, however, exists between a legislature which is legally important like the British Parliament and the
laws promulgated by which could not be challenged on the ground of incompetency, and a legislature which
enjoys only a limited or a qualified jurisdiction.

Judgment
The validity of this provision has been challenged on the ground that it is a piece of colourable legislation which
comes within the principle enunciated by the majority of this court in the Bihar case2. It is difficult to appreciate
this argument of the learned counsel. It is not a legislation on somethimg which is non-existent or unrelated to
facts. It cannot also be seriously contended that what section 37 provides for, is not giving of compensation but of
negativing the right to compensation as the learned counsel seems to suggest. There is no substance in this
contention and we have no hesitation in overruling it. The result is that all the points raised by the learned
counsel for the appellants fail and the appeals are dismissed. Having regard to some important constitutional
questions involved in these cases which needed clearing up, we direct that each party should bear his own costs
in these appeals. Appeal dismissed.

Case 2: K T Moopil Nair vs State of Kerala, AIR 1961


This is a contradicting case. In this case, the state imposed a tax under Travencore Cochin Land Tax Act, 1955,
which was so high that it was many times the annual income that the person was earning from the land. The SC
held the act as violative (Contrary to) of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a
person's property was being confiscated.

Case 3: Balaji vs State of Mysore, AIR 1963


Similarly, in Balaji vs State of Mysore, AIR 1963, SC held that the order reserving 68% of the seats for students
belonging to backward classes was violative of Article 14 in disguise of making a provision under Article 15(4).

Principle of pith and substance


Pith means true nature or essence of something and substance means the most important or essential part of
something.

Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon.
Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. This doctrine is widely

1
MP Jain, Indian Constitutional Law, Wadwa Nagpur, 5 th Ed., 537
2
State of Bihar vs. Maharaja Kameshwar Singh & ors, 1955 SCR 889
used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in
Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State
is valid if the true nature of the act or the provision is about a subject that falls in the State list.

Union & State Legislatures are supreme within their respective fields. They should not encroach/ trespass into the
field reserved to the other. If a law passed by one trespasses upon the field assigned to the otherthe Court by
applying Pith & Substance doctrine, resolve the difficulty &declare whether the legislature concerned was
competent to make the law.

Cases :

Profulla Kumar vs. Bank of Khulna


In this case, the Privy Council applied pith & substance doctrine. S. 100 GI Act 1935 is similar to Art .246 of the
Constitution. The Bengal Money Lenders Act 1940 provided for limiting the amount and the rate of interest
recoverable by any money lender on any loan. Challenged that the Bengal Legislature has no legislative
competence. The High Court held the Act intra vires .But the Federal Court held it ultra vires. On appeal the Privy
Council reversed and held that Bengal Act in pith & substance is within the provincial legislative field. Money
lending in Entry 27 List two. Promissory Notes in Entry 28 List one. The interference was incidental.

State of Bombay vs. FN Balsara


This case illustrates this principle very nicely. In this case, the State of Maharashtra passed Bombay Prohibition
Act that prohibited the sale and storage of liquor. This affected the business of the appellant who used to import
liquor. He challenged the act on the ground that import and export are the subjects that belong in Union list and
state is incapable of making any laws regarding it. SC rejected this argument and held that the true nature of the
act is prohibition of alcohol in the state and this subject belongs to the State list. The court looks at the true
character and nature of the act having regard to the purpose, scope, objective, and the effects of its provisions.
Therefore, the fact that the act superficially touches on import of alcohol does not make it invalid.

State of W Bengal vs Kesoram Industries, 2004


Thus, as held in this case, the courts have to ignore the name given to the act by the legislature and must also
disregard the incidental encroachments of the act and has to see where the impact of the legislation falls. It must
then decide the constitutionality of the act.

Principle of territorial nexus


Territorial nexus (connection / link) is a concept in which has described in Article 245 of the Constitution that
determines how legislative powers are divided.

Article 245 (1) says- 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.
However, second clause says that a law made by parliament cannot be held invalid on ground that it has an extra-
territorial operation. This implies that state law cannot have extra-territorial operation. The Doctrine of territorial
nexus emanates from the Supreme Court interpretation of this provision in context with extra-territorial
operation of a law made by state government in India.
Article 245 (2) of the Constitution of India makes it amply clear that No law made by Parliament shall be deemed
to be invalid on the ground that it would have extra-territorial operation. Thus a legislation cannot be questioned
on the ground that it has extra-territorial operation. It is well-established that the Courts of our country must
enforce the law with the machinery available to them; and they are not entitled to question the authority of the
Legislature in making a law which is extra-territorial. Extra-territorial operation does not invalidate a law.

The Doctrine of Territorial nexus can be invoked under the following circumstances-
Whether a particular state has extra-territorial operation.
If there is a territorial nexus between the subject- matter of the Act and the state making the law

It signifies that the object to which the law applies need not be physically located within the territorial boundaries
of the state, but must have a sufficient territorial connection with the state. A state may levy a tax on a person,
property, object or transaction not only when it is situated within its territorial limits, but also when it has a
sufficient and real territorial connection with it. Nexus test was applied to the state legislations also

ILLUSTRATION
This can be understood by an example. We imagine that one persons lives in Rajasthan running a Lottery business
in Bangalore using his network and people over there. The people in Bangalore will pay for lottery tickets and
from whatever receipts he get, he will pay the prize money and keep rest as profit after paying applicable taxes.
Question is since he is living in Rajasthan but his business was conducted in Bangalore, should he pay tax to
Karnataka Government?
The court has reviewed such case and established that even he is not living in Bangalore, since business activity
was conducted there; he should pay tax to Karnataka Government. The court says that if there is sufficient nexus
between state and the object, then the state law can operate outside state also. Here, he is an object and
Karnataka government is state; and there is a nexus between object and state because of his business activity in
that state despite not living there or physically present there. This is called Doctrine of territorial nexus.

In simple words, Doctrine territorial nexus says that laws made by a state legislature are not applicable outside
the state, except when there is a sufficient nexus between the state and the object.

Case:
1. State of Bombay v. RMDC
The Respondent was not residing in Bombay but he conducted Competitions with prize money through a
newspaper printed and published from Banglore having a wide circulation in Bombay. All the essential activities
like filling up of the forms, entry fees etc for the competition took place in Bombay. The state govt. sought to levy
tax the respondent for carrying on business in the state. The question for decision before the Supreme Court was
if the respondent, the organizer of the competition, who was outside the state of Bombay, could be validly taxed
under the Act. It was held that there existed a sufficient territorial nexus to enable the Bombay Legislature to tax
the respondent as all the activities which the competitor is ordinarily expected to undertake took place mostly
within Bombay.

2. Tata Iron & Steel Company vs. Bihar State


The State of Bihar passed a Sales Tax Act for levy of sales tax whether the sale was concluded within the state or
outside if the goods were produced, found and manufactured in the state .The court held there was sufficient
territorial nexus and upheld the Act as valid. Whether there is sufficient nexus between the law and the object
sought to be taxed will depend upon the facts and circumstances of a particular case. It was pointed out that
sufficiency of the territorial connection involved a consideration of two elements- a) the connection must be real
and not illusory b) the liability sought to be imposed must be pertinent to that connection.

Principle of eclipse
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is not dead totally
but overshadowed by the fundamental right. The inconsistency (conflict) can be removed by constitutional
amendment to the relevant fundamental right so that eclipse vanishes and the entire law becomes valid.

All laws in force in India before the commencement of the Constitution shall be void in so far they are
inconsistent with the provisions of the Constitution. Any law existing before the commencement of the
Constitution and inconsistent with the provision of Constitution becomes inoperative on commencement of
Constitution. But the law does not become dead. The law remains a valid law in order to determine any question
of law incurred before commencement of the Constitution. An existing law only becomes eclipsed to the extend
it comes under the shadow of the FR.
Case: Bhikhaji v. State of M.P3
In this case the provisions of Civil Procedure and Berar Motor Vehicles (Amendment) Act 1948 authorized the
State Government to take up the entire motor transport business in the Province to the exclusion of motor
transport operators. This provision though valid when enacted, but became void on the commencement of the
Constitution in 1950 as they violated Article 19(1) (g) of the Constitution. However, in 1951 Clause (6) of Article 19
was amended by the Constitution (1st Amendment Act) so as to authorize. The Government to monopolise any
business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the
impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after
the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights.
As soon as the eclipse is removed, the law begins to operate from the date of such removal.
Case: Keshavan Madhava Menon v. The State of Bombay4
In this case the law in question was an existing law at the time when the Constitution came into force. That
existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19(1)(g) restrictions
which could not be justified as reasonable under clause (6) as it then stood and consequently under article
13(1)5 that existing law became void to the extent of such inconsistency.
The court said that the law became void not in to or for all purposes or for all times or for all persons but only to
the extent of such inconsistency, that is to say, to the extent it became inconsistent with the provisions of Part
III which conferred the fundamental rights on the citizens.

3
AIR 1955 S.C. 781
4
[1961] S.C.R. 288
5
Article 13 (1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void.
Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights
upon the premise that such laws are not null and void ab initio but become unenforceable only to the extent of
such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the
inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that
particular law again becomes active again.

Principle of Severeability
Doctrine of severability provides that if an enactment cannot be saved by construing it consistent with its
constitutionality, it may be seen whether it can be partly saved. Article 13 of the Constitution of India provides for
Doctrine of severability which states that-
All laws in force in India before the commencement of Constitution shall be void in so far they are inconsistent
with the provisions of the Constitution.

The State shall not make any law which takes away/ shortens the rights conferred in Part III of the Constitution ie.
Fundamental Rights. Any law made in contravention of the provisions of the Constitution shall be void and invalid.
The invalid part shall be severed and declared invalid if it is really severable. (That is, if the part which is not
severed can meaningfully exist without the severed part.) Sometimes the valid and invalid parts of the Act are so
mixed up that they cannot be separated from each other. In such cases, the entire Act will be invalid.

Case: AK Gopalan v. State of Madras6


In this case, the Supreme Court said that in case of repugnancy to the Constitution, only the repugnant
provision of the impugned Act will be void and not the whole of it, and every attempt should be made to save as
much as possible of the Act. If the omission of the invalid part will not change the nature or the structure of the
object of the legislature, it is severable. It was held that except Section 14 all other sections of the Preventive
Detention Act, 1950 were valid, and since Section 14 could be severed from the rest of the Act, the detention of
the petitioner was not illegal.

Case: HR Banthia v. Union of India


In this case, the Supreme Court struck down certain provisions of the Gold Control Act, 1968 and since these were
not inextricably bound up with the rest of the provisions of the Act, the rest were held to be valid. The decision is
an illustration of severability in application.

Principle of Implied powers


Laws which are necessary and proper for the execution of the power or incidental to such power are called
implied powers and these laws are presumed to be constitutional. In other words, constitutional powers are
granted in general terms out of which implied powers must necessarily arise. Likewise constitutional restraints
are put in general terms out of which implied restraints must also necessarily establish.

This is a Legal principle which states that, in general, the rights and duties of a legislative body or organization are
determined from its functions and purposes as specified in its constitution or charter and developed in practice.

6
AIR 1950 SC 27
Principle of incidental or ancillary powers
Incidental and ancillary powers are an elementary cardinal rule of interpretation that the words used in the
Constitution which confer legislative power must receive the most liberal construction and if they are words of
wide amplitude, they must be interpreted so as to give effect to that amplitude7. It would not be correct to put a
narrow or restricted construction on the words of wide amplitude in a Constitution.

This principle is an addition to the doctrine of Pith and Substance. What it means is that the power to legislate on
a subject also includes power to legislate on ancillary matters that are reasonably connected to that subject. It is
not always sufficient to determine the constitutionality of an act by just looking at the pith and substance of the
act. In such cases, it has to be seen whether the matter referred in the act is essential to give affect to the main
subject of the act. For example, power to impose tax would include the power to search and seizure to prevent
the evasion of that tax. Similarly, the power to legislate on Land reforms includes the power to legislate on
mortgage of the land. However, power relating to banking cannot be extended to include power relating to non-
banking entities. However, if a subject is explicitly mentioned in a State or Union list, it cannot be said to be an
ancillary matter. For example, power to tax is mentioned in specific entries in the lists and so the power to tax
cannot be claimed as ancillary to the power relating to any other entry of the lists.

Case: Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City8

Facts: The appellant was assessed by the Income Tax officer, Bomaby (by an assessment order dated 31st March,
1948) for the assssessment year 1947-1948 on a total income of rs.19,66,782 including a sum of Rs.9,38,011
representing capital gains assessed in the hands of the4 appellant under section 12(B) of the Indian Income tax
Act, 1922. Now, this said amount of capital gains was earned by the appellant in the following circumstances. The
asppellant had a half share in certain immovable properties that were situated in Bombay, which were sold by the
appellant himself along with his co-owners in the year ending 31st December, 1946 to a private limited

Company known as Mafatlal Gagalbhai & Company limited. The profits on the sale of the said properties
amounted to Rs.18,76,023 and there by the appellants half share came to a sum of Rs. 9,38,011 which was
included in the calculation of tax under Section 12(B) of the Act.

Issue of the Case

The main issue of the case is as follows:

Whether the imposition of a tax under the head capital gains by the Central Legislature is ultra vires?

Now, the principle question arising is that Section 12(B) of the Indian Income tax act, 1922; which authorized the
imposition of tax on capital gains will fall under Entry 82 or Entry 86 of List 1 of the seventh Schedule of the
Constitution of India?

Judgment of the case

Section 12(B) is intra vires the powers of the Central Legislature, acting under Entry 82 (which says, taxes on
income other than agricultural income) of list 1 in seventh schedule of the constitution of India. In this view of the
matter, it is completely unnecessary to consider or express any opinion as to the meaning, scope and ambit of
Entry 86 in the same list. The appeal is therefore dismissed.

7
VN Shukla, Constitutional Law, 6th Ed., Wadhwa Nagpur: Lexis Nexis Butterworths, 2010, p575
8
AIR 1955 SC 58
Conclusion
Constitution is the supreme and fundamental law of our country. Since it is written in the form of a statute,
the general principles of statutory interpretation are applicable to interpretation of the constitution as well. It is
important to note that the constitution itself endorses the general principles of interpretation through Article
367(1), which states that unless the context otherwise requires, the General Clauses Act, 1897 shall apply for the
interpretation of this constitution as it applies for the interpretation of an act of the legislature.

The letters of the constitution are fairly static and not very easy to change but the laws enacted by the
legislature reflect the current state of people and are very dynamic. To ensure that the new laws are consistent
with the basic structure of the constitution, the constitution must be interpreted in broad and liberal manner
giving affect to all its parts and the presumption must be that no conflict or repugnancy was intended by its
framers. Applying the same logic, the provisions relating to fundamental rights have been interpreted broadly and
liberally in favor of the subject. Similarly, various legislative entries mentioned in the Union, State, and Concurrent
list have been construed liberally and widely.