Introduction

The constitution is a fundamental organic instrument and it is the principle 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.
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.

The predominant positivist approach of interpretation followed by the Indian Judiciary emanates
from the basic traditional theory that a judge does not create law but merely declares the law.

Types of Interpretation of the constitution:

There are basically three types of interpretation of the constitution.

1. Historical interpretation
Ambiguities and uncertainties while interpreting the constitutional provisions can be clarified by
referring to earlier interpretative decisions.

2. Contemporary interpretation
The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.

3. Harmonious Construction

Meaning:

It is a cardinal rule of construction that when there are in a statute two provisions, which are in such
conflict with each other, that both of them cannot stand together, they should possibly be so
interpreted that effect can be given to both. And that a construction which renders either of them in
operative and useless should not be adopted except in the last resort.

The Supreme Court held in Re Kerala Education Bill1 that in deciding the fundamental rights, the
court must consider the directive principles and adopt the principle of harmonious construction so two
possibilities are given effect as much as possible by striking a balance.

1 1959 1 SCR 995

 In Qureshi v State of Bihar2, 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 trading3, it was held that if more than one interpretation is possible
for a statute, then the court has to choose the interpretation which depicts the intention of the
legislature.

Interpretation of the preamble of the Constitution

The preamble cannot override the provisions of the constitution. In Re Berubari4, 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 Bharathi’s case5, 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 Indian 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 used whenever necessary.

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.

2 1958 AIR 731

3 (2003) 5 SCC (Jour) 22

4 AIR 1960 SC 845

5 AIR 1973 SC 1461
 Principles/ Doctrines of Constitutional Interpretation

The following principles have frequently been discussed by the courts while interpreting the
Constitution:

1. Principle of colourable legislation

2. Principle of pith and substance
3. Principle of eclipse
4. Principle of severability
5. Principle of territorial nexus
6. Principle of implied powers
7. Principle of incidental or ancillary powers

Principle of Colourable Legislation:

Meaning: The Basic idea of this Significant Doctrine is that if that when the legislature wants to do
something that it cannot do within the constraints of the constitution, it colours the law with a
substitute purpose which will still allow it to accomplish its original goal.

This principle is based on the Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per
obliqum” which means what cannot be done directly cannot also be done indirectly.

The rule relates to the question of legislative competency to enact a law. Colourable Legislation does
not involve the question of bonafide or malfide. A legislative transgression may be patent, manifest or
direct or may be disguised, covert or indirect. It is also applied to the fraud of Constitution.

Applicability of Colourable Legislation Doctrine in India:

In India ‘the doctrine of colourable legislation’ signifies only a limitation of the law making power of
the legislature. It comes into picture while the legislature purporting to act within its power but in
reality it has transgressed those powers. So the doctrine becomes applicable whenever legislation
seeks to do in an indirect manner what it cannot do directly. If the impugned legislation falls within
the competence of legislature, the question of doing something indirectly, which cannot be done
directly, does not arise.

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 the both as mentioned
in the seventh schedule.

Its applicability can be well traced from the infamous KC Gajapati v. State of Orissa6 where 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 The State Government the
compensation would be calculated at a certain number of years purchase of the net annual income of

6 AIR 1953 SC 375

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.

This doctrine comes into play when a legislature does not possess the power to make law upon a
particular subject but nonetheless indirectly makes one. By applying this principle the fate of the
Impugned Legislation is decided.

Issue

Whether “Orissa State Estates Abolition Act”, 1952 is a piece of colourable legislation?

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 irrelevant. 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.

Judgement

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
Case. It is difficult to appreciate this argument of the learned counsel. It is not a legislation on
something 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 negating 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.

Principle of pith and substance

Meaning: Pith means ‘true nature’ or essence of something’ and substance means ‘the most important
or essential part of something’. The basic purpose of this doctrine is to determine under which head of
power or field i.e. under which list (given in the seventh schedule) a given piece of legislation falls.

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 other; the Court by applying Pith & Substance doctrine, resolve the difficulty &declare whether
the legislature concerned was competent to make the law.

If the pith & substance of law (i.e. the true object of the legislation) relates to a matter within the
competence of the legislature, which enacted it, it should be held intra vires, though the legislature
might incidentally trespass into matters not within its competence. The true character of the legislation
can be ascertained by having regard, to the enactment as a whole, to its object to the scope and effect
of its provisions.

In the case of Profulla Kumar vs. Bank of Khulna 7 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 moneylender 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 and interpreted that
Money lending in Entry 27 List II. Promissory Notes in Entry 28 List I. and decided the interference
was incidental.

Also in Case of State of Bombay vs. FN Balsara 8 The court held that Bombay Prohibition Act, 1949
valid because the pith & substance i,e the prohibition, purchase, use, possession and sale of liquor
will affect the Centre’s Interest and further interpreted that the the act of fell under Entry 8 of State
List and not under Entry 41 of Union List.

Principle of eclipse

Meaning:

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 Fundamental
Rights.

Case: Bhikhaji v. State of M.P9

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 Bombay 10

7 Bengal Act X of 1940

8 1985 AIR 781
9 1985 AIR 781
10 1951 SCR 88
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)[13] 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.

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 Severability:

Meaning:

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.

Applicability of Severability Doctrine:

Its immense applicability can be well traced from Article 13:

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.”

Meaning of Article 13:

The State shall not make any law which takes away/ shortens the rights conferred in Part III of the
Constitution i.e. 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 i.e., 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.

The significance of severability Doctrine shall be traced from the infamous case of AK Gopalan
v. State of Madras11 .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.

11 1950 SCR 88
The decision in HR Banthia v. Union of India 12 is also illustration of Severability Doctrine
Wherein the Supreme Court has 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.

Principle of territorial nexus:

The principle of Territorial Nexus was made embedded in Article 245(2). 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 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. But some nexus with India may still be necessary in some of the
cases such as those involving taxation statutes.

The Doctrine of Territorial nexus can be invoked under the following circumstances-

a) Whether a particular state has extra-territorial operation.

b) If there is a territorial nexus between the subject- matter of the Act and the state making the
law?

It throws the extra territorial application of the laws framed and hence 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.

The Nexus doctrine found its significance in State of Bombay v. RMDC wherein as per with the
facts the respondent was not residing in Bombay but he conducted Competitions with prize money
through a newspaper printed and published from Bangalore 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.

And also in Tata Iron & Steel Company vs. Bihar State 13 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.

12 1970 AIR 1453

13 1958 AIR 452
Principle of Implied powers

Meaning:

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.

Principle of incidental or ancillary powers

Meaning:

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 amplitude. 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 effect 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.

The case of Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City 14 is the
best illustration of Incidental powers Doctrine: The facts of the case were the appellant was assessed
by the Income Tax officer, Bombay (by an assessment order dated 31 st March, 1948) for the
assessment 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.

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?

14 1855 AIR 58
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?

The appeal is dismissed by the Supreme Court that 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 and in that 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.

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 effect 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.
 Bibliography

Statutes:

1. Government of India Act, 1935

2. Constitution of India, 1950
3. Bengal Money Lenders Act 1940
4. Bombay Prohibition Act, 1949
5. Berar Motor Vehicles (Amendment) Act 1948
6. Indian Income tax Act, 1922
7. Preventive Detention Act, 1950
8. Gold Control Act, 1968
9. General Clauses Act 1897
 Books

1. KP Chakravarthy, “Interpretations of Statutes”, 2nd, Allahabad : Central Law Agency, 2008

2. T. Bhattacharya, “The Interpretation of Statutes”, 8 th Ed., Allahabad : Central Law Agency,
2012
3. RD Srivastava, “Text Book of Interpretation of Statutes and Legislation”, 5 th, Allahabad :
Central Law Agency, 2009
4. Vepa P Sarathi, “Interpretation of Statutes”, 5th, Lucknow : Eastern Book Company, 2010
5. MP Jain, Indian Constitutional Law, Wadwa Nagpur, 5th, 537
6. VN Shukla, “Constitutional Law”, 6th, Wadhwa Nagpur: Lexis Nexis Butterworths, 2010