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Operation of Statutes: - Other Important Considerations

- The document discusses key considerations regarding the operation of statutes, including the presumption of constitutionality, territorial nexus, and legislative powers. - It notes that statutes are presumed to be constitutional, and the burden is on those challenging a statute to prove it exceeds legislative competence beyond reasonable doubt. A statute will also be interpreted to uphold its validity if two interpretations are possible. - There is a presumption that statutes only apply within the territory of the enacting legislature. However, statutes can apply extra-territorially if there is a sufficient territorial nexus or connection between the subject matter and the enacting state. - Legislative powers are conferred by the Constitution and the legislature is

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51 views32 pages

Operation of Statutes: - Other Important Considerations

- The document discusses key considerations regarding the operation of statutes, including the presumption of constitutionality, territorial nexus, and legislative powers. - It notes that statutes are presumed to be constitutional, and the burden is on those challenging a statute to prove it exceeds legislative competence beyond reasonable doubt. A statute will also be interpreted to uphold its validity if two interpretations are possible. - There is a presumption that statutes only apply within the territory of the enacting legislature. However, statutes can apply extra-territorially if there is a sufficient territorial nexus or connection between the subject matter and the enacting state. - Legislative powers are conferred by the Constitution and the legislature is

Uploaded by

Subh Ashish
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© © All Rights Reserved
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OPERATION OF

STATUTES

- OTHER IMPORTANT
CONSIDERATIONS -
Brief Synopsis

 Operations controlled on Considerations of


constitutionality.

 Operations controlled on Considerations of


territorial nexus.
1.) PRESUMPTION OF
CONSTITUTIONALITY
Ut res magis
valeat quam
perat

Burden to prove
legislative
competence on
the one who
challenges

Legislative Presumption
incompetence to that statute
be proved beyond does not exceed
reasonable doubt its jurisdiction
If two interpretations are open…

One that upholds

interpretation
the validity

Proper
Another that
makes the statute
ultra vires
Legislative Powers

Leg. Powers to Conferred by Art. 246 Legislature


Parliament & State & distributed by supreme within its
Leg. Lists-I, II & III own sphere
Therefore, what is to be seen

Entries as fields of
legislation to
receive widest If specific entry is
construction provided in the other
list, the import could be
cut down
It will cover all
ancillary or
subsidiary matters
Therefore…

• General words may, therefore, be


construed, narrowly or widely, w.r.t. the
powers of the Legislature and their
meaning applied to those matters in
respect of which the legislative
competence exists.
(i) Pith & Substance
AVOIDANCE OF REPUGNANCY
Avoidance of
Repugnance

Repugnance may also


arise when superior
legislation evinces an
intention to cover the
entire field

If conflict between
competing legislations
Harmonious
cannot be reconciled Construction
then repugnance is
there to be made
ii.) Severability
Severance of the unconstitutional from the constitutional

Constitutional
Segment that is
unconstitutional
Meaning of the Doctrine

• This doctrine means that if any particular


provision of the statute is unconstitutional
and that provision is independent of or
severable from the rest, only the offending
provision will be declared invalid by the
Court and if it is not separable, the whole of
the statute shall fail.
DOCTRINE OF SEVERABILITY
After severance if it leads to a complete code

Original Enactment
The Costitutionally
Valid Portion after
severance

Enforceable
Unenforceable
2.) PRESUMPTION OF
TERRITORIALITY

 PRESUMPTION OF TERRITORIAL NEXUS

 PRESUMPTION AGAINST EXTRA


TERRITORIAL OPERATION
THE PRESUMPTION HAS A
RICH HISTORY

Non- Colonies
Sovereign
Legislatures
Other
Provincial
Legislature
s

They were incompetent to legislate with


extra-territorial effect.
However….the Government of
India Act, 1935
●
The Federal Legislature was empowered to
‘make laws for the whole or any part of
Sec.99(1) British India’ and Provincial Legislatures
were empowered to make laws for the
Province or any part thereof.

Sec. Certain matters were enumerated and it was


●

provided that no Federal Law shall, on the


ground that it would have extra territorial

99(2) operation, be deemed to be invalid in so far as


it applied to those enumerated matters.
Art.2(7) of the UN Charter

nothing contained in the present Charter


shall authorize the United Nations to
intervene in matters which are essentially
within the domestic jurisdiction of any
state or shall require the members to
submit such matters to settlement under
the present Charter.
But….
Art.245: ‘No law made by
Parliament shall be deemed to
be in valid on the grou nd that
it wou ld have extra-territorial
nexus.’

Th
e
doc
trin
e of
ter
rito
rial
nex
us
has
bee
n
app
lied
to
Sta
te
Act
s
un
der
the
Co
nsti
tuti
on.
Some poignant connection

State

People, interests,
Safety, property, tax imposition,
Criminal liability, effect on business etc.
Vijay Mallya
Extradition Case
Mehul Choksi and Nirav
Modi
PNB Scam
Nadeem Saifi
Extradition Case
TERRITORIAL NEXUS
• Sufficiency of the territorial connection
involves a consideration of two elements,
namely:
(a)The connection must be real and not
illusory;
and
(b) The liability sought to be imposed must
be pertinent to that connection.
Khyerbari Tea Co. v. State of Assam
AIR 1964 SC 925

Tea carried by Starting &


producers in destination point
West Bengal both in West Bengal

Traversed
through the
inland waterways

of the State Held: Rational nexus


of St. of Assam to tax
of Assam the goods
R.M.D. Chamarbaugwala v. UOI
AIR 1957 SC 628

The Supreme Court adopted the


“nexus” theory
The court observed
• The standing invitations, the filling up of forms and
the payment of money, take place within the State
which is seeking to tax only the amount received from
the petitioners from the State of Bombay. The tax is
on gambling although collected from the promoters.
All these, we think constitute sufficient territorial
nexus which entitles the State of Bombay to impose a
tax on the gambling that takes place within its
boundaries and the law cannot be struck down on
ground of extra-territoriality.
OTHER RELEVANT
CONSIDERATIONS
RELEVANT TO
OPERATION
(a) Presumption that Legislation is
ended, in the
Act, 1969
y language
whole or clear
of Ind
ate on events
of outside
ons J&K. the The
ia
territorial
hathe
territorial
statutes are

he
fo
,
e
MR
P
o
m
si
n
an
ot
xe
is

ri
dic
on

s
ect

oo
s
uts
e
ndi

nti

re
mp
rte

to
ndi
The ‘effects’ doctrine- Some examples

The MRTP Act, 1969 The Income Tax legislations


• …if any agreement • Either the source from
executed outside India has which the taxable income is
the effect of eliminating derived should be within
competition or competitor the territorial limits of the
of the sale of goods in India country imposing the tax or
and the same is prejudicial the person whose income is
to public interest the to be taxed should be
commission has resident there.
jurisdiction to enquire into
it.
(b) Operation as to foreigners: Regard to
Principles of International Law in that
respect
A statute is not intended to apply to persons
1.)
●

outside the territories of the State enacting it.

●
Therefore, w.r.t. foreigners there is another
2.) presumption that the legislature intends to respect the
rules of International Law.

Without anything more Indian Statutes are ineffective

3.)
●

against foreign property and foreigners outside the


jurisdiction.
(b2) Acts passed to give effect to
international treaties and conventions
The power of entering into
a treaty or international
ag reement or convention is
a sovereign power o f the
State.

As
per
Art
51(c
)
that
lays
dow
n
that
Stat
e
shal
l
end
eav
or
to
fost
er
resp
ect
for
Inte
rnat
iona
l
Law
and
trea
ty
obli
gati
ons.
The Status in India
International Law
branch of the

The rules of
international l
not contrary to
are deemed t
incorp orated in
law

The Supreme Court seeks to


give effect to international
conventions & statutes that
are made for this purpose

an d ‘Precau tion
have been incor
Environmen t P
tr
are exampl
Mehta v. U

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