1.
Introduction
The Seventh Schedule of the Indian Constitution contains three subject lists- Union list for the centre,
State list for the states and the Concurrent list for both, the centre as well as the states. The lists lay
down the subjects each legislature is competent to legislate on. This well-defined scheme for division
of powers is to ensure that no legislature trespasses while exercising its powers and the sanctity of
the Constitutional scheme for the division of powers is preserved.
However, the actual working of our Constitution is a bit messier. The water-tight division of powers
laid down in the lists is bound to create conflicts since laws tend to deal with more than one subject.
When such conflicts arise, the courts take aid from various doctrines to help resolve these conflicts.
2. What are the Principles of Constitutional Interpretation?
The principles of constitutional interpretation guide courts in understanding and applying the
Constitution. These principles ensure that the Constitution remains relevant and adaptable to
changing societal needs. Key principles include:
1. Literal Interpretation: Focusing on the plain meaning of the text.
2. Harmonious Construction: Ensuring that different provisions of the Constitution do not
conflict and are interpreted in a way that all can coexist.
3. Doctrine of Pith and Substance: Determining the true nature of legislation to ascertain its
constitutional validity.
4. Doctrine of Colourable Legislation: Preventing legislatures from doing indirectly what they
cannot do directly under the Constitution.
5. Doctrine of Severability: Allowing parts of a law that are unconstitutional to be severed,
keeping the rest of the law intact.
Various principles of constitutional interpretation guide this process and the following are some of
the most frequently discussed in judicial decisions.
A. Doctrine of Harmonious Construction
The doctrine of harmonious construction applies to cases where provisions of the same statute
seem to contradict. The doctrine is based on the presumption that-
• The legislature did not intend to give one provision importance and consequently neglect
another; or
• To cause or maintain any contradiction between the two.
and that every provision should be given effect to the fullest extent possible.
Key Principles of Harmonious Construction:
1. Avoiding Neglect of Provisions: The legislature does not intend to prioritise one provision
over another, nor does it intend to create contradictions.
2. Ensuring Coherence: Conflicting provisions should be interpreted in a manner that allows
both to coexist without rendering any part ineffective or redundant.
1. Sultana Begum v. Prem Chand Jain, 1996
In this case, the Supreme Court elaborated on the doctrine, stating that conflicting provisions should
be interpreted to ensure neither is ignored. The court emphasised the need to read the statute as a
whole and to construe it in a way that maintains the effectiveness of all its provisions.
2. Jagdish Singh v. Lt. Governor, Delhi, 1997
Here, the Supreme Court reiterated the need to read statutes harmoniously, ensuring that no
provision becomes ineffective. The court emphasised that the objective of harmonious construction
is to avoid conflict and promote the smooth functioning of the legislative intent.
3. Shankari Prasad v. Union of India, 1951
Shankari Prasad v. Union of India addressed the objective of harmonious construction by stating that
when two articles of the Constitution are broadly phrased and conflict in their operation, they should
be controlled and qualified by each other to maintain harmony.
4. Ram Krishan v. Vinod, 1951
In this case, the Supreme Court resolved a conflict within the Representation of the People Act,
1951. Section 33 allowed government servants to nominate candidates, while Section 123 prohibited
them from assisting candidates except by voting. The Court harmoniously construed these
provisions, allowing government servants to nominate and vote for candidates, but prohibiting any
other form of assistance.
5. Bengal Immunity Co. v. State of Bihar, 1955
This case highlighted the limits of the doctrine. The Court held that conflicting provisions should be
interpreted to allow both to be effective. However, if it is impossible to harmonise the provisions, the
less useful provision can be ignored, provided there is no compulsion to adopt it.
B. Principle of Pith and Substance
The principle of pith and substance is used to determine the true nature and essential character of
a legislation, especially when there is a conflict regarding legislative competencies between the
Union and State legislatures. The doctrine signifies that it is the real subject matter which is to be
challenged and not its incidental effects on another field. The application of this doctrine can be
illustrated through Article 246 which enumerates the legislative competency mentioned in the lists
under the Seventh Schedule. It is pertinent to the fact that the legislature will make laws on the
subject matter enshrined under the lists, but there might be incidental trespass by the legislature
which ultimately result in the declaration of that specific law as ultra vires.
Key Features:
• True Nature and Substance: “Pith” refers to the true nature or essence of something, while
“substance” refers to its most important or essential part.
• Resolution of Conflicts: This doctrine of constitutional interpretation helps resolve conflicts
by determining which legislative field (Union List, State List or Concurrent List) a particular
piece of legislation falls into.
• Intra Vires vs. Ultra Vires: If the pith and substance of the legislation fall within the
legislative competence of the enacting body, it is deemed intra vires (within powers), even if
it incidentally encroaches upon matters outside its jurisdiction.
1. State of Bombay v. FN Balsara
In State of Bombay v. FN Balsara, the Bombay Prohibition Act, 1949, which prohibited the
sale and possession of liquor, was challenged for encroaching upon the Union List. The court
upheld the act because its pith and substance fell under the State List, despite incidental
encroachments on the Union List.
2. Premchand Jain v. R.K. Chhabra, 1984
In the case of Premchand Jain v. R.K. Chhabra (1984), the Supreme Court reiterated that
incidental encroachment does not render an enactment invalid. The Court held that if a law
primarily falls within the legislative powers granted by the Constitution to the enacting
legislature, it remains valid even if it incidentally encroaches on matters assigned to another
legislature.
3. State of Bombay v. Narottamdas, 1950
In State of Bombay v. Narottamdas (1950), the Supreme Court held that to validate incidental
encroachment, it must be shown that the pith and substance of the law lie within the
enacting legislature’s domain. The validity of a statute is determined by its true nature, not
merely by the degree of encroachment. If the core purpose and essence (pith and substance)
of the law fall within the legislative powers of the enacting body, the law is upheld.
4. Krishna v. State of Madras, 1956
The Madras Prohibition Act, enacted in 1937, faced a challenge over a decade later for
prescribing procedures and principles of evidence for trials. The appellants argued that the
Act contradicted the central Criminal Procedure Code, 1973. However, the court upheld the
Act, stating that it was ancillary to the central legislation. The court concluded that the Act, in
its pith and substance, pertained to intoxicating liquors—a matter within the state list.
C. Principle of Colourable Legislation
3 lists UNION, STATE AND CONCURRENT AND THEY CANNOT BRING LAW BEYOND THAT
The doctrine of Colourable Legislation interpretation is based on the Latin maxim “Quando aliquid
prohibetur ex directo, prohibetur et per obliquum,” ‘what cannot be done directly, cannot be done
indirectly’. It restricts legislatures from indirectly doing something which, due to want of jurisdiction,
they cannot do directly. This encroachment may be direct or indirect. In the case of the latter, the
expression ‘colourable legislation’ is applied. In other words, colourable legislation is a ‘fraud on the
constitution’.
The court employs the doctrine of Pith and Substance to determine if the legislature is competent to
enact the disputed statute. The extent of encroachment is a relevant factor while determining if the
enactment is colourable legislation.
Key Features:
• Legislative Competence: The principle is primarily concerned with whether a legislature has
the authority to enact a particular law.
• No Examination of Motives: It does not involve questions of legislative bona fides or mala
fides (good or bad faith).
• Direct vs. Indirect Legislation: The doctrine comes into play when a legislature tries to
achieve an objective indirectly that it cannot achieve directly due to constitutional
constraints.
1. State of Bihar v. Kameshwar Singh, 1952
The current case was to dispute the constitutional validity of the Bihar Land Reforms Act,
1950. The law provided that rent for the landlord’s land, before the date of acquisition of his
holding, was to vest with the state. However, half of this was to be given to the landlord as
compensation.
The Supreme Court opined this was naked confiscation as taking of the whole and returning
a half means nothing other than taking half. While its purported object was to lay down
principles for compensation, the actual object was simply confiscation- a subject under the
concurrent list. The Bihar Land Reforms Act was thus a piece of colourable legislation and
hence, void.
2. Naga People’s Movement for Human Rights v. Union of India, 1997
In this case, the Supreme Court clarified that the doctrine of Colourable Legislation is
applicable only in cases where-
1. The real intention is camouflaged; and
2. With the motive to encroach into the domain of another legislature.
The purpose of legislation may be different from what it appears. However, it is not a case of
Colourable Legislation if it does not deal with the competency of the legislature to enact it.
The doctrine does not take into account if the law was enacted with bona fide or mala
fide motives. The only question that merits consideration is if the substance of a statute falls
under the enacting legislature’s domain or not.
D. Doctrine of Repugnancy
Black law dictionary defines repugnancy as “Inconsistency or contradictory”, the doctrine is stated
under article 254, repugnancy arises when the provision of two law are so inconsistent and
irreconcilable that it is impossible to do one without disobeying the other
The doctrine of repugnancy addresses conflicts between state and central laws in India. Article 254 of
the Indian Constitution provides the framework for resolving such conflicts.
1. Article 254(1)
Article 254(1) stipulates that if a state law is repugnant, i.e., incompatible with a law that:
• the Parliament is competent to enact, or
• an existing law under the concurrent list.
Then, the central or existing law prevails over one made by the state. The state law is void to the
extent of such repugnancy. Which law was enacted earlier is not considered.
In the case of repugnancy, the repugnant provisions of the state law do not become ultra vires.
They simply eclipse. If the central law is repealed, they become operative again.
The doctrine of Pith and Substance is utilized to determine if the true nature falls to a matter under
the concurrent list. In case the repugnancy is to central law, it is considered if the parliament
intended to lay down an exhaustive code on the matter. If not, any qualification or restriction can not
be considered repugnant to the state law.
2. Article 254(2)
Article 254(2) can save a state law under the concurrent list if there arises any repugnancy to a
central law on the same matter.
Presidential assent to the state act would allow it to override any provisions of the central act.
However, the inconsistent provisions must be applied to the state only. Moreover, the laws must be
on the same matter, not two different fields. If there is no central law on the matter under the
concurrent list, the state law would stand.
While obtaining presidential assent, it needs to be specified that assent is sought for repugnancy
to a particular act. Failure would make the state law invalid. However, the Parliament can not repeal
any state law in the Concurrent list if it is not repugnant to the central law on the same matter.
The Supreme court placed yet another limit on the state act. In Pt. Rishikesh v. Salma Begum (1995),
it held that if a state act has received the assent of the President and subsequently, the centre enacts
another law conflicting with the state act, the central law would prevail.
Key Points:
• Presidential Assent: The state law can override the central law if it receives Presidential
assent, but it must be specified that the assent is sought for the repugnancy with a particular
act. Failing to specify this makes the state law invalid.
• State-Specific Application: The inconsistent provisions apply only within the state that
enacted the law.
• Subsequent Central Laws: If the central government enacts a new law conflicting with the
state act that had Presidential assent, the central law prevails, as held in Pt. Rishikesh v.
Salma Begum (1995).
1. Srinivasa Raghavachar v. State of Karnataka, 1987
The case involved a state law restricting legal practitioners from appearing before land
tribunals. The Supreme Court found the state law invalid due to its repugnancy to the
Advocates Act, 1961.
2. Sukumar Mukherjee v. State of West Bengal, 1993
The West Bengal State Health Service Act, 1990, barred state health service members from
private practice, conflicting with the Indian Medical Council Act, 1956, which allowed
practitioners to practice anywhere in India. The Court upheld the state law, distinguishing it
from the Srinivasa Raghavachar case by noting that health service members voluntarily gave
up private practice rights.
3. Kumar Sharma v. State of Karnataka, 1990
This case held that repugnancy must concern a matter in the Concurrent List. If the subject
matters of the conflicting laws are different, both can stand together. However, a dissenting
opinion argued that irreconcilable conflicts should lead to the state law being struck down.
4. Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State
of Tamil Nadu, 1996
This case dealt with a Tamil Nadu statute on the affiliation of medical colleges, challenged for
repugnance against the Indian Medical Council Act. The Court held that Parliament intended
to lay down an exhaustive code for the subject, making the state act invalid.
E. Principle of Severability
The doctrine of severability, provided for under Article 13 of the Indian Constitution, states that if
parts of a law are unconstitutional, those parts can be severed, leaving the rest of the law intact and
enforceable.
Key Features:
• Severable vs. Inseverable: The unconstitutional provisions are severed if the remaining law
can still function independently and effectively.
• Constitutional Provisions: This principles of constitutional interpretation states that laws
that contravene fundamental rights are void to the extent of inconsistency.
• Preservation of Legislation: Courts strive to preserve as much of the legislation as possible
by severing only the unconstitutional parts.
1. AK Gopalan v. State of Madras
In AK Gopalan v. State of Madras, 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.
F. Principle of Eclipse
The doctrine of eclipse states that a law inconsistent with fundamental rights is not entirely
invalid but remains inoperative to the extent of the inconsistency. This inconsistency can be
removed through constitutional amendments, thereby reviving the law.
Key Features:
• Inoperative vs. Invalid: The law does not become null and void but is overshadowed by the
fundamental right.
• Constitutional Amendments: The eclipse can be removed if a constitutional amendment
eliminates the inconsistency.
• Pre-Constitution Laws: This principle particularly applies to laws that existed before the
commencement of the Constitution and became inoperative due to conflicts with
fundamental rights.
1. Keshavan Madhava Menon v. The State of Bombay
In the landmark case of Keshavan Madhava Menon v. The State of Bombay, the issue
revolved around a law that existed before the Indian Constitution came into force. This pre-
constitution law imposed restrictions on the right to practice any profession, trade or
business, which is guaranteed to citizens of India under Article 19(1)(g).
Key Points of the Case:
• Existing Law: The law in question was already in force when the Constitution was enacted.
• Inconsistency with Fundamental Rights: The restrictions imposed by this law could not be
justified as reasonable under clause (6) of Article 19, which allows for reasonable restrictions
on the right to practice any profession, trade or business.
• Article 13(1): According to Article 13(1), any pre-constitution law that is inconsistent with the
fundamental rights conferred by Part III of the Constitution becomes void to the extent of
such inconsistency.
Supreme Court’s Ruling:
The Supreme Court held that the law did not become void in its entirety or for all purposes,
times and persons. Instead, it became void only “to the extent of such inconsistency.” This
meant that the law remained valid except for the parts that were inconsistent with the
fundamental rights enshrined in Part III of the Constitution.
The Court clarified that the law’s invalidity was limited to its conflict with the new
constitutional provisions. As a result, the law was not entirely abrogated but was rendered
inoperative only to the extent that it infringed upon the fundamental rights of the citizens.
