Principles of constitutional interpretation of list prepared by Rajashree J Jawale

THE PRINCIPLES OF CONSTITUTIONAL
INTERPRETATION
Rajashree J Jawale
Assistant Proffesor
Ismailsahebmulla Law College Satara
THE PRINCIPLES OF CONSTITUTIONAL
INTERPRETATION
Explain,"In the interpretation of constitution, the
judicial approach should be dynamic than
static, pragmatic than pedantic, and elastic than
rigid". Describe – Harmonious Construction,
Doctrine of Pith and Substance, Colourable
Legislation, Proviso, Doctrine of Eclipse,
Principle of separation.What is the proper
function of a proviso? Can it affect the enacting
portion of a section as well?
INTRODUCTION
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. As is the case with any other
statute, the court tries to find out the intention of the
framers of the constitution from the words used by
them.
CASE OF STATE
OF BIHAR VS KAMESHWAR SINGH AIR 1952,
it must be validated with the spirit of the constitution
as reflected by the words of the
constitution. In the same case mentioned above, SC
observed that spirit of the constitution cannot
prevail if the language of the constitution does not
support that view.
CONT…
SC used one of the standard principles of
interpretation that where more than one reasonable
interpretation of a constitutional provision are
possible, that which would ensure a smooth and
harmonious working of the constitution shall be
accepted rather than the one that would lead to
absurdity or give rise to practical inconvenience, or
make well existing provisions of existing law
nugatory, while interpreting the constitution
IN KESHVANANDA BHARATI VS STATE OF
KERALA, AIR
1973,
SC identified the basic structure of the constitution
that reflects its true spirit and held that nothing that
hurts the basic structure of the constitution, is
constitutional. In the same case, SC held that one should
give the freedom to the parliament to enact laws that
ensure that the blessings of liberty be shared with all, but
within the framework of the constitution. It is necessary
towards that end that the constitution should not be
construed in a narrow and pedantic sense.
CONT…
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.
THE FOLLOWING ARE SOME OF THE KEY PRINCIPLES APPLIED
SPECIALLY IN INTERPRETING THE PROVISIONS OF THE
CONSTITUTION
1. Principle of Harmonious construction
2. Doctrine of pith and substance
3. Doctrine of Colourable legislation
4. Principle of Ancillary powers
5. Principle of Occupied field
6. Residuary power
7. Doctrine of repugnancy
8. Principle of Territorial Nexus
9. Doctrine of stare decisis
10. Doctrine of prospective overruling
PRINCIPLE OF HARMONIOUS CONSTRUCTION
“Constitutional provisions should not be construed in
isolation from all other parts of the Constitution, but
should be construed as to harmonize with those other
parts.”
A provision of the constitution must be construed and
considered as part of the Constitution and it should be
given a meaning and an application which does not lead
to conflict with other Articles and which confirms with the
Constitution’s general scheme.
When there are two provisions in a statute, which are in
apparent conflict with each other, they should be
interpreted such that effect can be given to both and that
construction which renders either of them inoperative and
useless should not be adopted except in the last resort.
DOCTRINE OF PITH AND SUBSTANCE
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
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.
DOCTRINE OF COLOURABLE LEGISLATION
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
round about 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.
PRINCIPLE OF ANCILLARY POWERS
Principle of Incidental or Ancillary Powers
 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
PRINCIPLE OF OCCUPIED FIELD
RESIDUARY POWER
DOCTRINE OF REPUGNANCY
PRINCIPLE OF TERRITORIAL NEXUS
THANK YOU
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Principles of constitutional interpretation of list prepared by Rajashree J Jawale

  • 1. THE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION Rajashree J Jawale Assistant Proffesor Ismailsahebmulla Law College Satara
  • 2. THE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION Explain,"In the interpretation of constitution, the judicial approach should be dynamic than static, pragmatic than pedantic, and elastic than rigid". Describe – Harmonious Construction, Doctrine of Pith and Substance, Colourable Legislation, Proviso, Doctrine of Eclipse, Principle of separation.What is the proper function of a proviso? Can it affect the enacting portion of a section as well?
  • 3. INTRODUCTION 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. As is the case with any other statute, the court tries to find out the intention of the framers of the constitution from the words used by them.
  • 4. CASE OF STATE OF BIHAR VS KAMESHWAR SINGH AIR 1952, it must be validated with the spirit of the constitution as reflected by the words of the constitution. In the same case mentioned above, SC observed that spirit of the constitution cannot prevail if the language of the constitution does not support that view.
  • 5. CONT… SC used one of the standard principles of interpretation that where more than one reasonable interpretation of a constitutional provision are possible, that which would ensure a smooth and harmonious working of the constitution shall be accepted rather than the one that would lead to absurdity or give rise to practical inconvenience, or make well existing provisions of existing law nugatory, while interpreting the constitution
  • 6. IN KESHVANANDA BHARATI VS STATE OF KERALA, AIR 1973, SC identified the basic structure of the constitution that reflects its true spirit and held that nothing that hurts the basic structure of the constitution, is constitutional. In the same case, SC held that one should give the freedom to the parliament to enact laws that ensure that the blessings of liberty be shared with all, but within the framework of the constitution. It is necessary towards that end that the constitution should not be construed in a narrow and pedantic sense.
  • 7. CONT… 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.
  • 8. THE FOLLOWING ARE SOME OF THE KEY PRINCIPLES APPLIED SPECIALLY IN INTERPRETING THE PROVISIONS OF THE CONSTITUTION 1. Principle of Harmonious construction 2. Doctrine of pith and substance 3. Doctrine of Colourable legislation 4. Principle of Ancillary powers 5. Principle of Occupied field 6. Residuary power 7. Doctrine of repugnancy 8. Principle of Territorial Nexus 9. Doctrine of stare decisis 10. Doctrine of prospective overruling
  • 9. PRINCIPLE OF HARMONIOUS CONSTRUCTION “Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.” A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application which does not lead to conflict with other Articles and which confirms with the Constitution’s general scheme. When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort.
  • 10. DOCTRINE OF PITH AND SUBSTANCE 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 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.
  • 11. DOCTRINE OF COLOURABLE LEGISLATION 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 round about 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.
  • 12. PRINCIPLE OF ANCILLARY POWERS Principle of Incidental or Ancillary Powers  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