Open Access Research Article
A CRITICAL ANALYSIS OF PRINCIPLES APPLIED BY COURTS FOR THE INTERPRETATION OF LEGISLATIVE LISTS By – SIDDHIL SHAH
Published Paper
Article Details
A CRITICAL ANALYSIS OF PRINCIPLES APPLIED
BY COURTS FOR THE INTERPRETATION OF LEGISLATIVE LISTS
Authored By – SIDDHIL SHAH
Third year law student Christ University
Abstract
This paper lays down and analyses the various principles that are used by
courts to interpret legislative lists
and give meaning
to the laws enacted by legislative bodies. The approach used by the court may vary depending on the
facts and circumstances of each case, and the court may apply one or more of these principles in determining the meaning and intent of a law. For giving effect to the various items in the
different lists the Courts have applied mainly the following principles - Plenary Powers, Harmonious Construction,
Pith and Substance Rule, Colourable
Legislation, Literal Rule, Golden Rule, Mischief Rule, Purposive Approach and Ejusdem
Generis. These principles have been widely discussed in the Indian legal
literature, and the Indian courts
have consistently applied these principles in their interpretations of legislative lists. These are just few guiding principles which the Courts
have evolved, to resolve the disputes which
may arise about the competence of law passed
by Parliament or by any State Legislature. The interpretation of these
lists is crucial to ensure the proper functioning of the federal system. The Union List should not be interpreted so
narrowly as to prevent the Union government
from effectively carrying out its responsibilities, nor should the State List
be interpreted so broadly as to give
the state governments undue authority. The Concurrent List should be interpreted in a manner that
allows both levels of government to effectively address the subject in question, while avoiding conflicts between
their laws. The interpretation of legislative
lists is influenced by various factors, including judicial decisions,
constitutional amendments, and
changing societal needs. The courts have a key role in interpreting the lists, as they are often called upon to resolve disputes
between the Union and state governments. The courts
must balance the need to maintain the integrity of the federal system with the
need to address changing
societal needs and provide effective
governance. In conclusion, the interpretation of
legislative lists is a crucial aspect of the functioning of a federal system of government. It determines the extent of
the powers of the central and state governments, and must be performed in a manner that balances the need for
effective governance with the need to maintain
the integrity of the federal
system. The courts
have a key role in this interpretation, as they are often
called upon to resolve
disputes between the levels of government.
Key Words: Interpretation, Principles, Legislative
Lists, Plenary, Harmonious Construction, Pitch
and Substance, Colourable Legislation, Literal, Golden, Mischief, Purposive,
Ejusdem Generis.
Research Problem
The interpretation of legislative lists in India can be a complex and
challenging research problem due to
the conflicting interpretations of provisions within the Constitution of India. The legislative lists, also known as the
Union List, State List and Concurrent List, determine the powers and responsibilities of the central
government and state governments in India. This research problem
involves exploring the ambiguities and lacunae in the constitutional provisions regarding the interpretation of the legislative
lists. It also involves examining the judicial
pronouncements on the matter, and their impact on the distribution of powers
and responsibilities between the
central and state governments. Moreover, this research problem involves
exploring the practical implications of the interpretation of legislative lists on policy-
making, implementation and enforcement at both the central and state
levels. It also involves analysing
the role of the judiciary in resolving disputes arising from the interpretation
of the legislative lists. Overall,
the research problem of interpretation of legislative lists in India is a crucial aspect of the constitutional law
and federalism in India, and requires in-depth analysis and understanding to
ensure an effective and efficient governance system.
Literature Review
Constitution of India mentions the legislative lists in the Seventh
Schedule of the Constitution of India. It provides
a detailed interpretation of the powers
of the central and state governments to make laws in the country. The
legislative lists are further explained in various Central and State acts and rules, which give a clear
understanding of the scope of the laws made by the respective governments. The interpretation of the legislative
lists has been a subject of several landmark
judgments by the Supreme Court of India and High Courts, which provide guidance on the distribution of legislative
powers between the central and state governments. There are several commentaries and textbooks
available on the Constitution of India, which provide an in-depth analysis of the legislative lists and their interpretation. Some of the textbooks referred
to by the author of this paper include – Indian Constitutional Law (MP
Jain), Constitutional Law of India
(JN Pandey) and Comparative Constitutional Law (DD Basu). Legal databases like Manupatra and SCC Online, as well as
websites like Mondaq, provide access to relevant laws and judicial
decisions on the interpretation of
the legislative lists
in India.
Research Paper
Introduction
The term ‘legislation’ has been derived
from the Latin
words ‘legis’ meaning
‘law’ and ‘latum’
meaning to ‘make’. Therefore, etymologically, legislation means to make
the law. Legislation is considered
one of the most important sources of law. It
is very crucial in a democratic society,
especially where there is a federal type of government or a very highly
complicated form of government.
Legislation when used as a source of law is denoted to be a law made by defined persons or bodies and not by any
type of customary or conventional laws or judicial decisions, it is rather termed as an enacted law. There is a
difference of opinion regarding the importance
of legislation as a source of law. Analytical jurists emphasize the importance
of legislation on the other hand
historical jurists attach no importance to legislation. There are three types of legislative lists: Union,
State and Concurrent List. These three lists form an important part of the functioning of a federal government. It
also enhances legal sovereignty among
the government. Article 246[1]
deals with the distribution of legislative powers between the central government and the state
governments. Overall, Article 246 provides a framework for the distribution of legislative powers between the central government and state governments, ensuring that both have the
power to make laws on subjects of importance to them, while also ensuring
that there is no overlap or conflict between their respective laws.
Union List[2]
The Seventh Schedule of the Indian
Constitution talks about the lists.
List I of Article 246 states the Union List. The Union List consists
of various subjects like a defence of India, naval, military, air, armed forces, CBI, industries declared by
Parliament necessary for defence, foreign
affairs, diplomatic, consular, trade relations, UNO, war, peace, extradition,
railways, citizenships, currency,
RBI, etc. The List contains 97 numbered items. Entry 33 was deleted and Entry 2-A, 92-A, 92-B, and 92-C have been added by amendments. In a simpler
language, it can be stated
that the List contains all those subjects which are of utter national
importance. In this List, the Central Government enjoys supreme power.
State List[3]
The
State List is also contained in the Seventh Schedule of the Constitution. List
II of Article 246 states
the State List. The State
List consists of various subjects
like public order
excluding naval military
or air forces, High Courts,
revenue courts, district
courts, prisons, reformatories, borstal institutions, local
governments, public health sanitation, hospital, burial grounds, pilgrimage, disabled and unemployed peoples,
agriculture, water, roads, highways, etc. The List contains approximately 66
items. Entries 19, 20, 29 and 36 have been deleted by amendments. The State List contains all those subjects which
are solely dedicated to the state level. The State Government has jurisdiction over this List.
Concurrent List[4]
The Concurrent List is also contained in the Seventh
Schedule. List III of Article
246 states the Concurrent List. The Concurrent List contains subjects
like criminal law, a criminal
procedure including Codes for
Criminal Procedure, marriage, divorce, adoptions, wills, successions, moving prisoners from one reform
to another, contracts, partnerships, bankruptcy, insolvency, trust & trustees,
contempt of court, migratory tribes,
prevention of cruelty
to animals, protection of wildlife and forests,
population control, etc. The List contains approximately 47 items. New Entries 11-A, 17-A, 17-B. 20-A
and 33-A have been added by amendment. Concurrent List mostly comprises
those subjects which are of equal importance to both Centre
and the State,
therefore in such cases both the
Union and the State have jurisdiction. The main purpose
of this list was to avoid
excessive rigidity to two list distribution.
Residual powers
The Constitution[5] vests
residuary powers in the Parliament. It is to be noted
that certain subjects
are neither mentioned in the State List nor the Concurrent List. These
subjects are also not exclusively
mentioned in the Union List. However, during the time of need regarding those subjects,
the Union will have sole jurisdiction
over those subjects.
Principles Applied
1. Plenary Powers: The first and foremost rule
is that if legislative power is granted with
respect to a subject and there are no limitations imposed on the power, then it is to be given the widest scope that its words are capable of, without, rendering
another item nugatory. In the words of C.J. Gajenderagadkar, “It is 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. A general word used in an entry
must be construed to extend
to all ancillary or subsidiary matters which can fairly and reasonably be held to be included
in it”[6]. Thus, a
legislature to which a power is granted over a particular subject may make law on any aspect or on all aspects of it;
it can make a retrospective law or a prospective law and it can also make law on all matter’s ancillary
to that matter.
For example, if power to collect taxes is granted to a
legislature, the power not to collect taxes or the power to remit taxes
shall be presumed to be included within the power to collect taxes.
2. Harmonious Construction: Different
entries in the different lists are to be interpreted in such a way that a conflict between
them is avoided
and each of them is given effect.
It must be accepted that the Constitution does not want to create
conflict and make any entry nugatory. Therefore, when there appears
a conflict between
two entries in the two different lists the two entries should be so
interpreted, that each of them is given effect and, for that purpose
the scope and meaning of one may be restricted so as to give meaning
to the other also.
3. Pith and Substance
Rule: The rule of pith and substance
means that where a law in reality
and substance falls within an item on which the legislature which
enacted that law is competent to legislate, then such law shall not become invalid
merely because it incidentally touches
a matter outside
the competence of legislature. In a federal
Constitution, as was observed by C.J. Gwyer “it must inevitably happen
from time to time that legislation
though purporting to deal with a subject in one list touches also upon a subject in another list, and the different
provisions of the enactment may be so closely
intertwined that blind adherence to a strictly verbal interpretation
would result in a large number of statutes being declared invalid
because the legislature enacting them may appear to have legislated in a forbidden sphere”[7].
Therefore, where such overlapping occurs, the
question must be asked, what is, “pith and substance” of the enactment
in question and in which list its
true nature and character is to be found. For this purpose, the enactment as a whole with its object and effect must be considered. By way of illustration, acting on entry 6 of List II which reads “Public Health and Sanitation”. Rajasthan Legislature passed
a law restricting the
use of sound amplifiers. The law was challenged on the ground that it dealt with a matter
which fell in entry 31 of List I which reads: “Post and telegraphs, telephones, wireless
broadcasting and other like forms of communication”, and, therefore, the State Legislature was not competent
to pass it. The Supreme
Court rejected this argument on the ground that the object of the law was to
prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was “public
health” and not “broadcasting”[8].
4.
Colourable
Legislation: It is, in a way, a rule of interpretation almost opposite to
the Pith and Substance Rule. The
Constitution does not allow any transgression of power by any legislature, either directly or
indirectly. However, a legislature may pass a law in such a way that it gives it a colour
of constitutionality while, in reality, that law aims at achieving
something which the legislature could
not do. Such legislation is called colourable piece of legislation and is invalid.
In the case of Kameshwar
Singh v. State of Bihar,
The Bihar Land
Reforms Act, 1950 provided that the unpaid rents by the tenants shall
vest in the state and one half of them shall be paid back by the State to the landlord or zamindar as compensation for acquisition of unpaid rents[9].
According to the provision in the State List under which the above law was passed,
no property should be acquired
without payment of compensation.
The question was whether the taking of the whole unpaid rents and then returning
half of them back to them who were entitled
to claim, (i.e.,
the landlords) is a law which
provides for compensation. The Supreme Court found that this was a colourable exercise of power of acquisition by the
State legislature, because “the taking of the whole and returning a half means nothing more or less than taking
off without any return and this is naked confiscation, no matter in whatever specious
form it may be clothed
or disguised.” The motive of the legislature is,
however, irrelevant for the application of this doctrine. Therefore, if a legislature is authorised to do a particular thing directly or indirectly, then it is totally
irrelevant as to with what motives – good or bad – it
did that.
5. Literal Rule: This principle holds that the words
of a statute should be given their plain and
literal meaning, regardless of the consequences. This approach is used when the wording of the law is clear and
unambiguous. The literal rule means that a judge has to consider what the statute says ‘literally,’ i.e., its simple plain meaning
without any ambiguity. It is said that the words themselves best declare the intention of the law-givers[10].
6. Golden Rule: This principle allows for a
departure from the literal rule in cases where the plain meaning of the statute leads to absurdity or injustice.
The court may choose to look at the
purpose of the statute and the intention of the legislature to give a more
sensible interpretation. In Ramji Missar
v. State of Bihar in construing section
6 of the Probation of Offenders
Act, 1958, the Supreme Court laid down that the crucial date on which the age of the offender had to be determined is
not the date of offence, but the date on which the sentence is pronounced by the trial court An accused who on the date of offence was below 21 years of age but on the date on which
the judgment pronounced, if he was above 21 years,
he is not entitled to the benefit of the statute[11].
7. Mischief Rule: This principle states that a court
should interpret a statute so as to remedy
the mischief it was enacted to address, while at the same time
preserving its spirit and intention.
The mischief rule was established in Heydon’s Case in 1584[12].
It was held that the mischief rule
should only be applied where there is ambiguity in the statute. Under the mischief rule the Court’s role is to
suppress the mischief and advance the remedy. The Courts while applying
the principle tries to find out the real intention
behind the enactment. This rule thus assists the court in identifying the proper
construction of statutory wording according to the original
intention of the legislators. As per this rule, for true interpretation of a statute, four things have to be
considered:
o What was the common
law before the making of the
Act?
o What was the
mischief and defect for which the common law did not provide?
o What remedy Parliament had resolved and appointed to cure the disease of the Commonwealth?
o What is the true reason of
the remedy?
The mischief rule directs that the Courts must adopt that construction which “shall suppress
the mischief and advance the remedy.” But this does not mean that a construction should be adopted which ignores the plain
natural meaning of the words or disregard the
context and the collection in
which they occur[13].
In Sodra Devi’s
case, the Supreme Court has expressed
the view that the rule in Heydon’s
case is applicable only when the words in question are ambiguous and are
reasonably capable of more than one
meaning[14].
8. Purposive Approach: This principle is based on
the idea that a court should look beyond the
literal words of a statute to determine its purpose and the intention of the
legislature. This approach takes into
account the context and circumstances surrounding the creation of the law. In the case of Rananjaya Singh
v. Baijnath Singh[15], the Hon’ble Court
observed that “the spirit of
the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect in
opposition to the plain language of the sections of the Act and the Rules made thereunder. If all that can be said of
these statutory provisions is that construed
according to the ordinary, grammatical and natural meaning
of their language
they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and not to the Court.”
9. Ejusdem Generis:
This principle holds that when a general
word follows a list
of specific words,
the general word should be interpreted as referring to things of the same kind as the specific words listed. In Lilavati Bai v.
Bombay State[16],
the petitioner was the widow of a tenant
of certain premises and she had vacated from such premises. Finding the
premises vacant, the respondent
requisitioned the premises under Section 6(4)(a) of the Bombay Land Requisition Act, 1948, for the public
purpose of housing a government servant. One
of the contentions of the petitioner was that under the Explanation to
the sub-section there would be
deemed to be a vacancy when the tenant 'ceases to be in occupation upon termination of his tenancy, eviction or
assignment or transfer in any other manner of his interest in the premises or otherwise', and that the words 'or otherwise' should be construed as Ejusdem Generis with the words immediately preceding them.
It was held: the rule Ejusdem Generis
sought to be expressed in aid of the petitioner can possibly have no
application.
[2] List I, Schedule VII, Constitution of India, 1950.
[3] List II, Schedule VII, Constitution of India,
1950.
[5] Article 248, Constitution of India, 1950.
[6] Jagannath
Baksh Singh v. State
of U.P., AIR 1962 SC
1563.
[7] Prafulla Kumar v.
Bank of Khulna, AIR 1947
PC 60.
[10] Special Deputy Collector, LA Unit v. Dasari Ramulu 2001 AIHC 387 (AP).
Article Information
A CRITICAL ANALYSIS OF PRINCIPLES APPLIED BY COURTS FOR THE INTERPRETATION OF LEGISLATIVE LISTS By – SIDDHIL SHAH
Authors: SIDDHIL SHAH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/25
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.