Gvk Inds. Ltd & Anr vs The Income Tax Officer & Anr

GVK INDS. LTD. & ANR. ...APPELLANTS

VERSUS

THE INCOME TAX OFFICER

& ANR. ...RESPONDENTS

JUDGEMENT

B.SUDERSHAN REDDY,J:

1. In any federal or quasi federal nation-state, legislative

powers are distributed territorially, and legislative competence is

often delineated in terms of matters or fields. The latter may be

thought of as comprising of aspects or causes that exist

independently in the world, such as events, things, phenomena

(howsoever commonplace they may be), resources, actions or

transactions, and the like, that occur, arise or exist or may be

expected to do so, naturally or on account of some human

agency, in the social, political, economic, cultural, biological,

1

environmental or physical spheres. The purpose of legislation

would be to seek the exertion of the State power to control,

modulate, transform, eliminate or engender such aspects or

causes or the effects or consequences of such aspects or causes.

While the purpose of legislation could be seen narrowly or purely

in terms of intended effects on such aspects or causes, obviously

the powers have to be exercised in order to enhance or protect

the interests of, the welfare of, the well-being of, or the security

of the territory, and the inhabitants therein, for which the

legislature has been charged with the responsibility of making

laws. Paraphrasing President Abraham Lincoln, we can say that

State and its government, though of the people, and constituted

by the people, has to always function "for" the people, indicating

that the mere fact that the state is organized as a democracy

does not necessarily mean that its government would always act

"for" the people. Many instances of, and vast potentialities for,

the flouting of that norm can be easily visualized. In

Constitutions that establish nation-states as sovereign

democratic republics, those expectations are also transformed

into limitations as to how, in what manner, and for what

purposes the collective powers of the people are to be used.

2 2. The central constitutional themes before us relate to

whether the Parliament's powers to legislate, pursuant to Article

245, include legislative competence with respect to aspects or

causes that occur, arise or exist or may be expected to do so,

outside the territory of India. It is obvious that legislative powers

of the Parliament incorporate legislative competence to enact

laws with respect to aspects or causes that occur, arise or exist,

or may be expected to do so, within India, subject to the division

of legislative powers as set forth in the Constitution. It is also

equally obvious and accepted that only Parliament may have the

legislative competence, and not the state legislatures, to enact

laws with respect to matters that implicate the use of state

power to effectuate some impact or effect on aspects or causes

that occur, arise or exist or may be expected to do so, outside

the territory of India.

3. Two divergent, and dichotomous, views present themselves

before us. The first one arises from a rigid reading of the ratio in

Electronics Corporation of India Ltd., v. Commissioner of Income

Tax & An'r.,1 ("ECIL") and suggests that Parliaments powers to

1 (1989) (2) SCC 642-646

3

legislate incorporate only a competence to enact laws with

respect to aspects or causes that occur, arise or exist, or may be

expected to do so, solely within India. A slightly weaker form of

the foregoing strict territorial nexus restriction would be that the

Parliament's competence to legislate with respect to extra-

territorial aspects or causes would be constitutionally permissible

if and only if they have or are expected to have significant or

sufficient impact on or effect in or consequence for India. An

even weaker form of the territorial nexus restriction would be

that as long as some impact or nexus with India is established or

expected, then the Parliament would be empowered to enact

legislation with respect to such extra-territorial aspects or

causes. The polar opposite of the territorial nexus theory, which

emerges also as a logical consequence of the propositions of the

learned Attorney General, specifies that the Parliament has

inherent powers to legislate "for" any territory, including

territories beyond India, and that no court in India may question

or invalidate such laws on the ground that they are extra-

territorial laws. Such a position incorporates the views that

Parliament may enact legislation even with respect to extra-

territorial aspects or causes that have no impact on, effect in or

4

consequence for India, any part of it, its inhabitants or Indians,

their interests, welfare, or security, and further that the purpose

of such legislation need not in any manner or form be intended to

benefit India.

4. Juxtaposing the two divergent views outlined above, we

have framed the following questions:

(1) Is the Parliament constitutionally restricted from

enacting legislation with respect to extra-territorial aspects

or causes that do not have, nor expected to have any,

direct or indirect, tangible or intangible impact(s) on, or

effect(s) in, or consequences for: (a) the territory of India,

or any part of India; or (b) the interests of, welfare of,

wellbeing of, or security of inhabitants of India, and

Indians?

(2) Does the Parliament have the powers to legislate "for"

any territory, other than the territory of India or any part of

it?

5 5. It is necessary to note the text of Article 245 and Article 1

at this stage itself:

"Article 245. Extent of laws made by Parliament

and by the Legislatures of States - (1) Subject to

the provisions of this Constitution, Parliament may

make laws for the whole or any part of the territory of

India, and the Legislature of a State may make laws

for the whole or any part of the State.

(2) No law made by Parliament shall be deemed to be

invalid on the ground that it would have extra-

territorial operation."

"Article 1. Name and territory of the Union - (1)

India, that is Bharat, shall be a Union of States. (2)

The States and the territories thereof shall be as

specified in the First Schedule. (3) The territory of

India shall comprise -

(a) The territories of the States;

(b) the Union territories specified in the First

Schedule; and

(c) such other territories as may be acquired."

II

Meanings of some phrases and expressions used hereinafter:

6. Many expressions and phrases, that are used contextually

in the flow of language, involving words such as "interest",

"benefit", "welfare", "security" and the like in order to specify the

purposes of laws, and their consequences can, have a range of

6

meanings. In as much as some of those expressions will be used

in this judgment, we are setting forth below a range of meanings

that may be ascribable to such expressions and phrases:

"aspects or causes" "aspects and causes":

events, things, phenomena (howsoever

commonplace they may be), resources, actions

or transactions, and the like, in the social,

political, economic, cultural, biological,

environmental or physical spheres, that occur,

arise, exist or may be expected to do so,

naturally or on account of some human agency.

"extra-territorial aspects or causes":

aspects or causes that occur, arise, or exist, or

may be expected to do so, outside the territory

of India.

"nexus with India", "impact on India", "effect in India", "effect on

India", "consequence for India" or "impact on or nexus with

India"

any impact(s)on, or effect(s) in, or

consequences for, or expected impact(s) on, or

effect(s) in, or consequence(s) for: (a) the

territory of India, or any part of India; or (b)the

interests of, welfare of, wellbeing of or security

of inhabitants of India, and Indians in general,

that arise on account of aspects or causes.

"benefit to India" or "for the benefit of India", "to the benefit of

India", "in the benefit of India" or " to benefit India" or "the

interests of India", "welfare of India", "well-being of India" etc.:

7

protection of and/or enhancement of the

interests of, welfare of, well-being of, or the

security of India (i.e., the whole territory of

India), or any part of it, its inhabitants and

Indians.

III

Factual Background as to how the matter arose before us.

7. The Appellant by way of a writ petition filed in Andhra Pradesh

High Court had challenged an order of the Respondents which

decided that the Appellant was liable to withhold a certain portion of

monies being paid to a foreign company, under either one of

Sections 9(1)(i) or 9(1)(vii)(b) of the Income Tax Act (1961). The

Appellant had also challenged the vires of Section 9(1)(vii)(b) of the

Income Tax Act (1961) for want of legislative competence and

violation of Article 14 of the Constitution. The High Court having

upheld that Section 9(1)(i) did not apply in the circumstances of the

facts of the case, nevertheless upheld the applicability of Section

9(1)(vii)(b) on the facts and also upheld the constitutional validity

of the said provision. The High Court mainly relied on the ratio of

the judgment by a three judge bench of this court in ECIL. Hence,

the appeal.

8 8. The matter came up for consideration before a two judge

bench of this Court. In light of the far reaching issues of great

constitutional purport raised in this matter, the fact that such issues

had been raised previously in ECIL, the referencing of some of

those issues by the three judge bench in ECIL to a constitutional

bench, and the fact that the civil appeals in the ECIL case had also

been withdrawn, a two judge bench of this Court vide its order

dated November 28, 2000, also referred the instant matter to a

constitutional bench. On July 13, 2010, the matter again came up

for consideration before another three judge bench of this court,

and vide its order of the same date, this matter came to be placed

before us.

9. It is necessary for purposes of clarity that a brief recounting

be undertaken at this stage itself as to what was conclusively

decided in ECIL, and what was referred to a constitutional bench.

After conclusively determining that Clauses (1) and (2) of Article

245, read together, impose a requirement that the laws made by

the Parliament should bear a nexus with India, the three judge

bench in ECIL asked that a constitutional bench be constituted to

consider whether the ingredients of the impugned provision, i.e.,

9 Section 9(1)(vii) of the Income Tax Act (1961) indicate such a

nexus. In the proceedings before us, the appellant withdrew its

challenge of the constitutional validity of Section 9(1)(vii)(b) of the

Income Tax Act (1961), and elected to proceed only on the factual

matrix as to the applicability of the said section. Nevertheless, the

learned Attorney General appearing for the Respondent pressed

upon this Constitutional Bench to reconsider the decision of the

three judge bench in the ECIL case. In light of the constitutional

importance of the issues we agreed to consider the validity of the

requirement of a relationship to or nexus with the territory of India

as a limitation on the powers of the Parliament to enact laws

pursuant to Clause (1) of Article 245 of the Constitution.

10. A further clarification needs to be made before we proceed.

The issue of whether laws that deal entirely with aspects or

causes that occur, arise or exist, or may be expected to do so,

within India, and yet require to be operated outside the territory

of India could be invalidated on the grounds of such extra-

territorial operation is not before us. The text of Clause (2) of

Article 245, when read together with Clause (1) of Article 245

makes it sufficiently clear that the laws made by the Parliament

10

relating to aspects or causes that occur, arise or exist or may be

expected to occur, arise or come into existence within the

territory of India may not be invalidated on the ground that such

laws require to be operated outside the territory of India. We will

of course deal with this aspect to the extent that it is required for

a proper appreciation of Clause (1) of Article 245, and to the

extent the permissibility of such extra-territorial operation has

been sought to be, by the learned Attorney General, extrapolated

into a power to make any extra-territorial laws.

IV

The ratio in ECIL:

11. The requirement of a nexus with the territory of India was first

explicitly articulated in the decision by a three judge Bench of this

court in ECIL. The implication of the nexus requirement is that a

law that is enacted by the Parliament, whose "objects" or

"provocations" do not arise within the territory of India, would be

unconstitutional. The words "object" and "provocation", and their

plural forms, may be conceived as having been used in ECIL as

synonyms for the words "aspect" and "cause", and their plural

forms, as used in this judgment.

11 12. The issue under consideration in ECIL was whether Section

9(1)(vii)(b) of the Income Tax Act (1961) was unconstitutional

on the ground that it constitutes a law with respect to objects or

provocations outside the territory of India, thereby being ultra-

vires the powers granted by Clause (1) of Article 245.

Interpreting Clauses (1) and (2) of Article 245, Chief Justice

Pathak (as he then was) drew a distinction between the phrases

"make laws" and "extraterritorial operation" - i.e., the acts and

functions of making laws versus the acts and functions of

effectuating a law already made.

12. In drawing the distinction as described above, the decision

in ECIL considered two analytically separable, albeit related,

issues. They relate to the potential conflict between the fact that,

in the international context, the "principle of Sovereignty of

States" (i.e., nation-states) would normally be "that the laws

made by one State can have no operation in another State" (i.e.,

they may not be enforceable), and the prohibition in Clause (2)

of Article 245 that laws made by the Parliament may not be

invalidated on the ground that they may need to be or are being

operated extra-territorially.

12 13. The above is of course a well recognized problem that has

been grappled with by courts across many jurisdictions in the

world; and in fact, many of the cases cited by the learned

Attorney General attest to the same. Relying on the ratio of

British Columbia Railway Company Limited v. King,2 the principle

that was enunciated in ECIL was that the problems of inability to

enforce the laws outside the territory of a nation state cannot be

grounds to hold such laws invalid. It was further held that the

courts in the territory of the nation-state, whose legislature

enacted the law, ought to nevertheless order that a law requiring

extra-territorial operation be implemented to the extent possible

with the machinery available. It can of course be clearly

appreciated that the said principle falls within the ambit of the

prohibition of Clause (2) of Article 245. The same was stated by

Chief Justice Pathak (as he then was) thus:

"Now it is perfectly clear that it is envisaged under our

constitutional scheme that Parliament in India may

make laws which operate extra-territorially. Art.

245(1) of the Constitution prescribes the extent of

laws made by the Parliament. They may be made for

the whole or any part of the territory of India. Article

245(2) declares that no law made by the Parliament

2 [1946] A.C. 527

13

shall be deemed to be invalid on the ground that it

would have extra-territorial operation. Therefore, a

Parliamentary statute having extra-territorial

operation cannot be ruled out from contemplation.

The operation of the law can extend to persons,

things and acts outside the territory of India"3 (emph.

added).

14. However, the principle enunciated above does not address

the question as to whether the Parliament may enact a law "for"

a territory outside the boundaries of India. To enact laws "for" a

foreign territory could be conceived of in two forms. The first

form would be, where the laws so enacted, would deal with or be

in respect of extra-territorial aspects or causes, and the laws

would seek to control, modulate or transform or in some manner

direct the executive of the legislating State to act upon such

extra-territorial aspects or causes because: (a) such extra-

territorial aspects or causes have some impact on or nexus with

or to India; and (b) such laws are intended to benefit India. The

second form would be when the extra-territorial aspects do not

have, and neither are expected to have, any nexus whatsoever

with India, and the purpose of such legislation would serve no

purpose or goal that would be beneficial to India.

3 Supra note 1.

14 15. It was concluded in ECIL that the Parliament does not have

the powers to make laws that bear no relationship to or nexus

with India. The obvious question that springs to mind is: "what

kind of nexus?" Chief Justice Pathak's words in ECIL are

instructive in this regard, both as to the principle and also the

reasoning:

"But the question is whether a nexus with something

in India is necessary. It seems to us that unless such

nexus exists Parliament will have no competence to

make the law. It will be noted that Article 245(1)

empowers Parliament to enact laws for the whole or

any part of the territory of India. The provocation for

the law must be found within India itself. Such a law

may have extra-territorial operation in order to

subserve the object, and that object must be related

to something in India. It is inconceivable that a law

should be made by parliament which has no

relationship with anything in India."4 (emphasis

added).

16. We are of the opinion that the distinction drawn in ECIL

between "make laws" and "operation" of law is a valid one, and

leads to a correct assessment of the relationship between

Clauses (1) and (2) of Article 245. We will have more to say

4 Supra note 1.

15 about this, when we turn our attention to the propositions of the

learned Attorney General.

17. We are, in this matter, concerned with what the implications

might be, due to use of words "provocation", "object", "in" and

"within" in connection with Parliament's legislative powers

regarding "the whole or any part of the territory of India", on the

understanding as to what aspects and/or causes that the

Parliament may legitimately take into consideration in exercise of

its legislative powers. A particularly narrow reading or

understanding of the words used could lead to a strict territorial

nexus requirement wherein the Parliament may only make laws

with respect to objects or provocations - or alternately, in terms

of the words we have used "aspects and causes" - that occur,

arise or exist or may be expected to occur, arise or exist, solely

within the territory of India, notwithstanding the fact that many

extra-territorial objects or provocations may have an impact or

nexus with India. Two other forms of the foregoing territorial

nexus theory, with weaker nexus requirements, but differing as

to the applicable tests for a finding of nexus, have been noted

earlier.

16 V

The Propositions of the learned Attorney General:

18. It appeared that the learned Attorney General was

concerned by the fact that the narrow reading of Article 245,

pace the ratio in ECIL, could significantly incapacitate the one

legislative body, the Parliament, charged with the responsibility

of legislating for the entire nation, in dealing with extra-territorial

aspects or causes that have an impact on or nexus with India.

India has a parliamentary system of governance, wherein the

Executive, notwithstanding its own domain of exclusive

operation, is a part of, and answerable to, the Parliament.

Further, given that the Executive's powers are co-extensive with

that of the Parliament's law making powers, such a narrow

reading of Article 245 could significantly reduce the national

capacity to make laws in dealing with extra-territorial aspects

that have an impact on or nexus with India. Clearly, that would

be an anomalous construction.

19. In attacking such a construction, the learned Attorney

General appeared to have moved to another extreme. The

17

written propositions of the learned Attorney General, with respect

to the meaning, purport and ambit of Article 245, quoted

verbatim, were the following:

1. "There is clear distinction between a Sovereign

Legislature and a Subordinate Legislature.

2. It cannot be disputed that a Sovereign Legislature has

full power to make extra-territorial laws.

3. The fact that it may not do so or that it will exercise

restraint in this behalf arises not from a Constitutional

limitation on its powers but from a consideration of

applicability.

4. This does not detract from its inherent rights to make

extra-territorial laws.

5. In any case, the domestic Courts of the country

cannot set aside the legislation passed by a Sovereign

Legislature on the ground that it has extra-territorial

effect or that it would offend some principle of

international law.

6. The theory of nexus was evolved essentially from

Australia to rebut a challenge to Income Tax laws on

the ground of extra-territoriality.

7. The principle of nexus was urged as a matter of

construction to show that the law in fact was not

extra-territorial because it had a nexus with the

territory of the legislating State.

8. The theory of nexus and the necessity to show the

nexus arose with regard to State Legislature under

the Constitution since the power to make extra-

territorial laws is reserved only for the Parliament".

18 21. In as much as the issues with regard to operation of laws

enacted by the various state legislatures are not before us, we

decline to express our opinion with respect to historical

antecedents of nexus theory in the context of division of powers

between a federation and the federal provinces. Given the fact

that the learned Attorney General has not further refined or

explicated the propositions as set forth above, we are compelled

to assume that he intended us to take it that the Parliament

should be deemed to have the powers and competence as set

forth below, which arise out of a rigorous analysis of his

propositions, and consequently examine them in light of the text

of Article 245.

22. The main propositions are that the Parliament is a

"sovereign legislature", and that such a "sovereign legislature

has full power to make extra-territorial laws." They can be

analysed in the following two ways:

(i) As a matter of first level of assessment, the phrase

"full power to make extra-territorial laws" would

implicate the competence to legislate with respect to

extra-territorial aspects or causes that have an impact

19

on or nexus with India, wherein the State machinery

is directed to achieve the goals of such legislation by

exerting force on such extra-territorial aspects or

causes to modulate, change, transform, eliminate or

engender them or their effects. At the next level, such

powers would also implicate legislative competence to

make laws that direct the state machinery, in order to

achieve the goals of such legislation, to exert force on

extra-territorial aspects or causes that do not have

any impact on or nexus with India to modulate,

change, transform, eliminate or engender them or

their effects. We take it that the learned Attorney

General has proposed that both the forms outlined

above are within the constitutionally permissible limits

of legislative powers and competence of the

Parliament.

(ii) The same proposition can also be viewed from the

perspective of the goals that such "extra-territorial

laws" seek to accomplish, and the relationship of such

goals to the territory for which such laws are intended

to affect, as well as India. Modern jurisprudence, and

not just international law or international ethics, does

not support the view that legislative commands that

are devoid of justice can be given the status of being

"law". The extent of abuse of the theory of "rule of

law", in its absolutist sense, in history, and

particularly in the 20th Century, has effectively

undermined the legitimacy of the notion that whatever

the purpose that law seeks to achieve is justice.

Consequently, we will assume that the learned

Attorney General did not mean that Parliament would

have powers to enact extra-territorial laws with

respect to foreign territories that are devoid of justice

i.e., they serve no benefits to the denizens of such

foreign territories. Arguably India, as a nation-state,

has not been established, nor has it developed, with

an intent to be an expansionary or an imperialist

power on the international stage; consequently we will

also not be examining the proposition that the extra-

territorial laws enacted the Parliament, and hence

20

"for" that foreign territory, could be exploitative of the

denizens of another territory, and yet be beneficial to

India in its narrow sense. A valid argument can also

be made that such an exploitative situation would be

harmful to India's moral stature on the international

plane, and also possibly deleterious to international

peace, and consequently damaging to India's long run

interests. To the extent that extra-territorial laws

enacted have to be beneficial to the denizens of

another territory, three implications arise. The first

one is when such laws do benefit the foreign territory,

and benefit India too. The second one is that they

benefit the denizens of that foreign territory, but do

not adversely affect India's interests. The third one

would be when such extra-territorial laws benefit the

denizens of the foreign territory, but are damaging to

the interests of India. We take it that the learned

Attorney General has proposed that all three

possibilities are within constitutionally permissible

limits of legislative powers and competence of the

Parliament.

23. The further proposition of the learned Attorney General, is

that courts in India do not have the powers to declare the "extra-

territorial laws" enacted by the Parliament invalid, on the ground

that they have an "extra-territorial effect", notwithstanding the

fact: (a) that such extra-territorial laws are with respect to extra-

territorial aspects or causes that have no impact on or nexus with

India; (b) that such extra-territorial laws do not in any manner or

form work to, or intended to be or hew to the benefit of India;

and (c) that such extra-territorial laws might even be detrimental

21

to India. The word "extra-territorial-effect" is of a much wider

purport than "extra-territorial operation", and would also be

expected to include within itself all the meanings of "extra-

territorial law" as explained above. The implication of the

proposed disability is not merely that the judiciary, under our

constitution, is limited from exercising the powers of judicial

review, on specific grounds, over a clearly defined set of laws,

with a limited number of enactments; rather, it would be that the

judiciary would be so disabled with regard to an entire universe

of laws, that are undefined, and unspecified. Further, the

implication would also be that the judiciary has been stripped of

its essential role even where such extra-territorial laws may be

damaging to the interests of India.

24. In addition the learned Attorney General has also placed

reliance on the fact that the Clause 179 of the Draft Constitution,

was split up into two separate clauses, Clause 179(1) and Clause

179(2), by the Constitution Drafting Committee, and adopted as

Clauses (1) and (2) of Article 245 in the Constitution. It seemed

to us that the learned Attorney General was seeking to draw two

inferences from this. The first one seemed to be that the Drafting

22

Committee intended Clause 179(2), and hence Clause (2) of

Article 245, to be an independent, and a separate, source of

legislative powers to the Parliament to make "extra-territorial

laws". The second inference that we have been asked to make is

that in as much as Parliament has been explicitly permitted to

make laws having "extra-territorial operation", Parliament should

be deemed to possess powers to make "extra-territorial laws",

the implications of which have been more particularly explicated

above. The learned Attorney General relied on the following case

law in support his propositions and arguments: Ashbury v. Ellis5,

Emmanuel Mortensen v. David Peters6, Croft v. Dunphy7, British

Columbia Electric Railway Company Ltd. V. The King8, Governor

General in Council v. Raleigh Investment Co. Ltd.9, Wallace

Brothers and Co. v. Commissioner of Income Tax, Bombay10,

A.H. Wadia v. Commissioner of Income Tax, Bombay11 and State

v. Narayandas Mangilal Dayame,12 Rao Shiv Bahadur v. State of

5 [1893] A.C. 339

6 [1906] 8 F (J.) 93

7 [1933] A.C. 156

8 [1946] A.C. 527

9 [1944] 12 ITR 265

10 [1948] 16 ITR 240

11 [1949] 17 ITR 63

12 AIR 1958 Bom 68.

23 Vindhya Pradesh,13 Clark v. Oceanic Contractors Inc.,14 Shrikant

Bhalchandra v. State of Gujarat,15 and State of A.P. v. N.T.P.C.16

VI

Constitutional Interpretation:

25. We are acutely aware that what we are interpreting is a

provision of the Constitution. Indeed the Constitution is law, in its

ordinary sense too; however, it is also a law made by the people

as a nation, through its Constituent Assembly, in a foundational

and a constitutive moment. Written constitutions seek to

delineate the spheres of actions of, with more or less strictness,

and the extent of powers exercisable therein by, various organs

of the state. Such institutional arrangements, though political at

the time they were made, are also legal once made. They are

legal, inter-alia, in the sense that they are susceptible to judicial

review with regard to determination of vires of any of the actions

of the organs of the State constituted. The actions of such organs

are also justiciable, in appropriate cases, where the values or the

scheme of the Constitution may have been transgressed. Hence

13 AIR 1953 SC 394

14 [1983] A.C. 130

15 (1994) 5 SCC 459

16 (2002) 5 SCC 203

24

clarity is necessary with respect to the extent of powers granted

and the limits on them, so that the organs of the State charged

with the working of the mandate of the Constitution can proceed

with some degree of certitude.

26. In such exercises we are of the opinion that a liberal and

more extensive interpretative analysis be undertaken to ensure

that the court does not, inadvertently and as a consequence of

not considering as many relevant issues as possible,

unnecessarily restrict the powers of another coordinate organ of

the State. Moreover, the essential features of such

arrangements, that give the Constitution its identity, cannot be

changed by the amending powers of the very organs that are

constituted by it. Under our Constitution, while some features are

capable of being amended by Parliament, pursuant to the

amending power granted by Article 368, the essential features -

the basic structure - of the Constitution is beyond such powers of

Parliament. The power to make changes to the basic structure of

the Constitution vests only in the people sitting, as a nation,

through its representatives in a Constituent Assembly. (See

25

Keshavanadna Bharati v. State of Kerala17 and I.R. Coelho v.

State of Tamil Nadu18). One of the foundational elements of the

concept of basic structure is it would give the stability of purpose,

and machinery of government to be able to pursue the

constitutional vision in to the indeterminate and unforeseeable

future.

27. Our Constitution charges the various organs of the state

with affirmative responsibilities of protecting the interests of, the

welfare of and the security of the nation. Legislative powers are

granted to enable the accomplishment of the goals of the nation.

The powers of judicial review are granted in order to ensure that

legislative and executive powers are used within the bounds

specified in the Constitution. Consequently, it is imperative that

the powers so granted to various organs of the state are not

restricted impermissibly by judicial fiat such that it leads to

inabilities of the organs of the State in discharging their

constitutional responsibilities. Powers that have been granted,

and implied by, and borne by the Constitutional text have to be

perforce admitted. Nevertheless, the very essence of

17 (1973) 4 SCC 225

18 (2007) 2 SCC 1

26

constitutionalism is also that no organ of the state may arrogate

to itself powers beyond what is specified in the Constitution.

Walking on that razors edge is the duty of the judiciary. Judicial

restraint is necessary in dealing with the powers of another

coordinate branch of the government; but restraint cannot imply

abdication of the responsibility of walking on that edge.

28. In interpreting any law, including the Constitution, the text

of the provision under consideration would be the primary source

for discerning the meanings that inhere in the enactment.

However, in light of the serious issues it would always be

prudent, as a matter of constitutional necessity, to widen the

search for the true meaning, purport and ambit of the provision

under consideration. No provision, and indeed no word or

expression, of the Constitution exists in isolation - they are

necessarily related to, transforming and in turn being

transformed by, other provisions, words and phrases in the

Constitution. Our Constitution is both long and also an intricate

matrix of meanings, purposes and structures. It is only by

locating a particular constitutional provision under consideration

within that constitutional matrix could one hope to be able to

27

discern its true meaning, purport and ambit. As Prof. Laurence

Tribe points out:

"[T]o understand the Constitution as a legal text, it is

essential to recognize the... sort of text it is: a

constitutive text that purports, in the name of the

people....., to bring into being a number of distinct but

inter-related institutions and practices, at once legal

and political, and to define the rules governing those

institutions and practices." (See: Reflections on Free-

Form Method in Constitutional Interpretation) 19

29. It has been repeatedly appreciated by this Court that our

Constitution is one of the most carefully drafted ones, where

every situation conceivable, within the vast experience, expertise

and knowledge of our framers, was considered, deliberated upon,

and appropriate features and text chosen to enable the organs of

the State in discharging their roles. While indeed dynamic

interpretation is necessary, if the meaning necessary to fit the

changed circumstances could be found in the text itself, we

would always be better served by treading a path as close as

possible to the text, by gathering the plain ordinary meaning,

and by sweeping our vision and comprehension across the entire

19 108 Harv. L. Rev. 1221, 1235 (1995).

28 document to see whether that meaning is validated by

constitutional values and scheme.

30. However, it can also be appreciated that given the

complexity and the length of our Constitution, the above task

would be gargantuan. One method that may be adopted would

be to view the Constitution as composed of constitutional

topological spaces. Each Part of the Constitution deals with

certain core functions and purposes, though aspects outside such

a core, which are contextually necessary to be included, also find

place in such Parts. In the instant case Chapter 1, Part XI, in

which Article 245 is located, is one such constitutional topological

space. Within such a constitutional topological space, one would

expect each provision therein to be intimately related to,

gathering meaning from, and in turn transforming the meaning

of, other provisions therein. By locating the transformative

effects within such constitutional topological space, we would

then be able to gather what the core, and untransformed

features are. However, this method needs to be carefully used -

constitutional topological spaces are not to be taken as water

tight compartments, which when studied in isolation would return

29

necessarily unerring truths about the Constitution. The potential

that a transformative, or even a confirmative, understanding can

emerge directly from any other part of the Constitution is

something that we must always be cognizant of. Nevertheless, to

the extent that the Constitution has been arranged in a particular

manner by our framers, thereby giving us some guide posts for

navigation of the text and its implications for our socio-political

lives, such constitutional topological spaces, when primarily used

for validation of unambiguous textual meanings, would ease our

epistemological burdens.

VII

Textual Analysis of Article 245:

31. Prior to embarking upon a textual analysis of Clauses (1)

and (2) of Article 245, it is also imperative that we bear in mind

that a construction of provisions in a manner that renders words

or phrases therein to the status of mere surplussage ought to be

avoided.

32. The subject in focus in the first part of Clause (1) of Article

245 is "the whole or any part of the territory of India", and the

30

object is to specify that it is the Parliament which is empowered

to make laws in respect of the same. The second part of Clause

(1) of Article 245 deals with the legislative powers of State

legislatures.

33. The word that links the subject, "the whole or any part of

the territory of India" with the phrase that grants legislative

powers to the Parliament, is "for". It is used as a preposition. The

word "for", when ordinarily used as a preposition, can signify a

range of meanings between the subject, that it is a preposition

for, and that which preceded it:

"-prep 1 in the interest or to the benefit of;

intended to go to; 2 in defence, support or

favour of 3 suitable or appropriate to 4 in

respect of or with reference to 5 representing or

in place of..... 14. conducive or conducively to; in

order to achieve..." (See: Concise Oxford English

Dictionary)20

34. Consequently, the range of senses in which the word "for"

is ordinarily used would suggest that, pursuant to Clause (1) of

Article 245, the Parliament is empowered to enact those laws

that are in the interest of, to the benefit of, in defence of, in

20 8th Ed., OUP (Oxford, 1990).

31 support or favour of, suitable or appropriate to, in respect of or

with reference to "the whole or any part of the territory of India".

35. The above understanding comports with the contemporary

understanding, that emerged in the 20th Century, after hundreds

of years of struggle of humanity in general, and nearly a century

long struggle for freedom in India, that the State is charged with

the responsibility to always act in the interest of the people at

large. In as much as many extra-territorial aspects or causes

may have an impact on or nexus with the nation-state, they

would legitimately, and indeed necessarily, be within the domain

of legislative competence of the national parliament, so long as

the purpose or object of such legislation is to benefit the people

of that nation state.

36. The problem with the manner in which Article 245 has been

explained in the ratio of ECIL relates to the use of the words

"provocation", and "object" as the principal qualifiers of "laws,"

and then specifying that they need to arise "in" or "within" India.

The word "provocation" generally implies a cause - i.e., an

inciting or a motivating factor - for an action or a reaction that

seeks to control, eliminate, mitigate, modulate or otherwise

32

transform both the independently existing aspects in the world

and also their effects which had provoked or provokes the action

or reaction. "Provocation" may also be used, in a proactive

sense, to signify the end or goal sought to be achieved rather

than in the reactive sense - as a response to independently

occurring aspects in the world. Similarly, the word "object" can

mean any aspect that exists independently in the world, of which

a human agency takes cognizance of, and then decides to take

some action. In this sense the word "object" would carry the

same meaning as "provocation" in the first sense of that word

delineated above. The word "object" can also mean the end goal

or purpose to be achieved by an action or a reaction to an

independent aspect or cause in the world. In legal discourse,

particularly in the task of interpreting statutes, and the law, the

said words could be used in both the senses. The tools of

"purposive interpretation" and the "mischief rule" ought to come

to mind.

37. Consequently, the ratio of ECIL could wrongly be read to

mean that both the "provocations" and "objects" - in terms of

independent aspects or causes in the world - of the law enacted

33

by Parliament, pursuant to Article 245, must arise solely "in" or

"within" the territory of India. Such a narrowing of the ambit of

Clause (1) of Article 245 would arise by substituting "in" or

"within", as prepositions, in the place of "for" in the text of Article

245. The word "in", used as a preposition, has a much narrower

meaning, expressing inclusion or position within limits of space,

time or circumstance, than the word "for". The consequence of

such a substitution would be that Parliament could be deemed to

not have the powers to enact laws with respect to extra-

territorial aspects or causes, even though such aspects or causes

may be expected to have an impact on or nexus with India, and

laws with respect to such aspects or causes would be beneficial

to India.

38. The notion that a nation-state, including its organs of

governance such as the national legislature, must be concerned

only with respect to persons, property, things, phenomenon, acts

or events within its own territory emerged in the context of

development of nation-states in an era when external aspects

and causes were thought to be only of marginal significance, if at

all. This also relates to early versions of sovereignty that

34

emerged along with early forms of nation-states, in which

internal sovereignty was conceived of as being absolute and

vested in one or some organs of governance, and external

sovereignty was conceived of in terms of co-equal status and

absolute non-interference with respect to aspects or causes that

occur, arise or exist, or may be expected to do so, in other

territories. Oppenheim's International Law21 states as follows:

"The concept of sovereignty was introduced and

developed in political theory in the context of the

power of the ruler of the state over everything within

the state. Sovereignty was, in other words, primarily

a matter of internal constitutional power.... The 20th

century has seen the attempt, particularly through the

emergence in some instances of extreme nationalism,

to transpose this essentially internal concept of

sovereignty on to the international plane. In its

extreme forms such a transposition is inimical to the

normal functioning and development of international

law and organization. It is also inappropriate..... no

state has supreme legal power and authority over

other states in general, nor are states generally

subservient to the legal power and authority of other

states. Thus the relationship of states on the

international plane is characterized by their equality,

independence, and in fact, by their interdependence."

39. On account of scientific and technological developments the

magnitude of cross border travel and transactions has increased

21 Vol 1, "PEACE" 9th ed., page 125, 9 (Longman Group, UK, 1992).

35 tremendously. Moreover, existence of economic, business, social

and political organizations and forms, of more or less

determinate structure, and both recognized and unrecognized,

that operate across borders, implies that their activities, even

though conducted in one territory may have an impact on or in

another territory. Externalities arising from economic activities,

including but not limited to large scale exploitation of natural

resources, and consequent pressure on delicate global

environmental balance, are being recognized to be global in

scope and impact. Global criminal and terror networks are also

examples of how events and activities in a territory outside one's

own borders could affect the interests, welfare, well-being and

security within. Many other examples could also be adduced. For

instance, the enablement, by law, of participation of the State in

many joint, multilateral or bilateral efforts at coordination of

economic, fiscal, monetary, trade, social, law enforcement

activities, reduction of carbon emissions, prevention or mitigation

of war in another region or maintenance of peace and security,

etc., may be cited as additional examples of such inter-territorial

dependence.

36 40. Within international law, the principles of strict territorial

jurisdiction have been relaxed, in light of greater

interdependencies, and acknowledgement of the necessity of

taking cognizance and acting upon extra-territorial aspects or

causes, by principles such as subjective territorial principle,

objective territorial principle, the effects doctrine that the United

States uses, active personality principle, protective principle etc.

However, one singular aspect of territoriality remains, and it was

best stated by Justice H.V. Evatt: "The extent of extra-territorial

jurisdiction permitted, or rather not forbidden, by international

law cannot always be stated with precision. But certainly no

State attempts to exercise jurisdiction over matters, persons, or

things with which it has absolutely no concern." (See Trustees

Executors & Agency Co Ltd v. Federal Commissioner of

Taxation22). The reasons are not too far to grasp. To claim the

power to legislate with respect to extra-territorial aspects or

causes, that have no nexus with the territory for which the

national legislature is responsible for, would be to claim dominion

over such a foreign territory, and negation of the principle of self-

determination of the people who are nationals of such foreign

22 (1933) 49 CLR. 220 at 239

37

territory, peaceful co-existence of nations, and co-equal

sovereignty of nation-states. Such claims have, and invariably

lead to, shattering of international peace, and consequently

detrimental to the interests, welfare and security of the very

nation-state, and its people, that the national legislature is

charged with the responsibility for.

41. Because of interdependencies and the fact that many extra-

territorial aspects or causes have an impact on or nexus with the

territory of the nation-state, it would be impossible to conceive

legislative powers and competence of national parliaments as

being limited only to aspects or causes that arise, occur or exist

or may be expected to do so, within the territory of its own

nation-state. Our Constitution has to be necessarily understood

as imposing affirmative obligations on all the organs of the State

to protect the interests, welfare and security of India.

Consequently, we have to understand that the Parliament has

been constituted, and empowered to, and that its core role would

be to, enact laws that serve such purposes. Hence even those

extra-territorial aspects or causes, provided they have a nexus

with India, should be deemed to be within the domain of

38

legislative competence of the Parliament, except to the extent

the Constitution itself specifies otherwise.

42. A question still remains, in light of the extreme conclusions

that may arise on account of the propositions made by the

learned Attorney General. Is the Parliament empowered to enact

laws in respect of extra-territorial aspects or causes that have no

nexus with India, and furthermore could such laws be bereft of

any benefit to India? The answer would have to be no.

43. The word "for" again provides the clue. To legislate for a

territory implies being responsible for the welfare of the people

inhabiting that territory, deriving the powers to legislate from the

same people, and acting in a capacity of trust. In that sense the

Parliament belongs only to India; and its chief and sole

responsibility is to act as the Parliament of India and of no other

territory, nation or people. There are two related limitations that

flow from this. The first one is with regard to the necessity, and

the absolute base line condition, that all powers vested in any

organ of the State, including Parliament, may only be exercised

for the benefit of India. All of its energies and focus ought to only

39

be directed to that end. It may be the case that an external

aspect or cause, or welfare of the people elsewhere may also

benefit the people of India. The laws enacted by Parliament may

enhance the welfare of people in other territories too;

nevertheless, the fundamental condition remains: that the

benefit to or of India remain the central and primary purpose.

That being the case, the logical corollary, and hence the second

limitation that flows thereof, would be that an exercise of

legislative powers by Parliament with regard to extra-territorial

aspects or causes that do not have any, or may be expected to

not have nexus with India, transgress the first condition.

Consequently, we must hold that the Parliament's powers to

enact legislation, pursuant to Clause (1) of Article 245 may not

extend to those extra-territorial aspects or causes that have no

impact on or nexus with India.

44. For a legislature to make laws for some other territory

would be to act in a representative capacity of the people of such

a territory. That would be an immediate transgression of the

condition that the Parliament be a parliament for India. The word

"for", that connects the territory of India to the legislative powers

40

of the Parliament in Clause (1) of Article 245, when viewed from

the perspective of the people of India, implies that it is "our"

Parliament, a jealously possessive construct that may not be

tinkered with in any manner or form. The formation of the State,

and its organs, implies the vesting of the powers of the people in

trust; and that trust demands, and its continued existence is

predicated upon the belief, that the institutions of the State shall

always act completely, and only, on behalf of the people of India.

While the people of India may repose, and continue to maintain

their trust in the State, notwithstanding the abysmal conditions

that many live in, and notwithstanding the differences the people

may have with respect to socio-political choices being made

within the country, the notion of the collective powers of the

people of India being used for the benefit of some other people,

including situations in which the interests of those other people

may conflict with India's interests, is of an entirely different

order. It is destructive of the very essence of the reason for

which Parliament has been constituted: to act as the Parliament

for, and only of, India.

41 45. The grant of the power to legislate, to the Parliament, in

Clause (1) of Article 245 comes with a limitation that arises out

of the very purpose for which it has been constituted. That

purpose is to continuously, and forever be acting in the interests

of the people of India. It is a primordial condition and limitation.

Whatever else may be the merits or demerits of the Hobbesian

notion of absolute sovereignty, even the Leviathan, within the

scope of Hobbesian logic itself, sooner rather than later, has to

realize that the legitimacy of his or her powers, and its actual

continuance, is premised on such powers only being used for the

welfare of the people. No organ of the Indian State can be the

repository of the collective powers of the people of India, unless

that power is being used exclusively for the welfare of India.

Incidentally, the said power may be used to protect, or enhance,

the welfare of some other people, also; however, even that goal

has to relate to, and be justified by, the fact that such an

exercise of power ultimately results in a benefit - either moral,

material, spiritual or in some other tangible or intangible manner

- to the people who constitute India.

42 46. We also derive interpretational support for our conclusion

that Parliament may not legislate for territories beyond India

from Article 51, a Directive Principle of State Policy, though not

enforceable, nevertheless fundamental in the governance of the

country. It is specified therein that:

"Article 51. Promotion of international

peace and security-"State shall endeavour to -

(a)to promote international peace and security;

(b)maintain just and honourable relations

between nations;

(c)foster respect for international law and treaty

obligations in the dealings of organized

peoples with one another; and

(d)encourage settlement if international disputes

by arbitration."

47. To enact legislation with respect to extra-territorial aspects

or causes, without any nexus to India, would in many measures

be an abdication of the responsibility that has been cast upon

Parliament as above. International peace and security has been

recognised as being vital for the interests of India. This is to be

achieved by India maintaining just and honourable relations, by

fostering respect for international and treaty obligations etc., as

recognized in Article 51. It is one matter to say that because

certain extra-territorial aspects or causes have an impact on or

nexus with India, Parliament may enact laws with respect to such

43

aspects or causes. That is clearly a role that has been set forth in

the Constitution, and a power that the people of India can claim.

How those laws are to be effectuated, and with what degree of

force or diplomacy, may very well lie in the domain of pragmatic,

and indeed ethical, statecraft that may, though not necessarily

always, be left to the discretion of the Executive by Parliament.

Nevertheless, that position is very different from claiming that

India has the power to interfere in matters that have no nexus

with India at all. To claim such powers, would be to make such

powers available. Invariably available powers are used, and in

this case with a direct impact on the moral force of India, and its

interests, welfare and security, by shattering the very concepts

that under-gird peace between nations. By recognizing

international peace to be sine qua non for India's welfare and

security, the framers have charged the State, and all of its

organs, with responsibility to endeavour to achieve the goals set

forth in Article 51. To claim the power to legislate for some other

territories, even though aspects or causes arising, occurring or

existing there have no connection, to India would be to demolish

the very basis on which international peace and security can be

premised.

44 48. For the aforesaid reasons we are unable to agree that

Parliament, on account of an alleged absolute legislative

sovereignty being vested in it, should be deemed to have the

powers to enact any and all legislation, de hors the requirement

that the purpose of such legislation be for the benefit of India.

The absolute requirement is that all legislation of the Parliament

has to be imbued with, and at the core only be filled with, the

purpose of effectuating benefits to India. This is not just a matter

of the structure of our Constitution; but the very foundation.

49. The arguments that India inherited the claimed absolute or

illimitable powers of the British parliament are unacceptable. One

need not go into a lengthy or academic debate about whether in

fact the British parliament always did, or as a matter of absolute

necessity needs to, possess such powers. There is a healthy

debate about that, casting serious doubts about the legal efficacy

of such arguments. (See Chapter 2: "The Sovereignty of

Parliament - in Perpetuity?", by A.W. Bradley in The Changing

Constitution, Ed. Jowell & Oliver23 and Studies in Constitutional

Law by Colin R. Munro24). It is now a well accepted part of our

23 2nd Ed. Clarendon Press, Oxford (1989)

24 2nd Ed. Butterworths, OUP (2005).

45 constitutional jurisprudence that by virtue of having a written

constitution we have effectively severed our links with the

Austinian notion that law as specified by a sovereign is

necessarily just, and the Diceyan notion of parliamentary

sovereignty. It is the Constitution that is supreme, with true

sovereignty vesting in the people. In as much as that true

sovereign has vested some of their collective powers in the

various organs of the state, including the Parliament, there

cannot be the legal capacity to exercise that power in a manner

that is not related to their interests, benefits, welfare and

security.

50. We now turn our attention to other arguments put forward

by the learned Attorney General with regard to the implications

of permissibility of making laws that may operate extra-

territorially, pursuant to Clause (2) of Article 245. In the first

measure, the learned Attorney General seems to be arguing that

the act and function of making laws is the same as the act and

function of "operating" the law. From that position, he also seems

to be arguing that Clause (2) of Article 245 be seen as an

independent source of power. Finally, the thread of that logic

46

then seeks to draw the inference that in as much as Clause (2)

prohibits the invalidation of laws on account of their extra-

territorial operation, it should be deemed that the courts do not

have the power to invalidate, - i.e., strike down as ultra vires -,

those laws enacted by Parliament that relate to any extra-

territorial aspects or causes, not withstanding the fact that many

of such aspects or causes have no impact on or nexus with India.

51. It is important to draw a clear distinction between the acts

& functions of making laws and the acts & functions of operating

the laws. Making laws implies the acts of changing and enacting

laws. The phrase operation of law, in its ordinary sense, means

the effectuation or implementation of the laws. The acts and

functions of implementing the laws, made by the legislature, fall

within the domain of the executive. Moreover, the essential

nature of the act of invalidating a law is different from both the

act of making a law, and the act of operating a law. Invalidation

of laws falls exclusively within the functions of the judiciary, and

occurs after examination of the vires of a particular law. While

there may be some overlap of functions, the essential cores of

the functions delineated by the meanings of the phrases "make

47

laws" "operation of laws" and "invalidate laws" are ordinarily and

essentially associated with separate organs of the state - the

legislature, the executive and the judiciary respectively, unless

the context or specific text, in the Constitution, unambiguously

points to some other association.

52. In Article 245 we find that the words and phrases "make

laws" "extra-territorial operation", and "invalidate" have been

used in a manner that clearly suggests that the addressees

implicated are the legislature, the executive and the judiciary

respectively. While Clause (1) uses the verb "make" with respect

to laws, thereby signifying the grant of powers, Clause (2) uses

the past tense of make, "made", signifying laws that have

already been enacted by the Parliament. The subject of Clause

(2) of Article 245 is the law made by the Parliament, pursuant to

Clause (1) of Article 245, and the object, or purpose, of Clause

(2) of Article 245 is to specify that a law so made by the

Parliament, for the whole or any part of territory of India, should

not be held to be invalid solely on the ground that such laws

require extra-territorial operation. The only organ of the state

which may invalidate laws is the judiciary. Consequently, the text

48

of Clause (2) of Article 245 should be read to mean that it

reduces the general and inherent powers of the judiciary to

declare a law ultra-vires only to the extent of that one ground of

invalidation. One thing must be noted here. In as much as the

judiciary's jurisdiction is in question here, an a-priori, and a

strained, inference that is unsupported by the plain meaning of

the text may not be made that the powers of the legislature to

make laws beyond the pale of judicial scrutiny have been

expanded over and above that which has been specified. The

learned Attorney General is not only seeking an interpretation of

Article 245 wherein the Parliament is empowered to make laws

"for" a foreign territory, which we have seen above is

impermissible, but also an interpretation that places those

vaguely defined laws, which by definition and implication can

range over an indefinite, and possibly even an infinite number, of

fields beyond judicial scrutiny, even in terms of the examination

of their vires. That would be contrary to the basic structure of the

Constitution.25

25 Supra note 18.

49 53. Clause (2) of Article 245 acts as an exception, of a

particular and a limited kind, to the inherent power of the

judiciary to invalidate, if ultra-vires, any of the laws made by any

organ of the State. Generally, an exception can logically be read

as only operating within the ambit of the clause to which it is an

exception. It acts upon the main limb of the Article - the more

general clause - but the more general clause in turn acts upon it.

The relationship is mutually synergistic in engendering the

meaning. In this case, Clause (2) of Article 245 carves out a

specific exception that a law made by Parliament, pursuant to

Clause (1) of Article 245, for the whole or any part of the

territory of India may not be invalidated on the ground that such

a law may need to be operated extraterritorially. Nothing more.

The power of the judiciary to invalidate laws that are ultra-vires

flows from its essential functions, Constitutional structure, values

and scheme, and indeed to ensure that the powers vested in the

organs of the State are not being transgressed, and that they are

being used to realise a public purpose that subserves the general

welfare of the people. It is one of the essential defences of the

people in a constitutional democracy.

50 54. If one were to read Clause (2) of Article 245 as an

independent source of legislative power of the Parliament to

enact laws for territories beyond India wherein, neither the

aspects or causes of such laws have a nexus with India, nor the

purposes of such laws are for the benefit of India, it would

immediately call into question as to why Clause (1) of Article 245

specifies that it is the territory of India or a part thereof "for"

which the Parliament may make laws. If the power to enact laws

for any territory, including a foreign territory, were to be read

into Clause (2) of Article 245, the phrase "for the whole or any

part of the territory of India" in Clause (1) of Article 245 would

become a mere surplassage. When something is specified in an

Article of the Constitution it is to be taken, as a matter of initial

assessment, as nothing more was intended. In this case it is the

territory of India that is specified by the phrase "for the whole or

any part of the territory of India." "Expressio unius est exclusio

alterius"- the express mention of one thing implies the exclusion

of another. In this case Parliament has been granted powers to

make laws "for" a specific territory - and that is India or any part

thereof; by implication, one may not read that the Parliament

51

has been granted powers to make laws "for" territories beyond

India.

55. The reliance placed by the learned Attorney General on the

history of changes to the pre-cursors of Article 245, in the Draft

Constitution, in support of his propositions is also inapposite. In

fact one can clearly discern that the history of changes, to Clause

179 of the Draft Constitution (which became Article 245 in our

Constitution), supports the conclusions we have arrived at as to

the meaning, purport and ambit of Article 245. The first iteration

of Clause 179 of the Draft Constitution read, in part, as follows:

"Subject to the provisions of this Constitution, the Federal

Parliament may make laws, including laws having extra-territorial

operation, for the whole or any part of the territories of the

Federation......" Clearly the foregoing iteration shows that what

was under consideration were the entire class of laws that the

Parliament was to be empowered to make "for the whole or any

part of the territories of the Federation.....", and included within

that class were the laws "having extra-territorial operation."

Subsequently Clause 179 of the Draft Constitution was split into

two separate clauses 179 (1) and 179(2). The learned Attorney

52

General's arguments suggest that the conversion of Draft Clause

179 into two separate draft clauses, 179(1) and 179(2), should

be interpreted to mean that the framers of the Constitution

intended the two clauses to have a separate existence,

independent of each other. We are not persuaded. The retention

of the phrase "extra-territorial operation" as opposed to the

phrase "extra-territorial laws" implies that the drafters were

acutely aware of the difference between the meaning of the

phrase "operation of law" and the "making of law". Further, by

beginning Clause (2) of Article 245 with the phrase "No law made

by the Parliament...", it is clear that the drafting committee

intended to retain the link with Clause (1) of Article 245. (See:

The Framing of India's Constitution, by The Project Committee,

Chairman B. Shiva Rao)26 Thus we cannot view Clause (2) of

Article 245 as an independent source of legislative powers on

account of the history of various iterations of the pre-cursor to

Article 245 in the Constituent Assembly.

VIII

Analysis of Constitutional Topological Space: Chapter 1, Part XI:

26 Vol. 3, Universal Law Publichsing Co.

53

56. We now turn to Chapter 1 Part XI, in which Article 245 is

located, to examine other provisions that may be expected to

transform or be transformed by the meaning of Article 245 that

we have discerned and explained above. In particular, the search

is also for any support that may exist for the propositions of the

learned Attorney General that the Parliament may make laws for

any territory outside India.

57. As is well known, Article 246 provides for the division of

legislative competence, as between the Parliament and the State

legislatures, in terms of subjects or topics of legislation. Clauses

(1), (2) and (3) of Article 246 do not mention the word territory.

However, Clause (4) of Article 246 specifies that Parliament has

the power to "make laws for any part of the territory of India not

included in a State" with respect to any matter, notwithstanding

that a particular matter is included in the State List. In as much

as Clause (1) of Article 245 specifies that it is for "the whole or

any part of the territory of India" with respect of which

Parliament has been empowered to make laws, it is obvious that

in Article 246 legislative powers, whether of Parliament or of

54

State legislatures, are visualized as being "for" the territory of

India or some part of it.

58. Article 248 provides for the residuary power of legislation.

However, in this instance, the Constitution speaks of the powers

of Parliament in terms of the subject matters or fields of

legislative competence not enumerated in Concurrent and State

lists in the Seventh Schedule, etc. Article 248 does not mention

any specific territory. Nevertheless, in as much as it retains the

link to Article 246, it can only be deemed that the original

condition that all legislation be "for" the whole or some territory

of India has been retained.

59. It would be pertinent to note, at this stage that List I -

Union List of the Seventh Schedule clearly lists out many matters

that could be deemed to implicate aspects or causes that arise

beyond the territory of India. In particular, but not limited to,

note may be made of Entries 9 through 21 thereof. Combining

the fact that the Parliament has been granted residuary

legislative powers and competence with respect to matters that

are not enumerated in Concurrent and State Lists, vide Article

248, the fact that Parliament has been granted legislative powers

55

and competence over various matters, as listed in List I of the

Seventh Schedule, many of which may clearly be seen to be

falling in the class of extra-territorial aspects or causes, vide

Article 246, and the powers to make laws "for the whole or any

part of the territory of India", vide Article 245, we must conclude

that, contrary to the rigid reading of the ratio in ECIL,

Parliament's legislative powers and competence with respect to

extra-territorial aspects or causes that have a nexus with India

was considered and provided for by the framers of the

Constitution. Further, in as much as Article 245, and by

implication Articles 246 and 248, specify that it is "for the

whole or any part of the territory of India" that such legislative

powers have been given to the Parliament, it logically follows

that Parliament is not empowered to legislate with respect to

extra-territorial aspects or causes that have no nexus whatsoever

with India. To the extent that some of the implications of

learned Attorney General's propositions only reach such a limited

reading of the legislative powers of the Parliament, which

nevertheless are not as restricted as the narrow understanding of

the ratio in ECIL may suggest, we are in partial agreement with

the same.

56 60. When we look at Articles 249 (conditions under which

Parliament may legislate with respect to matters in List II of

Seventh Schedule, wherein the Council of States has deemed it

to be in national interest to do so) and 250 (ambit of

Parliamentary powers as inclusive of competence to legislate with

respect to matters in the State List while a Proclamation of

Emergency is in operation) we find that legislative powers of the

Parliament are spoken of, in the said articles also, only in terms

of as being "for the whole or any part of the territory of India".

Article 253 deals with legislation that may be needed to give

effect to various international agreements, and again the powers

are specified only in terms of making laws "for the whole or any

part of the territory of India." Nowhere within Chapter 1, Part XI

do we find support for the propositions of the learned Attorney

General that the Parliament may make laws "for" any territory

other than the "whole or any part of the territory of India." To

the contrary, we only find a repeated use of the expression "for

the whole or any part of the territory of India." It is a well known

dictum of statutory and constitutional interpretation that when

the same words or phrases are used in different parts of the

57

Constitution, the same meaning should be ascribed, unless the

context demands otherwise. In this case, we do not see any

contextual reasons that would require reading a different

meaning into the expression "for the whole or any part of the

territory" in the context of Articles 249, 250 or 253, than what

we have gathered from the text of Article 245.

IX

Wider Structural Analysis:

61. Article 260, in Chapter II of Part XI is arguably the only

provision in the Constitution that explicitly deals with the

jurisdiction of the Union in relation to territories outside India,

with respect to all three functions of governance - legislative,

executive and judicial. Learned Attorney General did not point to

this Article as lending particular support for his propositions.

However, on closer examination, Article 260 appears to further

support the conclusions we have arrived at with respect to Article

245. It provides as follows:

"Article 260. Jurisdiction of the Union in relation

to territories outside India - The Government of

India may by agreement with the Government of any

territory not being part of the territory of India

58

undertake any executive, legislative or judicial

functions vested in the Government of such territory,

but every such agreement shall be subject to, and

governed by, any law relating to the exercise of

foreign jurisdiction for the time being in force."

62. It is clear from the above text of Article 260 that it is the

Government of India which may exercise legislative, executive,

and judicial functions with respect of certain specified foreign

territories, the Governments of which, and in whom such powers

have been vested, have entered into an agreement with

Government of India asking it do the same. Indeed, from Article

260, it is clear that Parliament may enact laws, whereby it

specifies the conditions under which the Government of India

may enter into such agreements, and how such agreements are

actually implemented.

63. Nevertheless, the fact even in the sole instance, in the

Constitution, where it is conceived that India may exercise full

jurisdiction - i.e., executive, legislative and judicial - over a

foreign territory, that such a jurisdiction can be exercised only

upon an agreement with the foreign government (thereby

comporting with international laws and principles such as "comity

of nations" and respect for "territorial sovereignty" of other

59

nation-states), and the manner of entering into such

agreements, and the manner of effectuating such an agreement

has to be in conformity with a law specifically enacted by the

Parliament (whereby the control of the people of India over the

actions of the Government of India, even extra-territorially is

retained), implies that it is only "for" India that Parliament may

make laws. The Parliament still remains ours, and exclusively

ours. Though the Government of India, pursuant to Article 260,

acts on behalf of a foreign territory, there is always the

Parliament to make sure that the Government of India does not

act in a manner that is contrary to the interests of, welfare of,

well-being of, or the security of India. The foregoing is a very

different state of affairs from a situation in which the Parliament

itself acts on behalf of a foreign territory, as implicated by the

expression "make extra-territorial laws". The former comports

with the notions of parliamentary democracy in which the people

ultimately control the Executive through their Parliament; while

the latter indicates the loss of control of the people themselves

over their elected representatives.

60 64. The text of Articles 1 and 2 leads us to an irresistible

conclusion that the meaning, purport and ambit of Article 245 is

as we have gathered above. Sub-clause (c) of Clause (3) of

Article 1 provides that territories not a part of India may be

acquired. The purport of said Sub-Clause (c) of Clause 3 of

Article 1, pace Berubari Union and Exchange of Enclaves, Re 27is

that such acquired territory, automatically becomes a part of

India. It was held in Berubari, that the mode of acquisition of

such territory, and the specific time when such acquired territory

becomes a part of the territory of India, are determined in

accordance with international law. It is only upon such acquired

territory becoming a part of the territory of India would the

Parliament have the power, under Article 2, to admit such

acquired territory in the Union or establish a new state. The

crucial aspect is that it is only when the foreign territory becomes

a part of the territory of India, by acquisition in terms of relevant

international laws, is the Parliament empowered to make laws for

such a hitherto foreign territory. Consequently, the positive

affirmation, in the phrase in Clause (1) of Article 245, that the

Parliament "may make laws for the whole or any part of the

27 AIR 1960 SC 845.

61 territory of India" has to be understood as meaning that unless a

territory is a part of the territory of India, Parliament may not

exercise its legislative powers in respect of such a territory. In

the constitutional schema it is clear that the Parliament may not

make laws for a territory, as a first order condition, unless that

territory is a part of India.

X

Relevance of Case Law Cited by the learned Attorney General:

65. The learned Attorney General cited and relied on many

decisions in support of his arguments. We find that none of the

cases so cited have considered the issues of what the impact of

constitutional text, wider constitutional topological and structural

spaces, the representative capacity of a parliament and the like

would be on the extent of powers of the parliament. Moreover,

having gone through the cases, we do note that none stand for

the proposition that the powers of a parliament are unfettered

and that our Parliament possesses a capacity to make laws that

have no connection whatsoever with India.

66. Nevertheless, we will address a few of the cases relied on

by the learned Attorney General primarily for limited purpose of

62

locating their rationale and reasoning. In Governor General in

Council v. Raleigh Investments28, the key issue was about extra-

territorial operation of a law, and not whether the law as made

was with respect to aspects or causes outside the territory of

British India and bearing no nexus with it. In this regard the

Privy Council's observations about the Appellant's contention are

pertinent: "The appellant's arguments..... comprised two

contentions. It was first argued that these provisions were not

extra-territorial. It was also argued that even if they should be

found in any degree to operate extra-territorially, that would be

no ground of holding them to be invalid, so far as municipal

courts called upon to deal with them are concerned",29 and finally

"in our judgment therefore, the extent, if any, of extra-territorial

operation which is to be found in the impugned provisions, is

within the legislative powers given to the Indian Legislature by

the Constitution Act."30 It is clear that in the cited case, the Privy

Council was dealing with the issue of extra-territorial operation of

the law, and not extra-territorial law. In Wallace Brothers v. CIT,

Bombay City and Bombay Suburban District31 also the issue was

28 Supra note 9

29 Ibid, p. 273.

30 Ibid, p. 284.

31 Supra note 10

63

with regard to sufficiency of territorial connection, and it was held

that the principle - sufficient territorial connection - not the rule

giving effect to that principle - residence - is implicit in the

power conferred by the Government of India Act, 1935. In

Emmanuel Mortenssen32, the Court of Justiciary upheld the

jurisdiction of the local Sheriff with respect to the owners and

operator of a trawler boat used for fishing inside the estuary.

However, jurisdiction was not extended on the basis of

parliamentary supremacy or of powers to enact extra-territorial

laws. Rather, the principle enunciated was that an estuary, under

international law, falls within the territory of Scotland, and that

the North Sea Fisheries Convention of 1883 did not derogate

from the foregoing general principle of international law.

Consequently in as much as the operator or owner of that fishing

trawler engaged in acts that were prohibited within the territorial

limits over which the legislature that enacted the applicable

statute had jurisdiction, the local sheriff exercised proper

jurisdiction. Croft v. Dunphy33 was with regard to domestic laws

operating beyond the territorial limits, and it was recognized that

a law which protects the revenue of the states may necessarily

32 Supra note 6

33 Supra note 7

64

have to be operated outside the territorial limits, but that such

operation does not violate the principle that legislatures enact

laws with respect to aspects or causes that have a nexus with the

territory for which the legislature has the law making

responsibility for. The control of smuggling activities and revenue

collection were seen necessarily as related to the territorial

interests, and it was in furtherance of such territorial interests,

was extra-territorial operation permissible. In State v.

Narayandas34 the issue considered by the Bombay High Court

was with regard to the vires of a law enacted by a state

legislature declaring a bigamous marriage contracted outside the

territory of the state to be unlawful. The main issue was with

regard to the power of a state to legislate beyond its territory,

and Chief Justice Chagla held that it could not. One paragraph in

that decision that could be deemed to be supportive of the

learned Attorney General's propositions is:

"Now under our present Constitution, Parliament has

been given absolute powers. Therefore, today

Parliament may enact an extra-territorial law. The

only limitation on its powers is the practicability of the

law. If an extra-territorial law cannot be enforced,

then it is useless to enact it but no one can suggest

today that a law is void or ultra-vires which is passed

34 Supra note 12.

65 by the Parliament on the ground of its extra-

territoriality".

67. Clearly, the statements that under our Constitution

Parliament has been given absolute powers, and therefore it can

enact extra-territorial laws, are not in comport with present day

constitutional jurisprudence in India that the powers of every

organ of the State are as provided for in the Constitution and not

absolute. We discern that the second half of the excerpt cited

above provides the clue to the fact that Chief Justice Chagla was

concerned more with laws that require an operation outside

India, and not in terms of laws that have no connection with

India whatsoever. At best the comment reveals the concern of

the learned jurist about the Parliament having the competence to

enact laws with respect to objects and provocations lying outside

the territory, but whose effect is felt inside the territory. Hence,

that broad statement does not derogate from the textual

meaning, purport and ambit of Article 245 that we have

expounded hereinabove.

XI

Conclusion:

66 68. There are some important concerns that we wish to share

our thoughts on, before we proceed to answering the questions

that we set out with. Very often arguments are made claiming

supremacy or sovereignty for various organs to act in a manner

that is essentially unchecked and uncontrolled. Invariably such

claims are made with regard to foreign affairs or situations, both

within and outside the territory, in which the government claims

the existence of serious security risks or law and order problems.

Indeed, it may be necessary for the State to possess some

extraordinary powers, and exert considerable force to tackle such

situations. Nevertheless, all such powers, competence, and

extent of force have to be locatable, either explicitly or implicitly,

within the Constitution, and exercised within the four corners of

constitutional permissibility, values and scheme.

69. There are two aspects, of such extreme arguments claiming

absolute powers, which are worrisome. The first one relates to a

misconception of the concepts of sovereignty and of power, and a

predilection to oust judicial scrutiny even at the minimal level,

such as examination of the vires of legislation or other types of

state action. The second one relates to predilections of counsel of

67

asking for powers that are undefined, unspecified, vague and

illimitable be read into the constitutional text, as matter of some

principle of inherent design or implied necessity.

70. The modern concept of sovereignty emerged in a troubled

era of civil wars within the territories of, and incessant conflict

between, nation-states. At one end of the spectrum political

philosophers such as Thomas Hobbes and Jean Bodin postulated

the necessity of absolute power within the territory, arguing that

failure of order was inimical to the well being of the people, and

further arguing that if the governments were to not have such

absolute powers invariably leads to internal disorder. While it is

generally and uncritically argued that Hobbes and Bodin stood for

blind political absolutism, when viewed from a historical

perspective, they can also be seen as the starting points of

human beings quest for greater accountability of states and

governments, which were to be increasingly viewed as the

repositories of collective powers of the people. Hobbes

specifically recognized that governments would become unstable

and lose their legitimacy if they failed to protect the welfare of

the subjects. For Bodin, the absolute sovereign was tempered by

68

divine law (or "natural law"), and the customary laws of the

community. Alan James states that "[f]rom this basis it could be

argued that sovereignty lay not with the ruler but with the ruled.

In this way the ultimate authority could be claimed for the

people, with the government simply acting as their agent." (See:

Sovereign Statehood - The Basis of International Society35).

These seeds of accountability, carried within them the incipient

forms of arguments that would inexorably lead to the modern

notion of self-determination by the people: that each nation

state, formed by the people, and answerable to the people

through the organs of the State, would act in accordance with

the wishes of the people - both in terms of ordinary moments of

polity, and also in terms of constitutional moments, with the

latter setting forth, in greater or lesser specificity, the acts that

may or may not be done by the organs of the state.

71. The path to modern constitutionalism, with notions of

divided and checked powers, fundamental rights and affirmative

duties of the State to protect and enhance the interests of,

welfare of, and security of the people, and a realization that

35 Allen & Unwin, London (1986).

69 "comity amongst nations" and international peace were sine qua

non for the welfare of the people was neither straight forward,

nor inevitable. It took much suffering, bloodshed, toil, tears and

exploitation of the people by their own governments and by

foreign governments, both in times of peace and in times of war,

before humanity began to arrive at the conclusion that

unchecked power would sooner, rather than later, turn tyrannical

against the very people who have granted such power, and also

harmful to the peaceful existence of other people in other

territories. Imperial expansion, as a result of thirst for markets

and resources that the underlying economy demanded, with

colonial exploitation as the inevitable result of that competition,

and two horrific world wars are but some of the more prominent

markers along that pathway. The most tendentious use of the

word sovereignty, wherein the principles of self-determination

were accepted within a nation-state but not deemed to be

available to others, was the rhetorical question raised by Adolf

Hitler at the time of annexation of Austria in 1938: "What can

words like `independence' or `sovereignty' mean for a state of

only six million?"36 We must recognize the fact that history is

36 De Smith, Stanley A.: "Microstates and Micronesia" (New York, NYU Press 1970), p. 19.

70 replete with instances of sovereigns who, while exercising

authority on behalf of even those people who claimed to be

masters of their own realm, contradictorily claimed the authority

to exercise suzerain rights over another territory, its people and

its resources, inviting ultimately the ruin of large swaths of

humanity and also the very people such sovereigns, whether a

despot or a representative organ, claimed to represent.

72. India's emergence as a free nation, through a non-violent

struggle, presaged the emergence of a moral voice: that while

we claim our right to self-determination, we claim it as a matter

of our national genius, our status as human beings in the wider

swath of humanity, with rights that are ascribable to us on

account of our human dignity. Such a morality arguably does not

brook the claims of absolute sovereignty to act in any manner or

form, on the international stage or within the country. To make

laws "for another territory" is to denigrate the principle of self-

determination with respect to those people, and a denigration of

the dignity of all human beings, including our own. The debates

in the Constituent Assembly with regard to the wording of Article

51, which was cited earlier in this judgment, gives the true spirit

71

with which we the people of this country have vested our

collective powers in the organs of governance. This is so

particularly because they were made in the aftermath of World

War II, arguably the most brutal that mankind has ever fought,

and the dawn of the atomic age. In particular the statements of

Prof. Khardekar, are worth being quoted in extenso:

"Mr. Austin, a great jurist, says that there is no such

thing as international law at all - if there is anything it

is only positive morality.... In saying that there may

be positive morality I think even there he is wrong. If

there were to be morality amongst nations, well we

would not have all that has been going about. If there

is a morality amongst nations today, it is the morality

of robbers. If there is any law today it is the law of

the jungle where might is right...... The part that India

is to play is certainly very important because

foundations of international morality have to be laid

and only a country like India with its spiritual heritage

can do it...... Therefore it is in keeping with our history,

with our tradition, with our culture, that we are a

nation of peace and we are going to see that peace

prevails in the World."37

73. In granting the Parliament the powers to legislate "for"

India, and consequently also with respect to extra-territorial

aspects or causes, the framers of our Constitution certainly

intended that there be limits as to the manner in which, and the

37 Constituent Assembly Debates Official Report, 1948-49, page 601 (Lok Sabha Secretariat, New Delhi).

72 extent to which, the organs of the State, including the

Parliament, may take cognizance of extra-territorial aspects or

causes, and exert the State powers (which are the powers of the

collective) on such aspects or causes. Obviously, some of those

limits were expected to work at the level of ideas and of morals,

which can be inculcated by a proper appreciation of our own

history, and the ideas of the framers of our constitution. They

were also intended to have a legal effect. The working of the

principles of public trust, the requirement that all legislation by

the Parliament with respect to extra-territorial aspects or causes

be imbued with the purpose of protecting the interests of, the

welfare of and the security of India, along with Article 51, a

Directive Principle of State Policy, though not enforceable in a

court of law, nevertheless fundamental to governance, lends

unambiguous support to the conclusion that Parliament may not

enact laws with respect to extra-territorial aspects or causes,

wherein such aspects or causes have no nexus whatsoever with

India.

74. Courts should always be very careful when vast powers are

being claimed, especially when those claims are cast in terms of

73

enactment and implementation of laws that are completely

beyond the pale of judicial scrutiny and which the Constitutional

text does not unambiguously support. To readily accede to

demands for a reading of such powers in the constitutional

matrix might inevitably lead to a destruction of the complex

matrix that our Constitution is. Take the instant case itself. It

would appear that the concerns of learned Attorney General may

have been more with whether the ratio in ECIL could lead to a

reading down of the legislative powers granted to the Parliament

by Article 245. A thorough textual analysis, combined with wider

analysis of constitutional topology, structure, values and scheme

has revealed a much more intricately provisioned set of powers

to the Parliament. Indeed, when all the powers necessary for an

organ of the State to perform its role completely and to

effectuate the Constitutional mandate, can be gathered from the

text of the Constitution, properly analysed and understood in the

wider context in which it is located, why should such

unnecessarily imprecise arrogation of powers be claimed? To give

in to such demands, would be to run the risk of importing

meanings and possibilities unsupportable by the entire text and

structure of the Constitution. Invariably such demands are made

74

in seeking to deal with external affairs, or with some claimed

grave danger or a serious law and order problem, external or

internal, to or in India. In such circumstances, it is even more

important that courts be extra careful. The words of Justice

Jackson in Woods v. Cloyd W. Miller Co.,38 in dealing with war

powers, may be used as a constant reminder to be on guard:

"I agree with the result in this case, but the

arguments that have been addressed to us lead me to

utter more explicit misgivings..... The Government

asserts no constitutional basis for this legislation other

than this vague, undefined and undefinable "war

power."..... It usually is invoked in haste and

excitement when calm legislative consideration of

constitutional limitation is difficult. It is executed in a

time of patriotic fervor that makes moderation

unpopular. And, worst of all, it is interpreted by

judges under the influence of the same passions and

pressures. Always, as in this case, the Government

urges hasty decisions to forestall some emergency or

serve some purpose and pleads that paralysis will

result if its claims to power are denied or their

confirmation delayed. Particularly when the war power

is invoked to do things to the liberties of the people,...

.... that only indirectly affect conduct of war and do

not relate to the management of war itself, the

constitutional basis should be scrutinized with care."

75. The point is not whether and how India's constitution grants

war powers. The point is about how much care should be

exercised in interpreting the provisions of the Constitution. Very

38 333 U.S. 138 75

often, what the text of the Constitution says, when interpreted in

light of the plain meaning, constitutional topology, structure,

values and scheme, reveals the presence of all the necessary

powers to conduct the affairs of the State even in circumstances

that are fraught with grave danger. We do not need to go looking

for powers that the text of the Constitution, so analysed, does

not reveal.

76. We now turn to answering the two questions that we set

out with:

(1) Is the Parliament constitutionally restricted from

enacting legislation with respect to extra-territorial aspects

or causes that do not have, nor expected to have any,

direct or indirect, tangible or intangible impact(s) on or

effect(s) in or consequences for: (a) the territory of India,

or any part of India; or (b) the interests of, welfare of,

wellbeing of, or security of inhabitants of India, and

Indians?

The answer to the above would be yes. However, the

Parliament may exercise its legislative powers with respect

to extra-territorial aspects or causes, - events, things,

phenomena (howsoever commonplace they may be),

resources, actions or transactions, and the like -, that

76

occur, arise or exist or may be expected to do so, naturally

or on account of some human agency, in the social,

political, economic, cultural, biological, environmental or

physical spheres outside the territory of India, and seek to

control, modulate, mitigate or transform the effects of such

extra-territorial aspects or causes, or in appropriate cases,

eliminate or engender such extra-territorial aspects or

causes, only when such extra-territorial aspects or causes

have, or are expected to have, some impact on, or effect in,

or consequences for: (a) the territory of India, or any part

of India; or (b) the interests of, welfare of, wellbeing of, or

security of inhabitants of India, and Indians.

It is important for us to state and hold here that the powers

of legislation of the Parliament with regard to all aspects or

causes that are within the purview of its competence,

including with respect to extra-territorial aspects or causes

as delineated above, and as specified by the Constitution,

or implied by its essential role in the constitutional scheme,

ought not to be subjected to some a-priori quantitative

tests, such as "sufficiency" or "significance" or in any other

77

manner requiring a pre-determined degree of strength. All

that would be required would be that the connection to

India be real or expected to be real, and not illusory or

fanciful. Whether a particular law enacted by Parliament

does show such a real connection, or expected real

connection, between the extra-territorial aspect or cause

and something in India or related to India and Indians, in

terms of impact, effect or consequence, would be a mixed

matter of facts and of law. Obviously, where the Parliament

itself posits a degree of such relationship, beyond the

constitutional requirement that it be real and not fanciful,

then the courts would have to enforce such a requirement

in the operation of the law as a matter of that law itself,

and not of the Constitution.

(2) Does the Parliament have the powers to legislate "for"

any territory, other than the territory of India or any

part of it?

The answer to the above would be no. It is obvious that

Parliament is empowered to make laws with respect to

aspects or causes that occur, arise or exist, or may be

78

expected to do so, within the territory of India, and also

with respect to extra-territorial aspects or causes that have

an impact on or nexus with India as explained above in the

answer to Question 1 above. Such laws would fall within the

meaning, purport and ambit of the grant of powers to

Parliament to make laws "for the whole or any part of the

territory of India", and they may not be invalidated on the

ground that they may require extra-territorial operation.

Any laws enacted by Parliament with respect to extra-

territorial aspects or causes that have no impact on or

nexus with India would be ultra-vires, as answered in

response to Question 1 above, and would be laws made

"for" a foreign territory.

77. Let the appeal be listed before an appropriate bench for

disposal. Ordered accordingly.

......................................CJI.

....................................J.

[B. SUDERSHAN REDDY]

....................................J.

79

[K.S.RADHAKRISHNAN]

....................................J.

[SURINDER SINGH NIJJAR]

....................................J.

[SWATANTER KUMAR]

NEW DELHI

March 1, 2011.

80