Judicial Doctrines

Judicial Doctrine:
1. A doctrine is a principle, theory, or position that is usually
applied and upheld by courts of law.
2. In Indian Constitutional law also, there are different judicial
doctrines that develop over time as per the interpretation given
by the judiciary.
3. Some of the important judicial doctrines are discussed in this
article.

A. Doctrine of Basic Structure

1. The constituents of basic structure are not clearly defined by

the Supreme Court of India.
2. Parliamentary democracy, fundamental rights, secularism,
federalism, judicial review etc. are all held by courts as the
basic structure of Indian Constitution.

Origin:
1. The origins of the basic structure doctrine are found in the
German Constitution which, after the Nazi regime, was
amended to protect some basic laws.

Important Judgements:
1. In Kesavananda Bharati case 1973, the Supreme Court of
India for the first time ruled that the parliament has the power
to amend any part of the constitution but it cannot alter the
“basic structure of the constitution”.
2. It was reaffirmed by the SC in the Indira Nehru Gandhi v Raj
Narain case (1975).
The SC court invalidated a provision of the 39 Amendment Act
(1975) which kept the election disputes involving the Prime Minister
and the Speaker of Lok Sabha outside the jurisdiction of all courts.
 3. Basic structure doctrine was reaffirmed in the Minerva Mills
case, 1980 and later in the Waman Rao case, 1981.
In this case the Supreme Court examined the validity of Article 31A
and Article 31B of the Constitution of India with respect to the
doctrine of basic Structure.

B. Doctrine of Separation of Powers

1. It mainly signifies the division of powers between various

organs of the state; executive, legislature and judiciary.
2. Separation of powers signifies mainly three formulations of
Governmental powers:
a. The same person should not form part of more than one of the
three organs of the state.
b. One organ should not interfere with any other organ of the
state.
c. One organ should not exercise the functions assigned to any
other organ.

Constitutional Provisions:
Article-50 of the Directive Principles of State Policy (DPSP) of the
Indian Constitution separates the judiciary from executive as, “the
state shall take steps to separate judiciary from the executive in the
public services of the state and except this there is no formal and
dogmatic division of power”.

Important Judgements:
1. In Ram Jawaya v. S tate of Punjab (1955) case, the SC held:
“Indian Constitution has not indeed recognized the doctrine of
separation of powers in its absolute rigidity but the functions of
the different parts or branches of the government have been
sufficiently differentiated.”
2. In Indira Nehru Gandhi v. Raj Narain (1975), the SC held:
“Separation of powers is part of the basic structure of the
 constitution. None of the three separate organs of the republic
can take over the functions assigned to the other”.

C. Doctrine of Pith and Substance

Pith means ‘true nature’ and Substance means ‘the most important
or essential part of something’.

Origin:
The doctrine was first acknowledged in the Canadian Constitution
and In India, it came to be adopted in the pre-independence period,
under the Government of India Act, 1935.

Applicability:
1. The Doctrine of Pith and Substance is usually applied where
the question arises of determining whether a particular law
relates to a particular subject (mentioned in Seventh
Schedule), the court looks to the substance of the matter.
2. Apart from its applicability in cases related to the competency
of the legislature (Article 246), the Doctrine of Pith and
Substance is also applied in cases related to repugnancy in
laws made by Parliament and laws made by the State
Legislatures (Article 254).
The doctrine is employed in such cases to resolve the inconsistency
between laws made by the Centre and the State Legislature.

Important Judgement:
In Prafulla v. Bank of Commerce (1946), the SC held that a State
law, dealing with money lending (a State subject), is not invalid,
merely because it incidentally affects promissory notes.

D. Doctrine of Incidental or Ancillary Powers

1. It has developed as an addition to the Doctrine of Pith and

Substance.
 2. This doctrine is invoked when there is a need to aid the
principal legislation in question.
3. The Doctrine of Pith and Substance deals only with subjects
but the Doctrine of Incidental or Ancillary Powers deals with
the power to legislate on such subjects and the matters
connected thereto.

Origin:
The evolution of this Doctrine can be traced back to “R. v.
Waterfield (1963)”, a decision of the English Court of Appeal.

Constitutional Provision:
1. Article 4 talks about power to make consequential changes in
the law on matters supplemental and incidental to the law
providing for altering the names of states under Article 2 and
3.
2. Article 169 talks about the power given to the parliament on
abolition or creation of Legislative Councils in States “as may
be necessary to give effect to the provisions of the law and
may also contain such supplemental, incidental and
consequential provisions as Parliament may deem necessary.”

Important Judgement:
The SC in the State of Rajasthan v. G Chawla (1958) stated: “The
power to legislate on a topic of legislation carries with it the power
to legislate on an ancillary matter which can be said to be
reasonably included in the power given.”

E. Doctrine of Severability

1. It i s also known as the doctrine of separability and protects

the Fundamental Rights of the citizens.
2. As per clause (1) of the Article 13 of the Constitution, if any of
the laws enforced in India are inconsistent with the provisions
 of fundamental rights, they shall, to the extent of that
inconsistency, be void.
The whole law/act would not be held invalid, but only the provisions
which are not in consistency with the Fundamental rights.
3. Limitation:
If the valid and invalid part are so closely mixed up with
each other that it cannot be separated then the whole law or act will
be held invalid.

Origin:
The Doctrine of Severability finds its roots in England in the case of
Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company
Ltd. where the issue was related to a Trade clause.

Important Judgements:
1. In A.K. Gopalan v. State of Madras (1950), the SC held that in
case of inconsistency to the Constitution, only the disputed
provision of the Act will be void and not the whole of it, and
every attempt should be made to save as much as possible of
the act.
2. In the State of Bombay v. F.N. Balsara (1951), eight sections
of the Bombay Prohibition Act were declared invalid, the
Supreme Court said that the portion which was invalid to the
extent of fundamental rights was separable from the rest of
the act.

F. Doctrine of Eclipse

1. It is applied when any law/act violates the Fundamental Rights

(FR).
In such a case, the FR overshadows the law/act and makes it
unenforceable but not void ab initio (Having no legal effect from
inception).
2. They can be reinforced if the restrictions posed by the
fundamental rights are removed.
 3. It is only against the citizens that these laws/acts remain in a
dormant condition but remain in operation as against
non-citizens who are not entitled to fundamental rights.

Constitutional Provisions:
Doctrine of eclipse is contained in Article 13(1) of the Indian
Constitution. The doctrine of eclipse does not apply to
post-constitutional laws.

Important Judgement:
It was first introduced in India in Bhikaji Narain Dhakras v. State of
Madhya Pradesh (1955) where in the Central Provinces and Berar
Motor Vehicles (Amendment) Act, 1947 empowered the Provincial
Government to take up the entire Provincial Motor Transport
Business, these are violative of article 19(1) (g).
The Supreme Court held that the impugned law became, for the
time being, eclipsed by the fundamental right.

G. Doctrine of Territorial Nexus

It says that laws made by a State Legislature are not applicable

outside the state, except when there is a sufficient nexus between
the state and the object.

Constitutional Provisions:
The doctrine derives its power from Article 245 of the Indian
Constitution. Article 245 (2) provides that no law made by the
Parliament would be valid on the ground that it would have
extra-territorial operation i.e. takes effect outside the territory of
India.

Important Judgements:
1. In A.H. Wadia v. Income Tax Commissioner (1948), it was held
that a question of extraterritoriality of enactment can never be
 raised against a Supreme Legislative Authority on the grounds
of questioning its validity.
2. In the State of Bombay vs RMDC (1952), the SC held that
there existed a sufficient Territorial Nexus to enable the
Bombay Legislature to tax the respondent as all the activities
which the competitor is ordinarily expected to undertake took
place mostly within Bombay.

H. Doctrine of Colourable Legislation

1. This Doctrine is also called “Fraud on the Constitution”.

2. The Doctrine of Colourable Legislation comes into play when
a Legislature does not possess the power to make law upon a
particular subject but nonetheless indirectly makes one.
By applying this principle the fate of the Impugned Legislation is
decided.

Origin:
This Doctrine traces its origin to a Latin Maxim which, in this
context, implies: “Whatever legislature cannot do directly, it cannot
do indirectly”.

Constitutional Provision:
The doctrine is usually applied to Article 246 which has demarcated
the Legislative Competence of the Parliament and the State
Legislative Assemblies by outlining the different subjects under
Union list, State list and Concurrent list.

Limitation:
1. The doctrine has no application where the powers of a
Legislature are not
fettered by any Constitutional limitation.
2. It is also not applicable to Subordinate Legislation.

Important Judgement:
In R.S Joshi v. Ajit Mills (1977), the SC observed that “In the statute
of force, the colourable exercise of or extortion on administrative
force or misrepresentation on the constitution, are articulations
which only imply that the assembly is clumsy to authorise a specific
law, albeit the mark of competency is struck on it, and afterwards it
is colourable enactment.”

I. Doctrine of Pleasure

Origin:
The doctrine of pleasure has its origins in English law as per which,
a civil servant holds office during the pleasure of the Crown.

Constitutional Provisions:
1. Under Article 155, the Governor of a State is appointed by the
President and
holds the office during the pleasure of the President.
2. Under Article 310, the civil servants (members of the Defence
Services, Civil Services, All-India Services or persons holding
military posts or civil posts under the Centre/State) hold office
at the pleasure of the President or the Governor as the case
may be.
Limitation:
Article 311 places restrictions on this doctrine and provides
safeguards to civil
servants against any arbitrary dismissal from their posts.

Important Judgements:
1. The SC in State of Bihar v. Abdul Majid (1954), held that the
English Common Law has not been adopted in its entirety and
with all its rigorous implications.
2. In Union of India v. Tulsiram Patel (1965), the SC held that the
“pleasure doctrine” was neither a relic of the feudal age nor
was it based on any special prerogative of the British Crown
but was based upon public policy.
J. Doctrine of Harmonious Construction

The term harmonious construction refers to such construction by

which harmony or oneness amongst various provisions of an
enactment is arrived at.
When the words of statutory provision bear more than one meaning
and there is a doubt as to which meaning should prevail, their
interpretation should be in a way that each has a separate effect
and neither is redundant or nullified.

Origin:
The Doctrine of Harmonious construction originated through
interpretations given by courts in a number of cases.
The evolution of the doctrine can be traced back to the
very first amendment made in the Constitution of India with the
landmark judgement of Shankari Prasad v. Union of India.

Principles of rule of Harmonious construction:

In the landmark case of CIT v. Hindustan Bulk Carriers
(2003) the supreme court laid down five principles of rule of
harmonious construction:
1. The courts must avoid a head-on clash of seemingly
contradicting provisions and they must construe the
contradictory provisions.
2. The provision of one section cannot be used to defeat the
provision contained in another unless the court, despite all its
efforts, is unable to find a way to reconcile their differences
3. When it is impossible to completely reconcile the differences
in contradictory provisions, the courts must interpret them in
such a way so that effect is given to both the provisions as
much as possible.
4. Courts must also keep in mind that interpretation that reduces
one provision to useless number or death is not harmonious
construction.
 5. To harmonise is not to destroy any statutory provision or to
render it fruitless.

Important Judgements:
1. In the Re-Kerala education bill 1951 case it was held that in
deciding the fundamental rights the court must consider the
directive principle and adopt the principle of harmonious
construction. So, two possibilities are given effect as much as
possible by striking a balance.
2. In East India hotels ltd. V. Union of India (2001) case, it was
held that an Act is to be read as a whole, the different
provisions have to be harmonised and the effect to be given to
all of them.