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LEGISLATIVE POWERS Article 246 and List I, II and III in the Seventh Schedule of the Constitution confer legislative powers on Parliament and State Legislatures. Parliament has exclusive power to make laws with respect to any of the matters in List I while State Legislatures have exclusive power to make laws with respect to matters in List II, whereas both the Parliament and State Legislatures have power to make laws with respect to matters in List III. List I is known as the Union List, List II as the State List and List III as the Concurrent List. Residuary power of Legislation is vested in Parliament by virtue of Article 246(6) and entry 97 in List I. The power of State Legislatures to make laws is subject to the power of Parliament to make laws with respect to matters in List I and List III. In Naga Peoples Movement of Human Rights v. Union of India it was said that while examining the legislative competence of parliament to make a law all that is required to be seen is whether the subject matter falls in List II in which Parliament cannot enter for in the view of the residuary power vesting in the Parliament, other matters are not outside the legislative competence of the parliament. The pith and substance of the legislation resolves the question whether the legislature has kept itself within the jurisdiction assigned to it or has encroached upon a forbidden field. Where pith and substance of the legislation is covered by an entry within the permitted jurisdiction of the legislature any incidental encroachment in the rival field is to be disregarded. A matter mentioned in an entry in any list is construed to cover all ancillary or subsidiary matters which can reasonably be said to comprehend in it. Entries are given widest possible construction and where wide construction of any entry leads to a conflict or overlapping with another entry in the same or different list the rule of harmonious construction is applied so as to reconcile the conflict and to give effect to all of them. According to Article 254 of the constitution of India a law made by a State Legislature with respect to a matter in Concurrent List if repugnant to a law made by the Parliament will be void to the extent of repugnancy unless the state law has received assent of the President in which case it will prevail in that State. The doctrine of pith and substance which permits incidental encroachment in the rival field makes it possible that a law made by the state legislature on some matters in List II makes some incidental encroachment on some matters in List I. Such an incidental encroachment will be valid if the field of encroachment is not covered, but if the field is already covered, such an

encroachment will be void to the extent of repugnancy. If subsequently the field is covered by a law made by the parliament, then that incidental encroachment will become void. Repugnancy arises when the superior legislation evinces an intention to cover the entire field leaving no room for the rival legislation to operate in that field1. In case of direct conflict between competing legislation when these conflicting legislations cannot be reconciled and it becomes impossible to give effect to both, repugnancy arises. In colourable legislation the legislation purporting to act within the limits of its powers actually transgresses its powers. Neither the parliament nor the state legislature can violate any provisions of the Constitution of India. PRESUMPTION OF CONSTITUTIONALITY There is a presumption of constitutionality of the rule. The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, since the legislature or the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions. Therefore there is presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the Constitution. If the provision of a law or rule is construed in such a way as would make it consistent with the Constitution and another interpretation would render the provision or the rule unconstitutional, the court would lean in favour of the former construction2. There is a presumption that the legislature does not exceed its jurisdiction and burden of establishing that the act is not within the competence of the legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires3. Once a citizen is able to establish that the impugned legislation has invaded his fundamental rights under article 19(1) (g) of the Constitution, the state must justify that the law is saved under clause (6) of the same article4. Similarly in Khyerbari Tea Co. V. State of Assam5 it has been held that if a law is shown to invade the freedom of trade under article 301, the onus shifts to the state to satisfy that restrictions imposed are reasonable and in public interest within the meaning of article 304(b).
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Deep Chand v. State of UP AIR 1959 SC 648 ML Kamra v. New India Assistance Co. Ltd AIR 1992 SC 1072 3 Saghir Ahmed v. State of UP AIR 1954 SC 41 4 Saghir Ahmed v. State of UP AIR 1954 SC 728

RULE OF CONSTRUCTION If on one construction a given statute will become ultra vires the powers of the legislature whereas on another construction, which maybe open, the statute remains effective and operative, the court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of its jurisdiction6. This rule is applicable only when two rules are possible as to the meaning of the statutory language. The Supreme Court applied this rule in the construction of section 124-A of the Indian Penal Code. This section relating to offence of sedition makes a person punishable who by words, either spoken or written, or by sign or visible representations, or otherwise brings or intends to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law. The Supreme Court held that on a correct construction, the provisions of the section are limited in their application, to acts involving intention or tendency to create disorder or disturbance of law and order or incitement of violence, and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of articles 19(1) (a) and 19(2) of the Constitution7. In the case of Sunil Batra v. Delhi Administration8 the Supreme Court upheld the validity of section 30(2) of the Prisons Act 1894. Section 30(2) provides for solitary confinement of a prisoner under sentence of death in a cell. Section 56 of the same Act, however, provides for the confinement of a prisoner in irons for his safe custody. The Supreme Court upheld the validity of both these sections by construing them narrowly so as to avoid their being declared invalid on the ground that they were isolative of the rights guaranteed under articles 14, 19 and 21 of the Constitution. The case of TS Mankad v. State of Gujarat9 is a good illustration of restriction of general words by construction so as to avoid invalidity. In this case the question related to the construction of a service rule which provided that a government servant shall, unless for special reasons otherwise directed by Government, retire from service on completing his 55 years of age. The words unless for special reasons otherwise directed by the government, were quite general but were not construed to authorise the government to retire a civil servant before attaining 55 years of age as that construction would have brought the rule in conflict with article 311 of the Constitution. Article 311 was interpreted in the case of Motiram Deka v. General Manager, NEF
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AIR 1964 SC 925 Black Wood v. Reg [1882] 8 AC 81 7 Kedarnath v. State of Bihar AIR 1962SC 955 8 AIR 1978 SC 1675 9 AIR 1970 SC 143

Railways10 and it was held that the rule did not provide for any period of service on completion of which the power to retire before the attainment of the age of superannuation could be exercised. These general words were confined as giving power to the government to allow the civil servant to remain in service even beyond the age of 55 years for special reasons. As the general words are construed in a limited sense to avoid the statute becoming unconstitutional in the same way the words may be construed in the wider sense when the narrow construction renders the law unconstitutional and that result can be avoided by giving the words a wider meaning. When during the pendency of a legislative measure the powers of a legislature undergo a change then the construction of general words is made with reference to the powers of the legislature existing at the time when the process of law making is completed. When any enactment cannot be saved by construing it to be consistent with its constitutionality then it is to be seen whether it can be saved partly if the test of severability is satisfied. The test is not of textual severability but of substantial severability which permits even the modification of the text in order to achieve severance but this can be done only when the court is satisfied that it is affecting no change in the substantial purpose and effect of the impugned provision.


AIR 1964 SC 600