TMI Blog2011 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... f India; or (b) the interests of, welfare of, wellbeing of, or security of inhabitants of India, and Indians. It is obvious that Parliament is empowered to make laws with respect to aspects or causes that occur, arise or exist, or may be 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. - Civil Appeal No. 7796 of 1997 - - - Dated:- 1-3-2011 - S.H. KAPADIA, B. SUDERSHAN REDDY, K.S. PANICKER RADHAKRISHNAN, SURINDER SINGH NIJJAR, SWATANTER KUMAR, JJ. S. Ganesh, Senior Advocate (U.A. Rana, Ms. Mrinal Majumdar and Ms. Devina Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 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. 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. CIT [1989] 2 SCC 642, 646 ([1990] 183 ITR 43 (SC).) ( ECIL ) and suggests that Parliament's powers to 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 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 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 meanings. Inasmuch 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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. 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 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., section 9(1)(vii) of the Income-tax Act (1961) indicate such a nexus. In the proceedings before us, the appellant withdrew its challenge to the constitutional validity of section 9(1)(vii)(b) of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Parliament may not be invalidated on the ground that they may need to be or are being operated extra-territorially. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be beneficial to India. It was concluded in ECIL* that 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 (page 55 of 183 ITR) : 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. (emphasis1 added). We are of the opinion that the distinction drawn in ECIL2 between make laws and operation of law is a valid one, and leads to a correct assessment of the relationship between clauses (1) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... batim, were the following : 1. There is a 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 extraterritorial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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 twentieth 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 extraterritorial 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 by Parliament, and hence 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 internatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Committee intended clause 179(2), and hence clause (2) of article 245, to be an independent, and a separate, source of legislative powers to Parliament to make extra-territorial laws . The second inference that we have been asked to make is that inasmuch 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 of his propositions and arguments : Ashbury v. Ellis [1893] A.C. 339, Emmanuel Mortensen v. David Peters [1906] 8 F (J.) 93, Croft v. Dunphy [1933] AC 156, British Columbia Electric Railway Company Ltd. v. The King [1946] AC 527 ([1947] 15 ITR (EC) 1 (PC)), Governor General in Council v. Raleigh Investment Co. Ltd. [1944] 12 ITR 265 (FC), Wallace Brothers and Co. v. CIT [1948] 16 ITR 240 (PC), A. H. Wadia v. CIT [1949] 17 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituent Assembly. (See Kesavananda Bharati Sripadagalvaru v. State of Kerala [1973] 4 SCC 225 ; AIR 1973 SC 1461 and I. R. Coelho v. State of Tamil Nadu [2007] 2 SCC 1). 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 into the indeterminate and unforeseeable future. 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. Neverthel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose as possible to the text, by gathering the plain ordinary meaning, and by sweeping our vision and comprehension across the entire document to see whether that meaning is validated by constitutional values and scheme. 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 I, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the territory of India . The above understanding comports with the contemporary understanding, that emerged in the twentieth 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. Inasmuch 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. 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 transform both independently existing aspects in the world an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternal 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 Law (Vol. 1, PEACE 9th ed., page 125, 9 (Longman Group, UK, 1992) 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 twentieth 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Federal Commissioner of Taxation [1933] 49 CLR. 220 at 239). 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, 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuant 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. 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 Parliament be a Parliament for India. The word for , that connects the territory of India to the legislative powers of 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 soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at power in a manner that is not related to their interests, benefits, welfare and security. 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 then seeks to draw the inference that inasmuch 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, notwithstanding the fact that many of such aspects or causes have no impact on or nexus with India. It is important to draw a clear distinction between the acts and functions of making laws and the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 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 law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only be deemed that the original condition that all legislation be for the whole or some territory of India has been retained. 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 Parliament has been granted residuary legislative powers and competence with respect to matters that are not enumerated in the Concurrent and State Lists, vide article 248, the fact that Parliament has been granted legislative powers 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 Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alysis 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. The learned AttorneyGeneral did not point to this article as lending particular support for his propositions. However, on a closer examination, article 260 appears to further support the conclusions we have arrived at with respect to article 245. It provides as follows: 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 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. 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 to certain specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 the Parliament would 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, that Parliament is empowered to make laws for such a hitherto foreign territory. Consequently, the positive affirmation, in the phrase in clause (1) of article 245, that Parliament may make laws for the whole or any part of the 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 Parliament may not make laws for a territory, as a first order of condition, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssen [1906] 8 F (J.) 93, 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 inasmuch 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. Dunphy [1933] AC 156 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 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 asking that powers that are undefined, unspecified, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational peace were the sine qua non for the welfare of the people was neither straightforward, 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 ? We must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th our tradition, with our culture, that we are a nation of peace and we are going to see that peace prevails in the World. * In granting 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 extent to which, the organs of the State, including 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 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 often, what the text of the Constitution says, when interpreted in the 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. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 No. 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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