Doctrine of Escheat and bona vacantia

Definition

Black’s Law Dictionary defines ‘escheat’ as:

1. The reversion of land ownership back to the lord when the immediate tenant dies without heirs.

2. Reversion of property (especially real property) to the state upon the death of an owner who has neither a will nor any legal heirs.

3. Property that has so reverted.

Thus we see that Doctrine of Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or the state. It serves to ensure that property is not left in ‘limbo’ without recognized ownership.

Doctrine of Escheat also finds mention inArticle 296 of the Constitution.

“Article 296 – Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State byescheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.”
Doctrine of Escheat or bona vacantia in India

The Doctrine of bona vacantia or Escheat was declared to be a part of the law in India by the Privy Council as early as in 1860 in Collector of Masulipatam v. Cavary Vancata Narrainappah[1]. This case also held that the General Law of universal application and that General Law was that “private ownership not existing, the State must be the owner as the ultimate Lord”.

The right to acquire by way of escheat or asbona vacantia is not a creature of any Private Law of Succession but is an attribute ofSovereignty. It is true that Statutory provisions of Private Law of Succession such as Section 29 of Hindu Succession Act sometimes expressly recognise right of the State to acquire properties by escheat or as bona vacantia. But that right would have been very much there even without any such provisions[2].

The case of Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare[3] categorically states that:

“Property of an intestate dying without leaving lawful heirs and the property of a dissolved Corporation passes to the Government byescheat or as bona vacantia". And relying on this decision, the Supreme Court in Narendra Bahadur Tandon v. Shanker Lal[4], has reiterated that "in India the law is well-settled that the property of an intestate dying without leaving lawful heirs, and the property of a dissolved Corporation, passes to the Government by escheat or as bona vacantia" and that "if the Company had a subsisting interest in the lease on the date of dissolution, such interest much necessarily vest in the Government by escheat or as bona vacantia.”

It is not only the tangible property that comes within the ambit of Doctrine of Escheat orbona vacantia. The word ‘property’, when used without any qualification or limitation, as above, is a term of the widest import. In the case of J.K. Trust v. Commissioner of Income Tax[5], it was stated that “Property signifies every possible interest which a person may acquire”. There should, therefore, be no doubt that the expression ‘property’ used without any qualification or limitation would even include a tenant's interest in the demised land or premises. The interest of a Tenant is usually heritable as well as transferable and it would be trite to say that only owner of a property, however limited, can transfer or transmit the same[6]. This reasoning was upheld in the case of Municipal Corporation of Greater Bombay v. Lala Pancham[7], wherein it was held that the tenant has, under the Transfer of Property Act or the Rent Control Legislations, an interest in the demised premises which would squarely fall within the expression ‘property’.

Doctrine of Pleasure

Definition and Origin

Article 156 (1) states that the Governor shall hold office during the pleasure of the President. What does ‘pleasure of the President’ mean? There are various connotations and contexts attached to this term.

Before understanding the meaning of Doctrine of Pleasure in Indian Context, let us first understand the genesis of this term.

The origin of the Doctrine of Pleasure can be traced to a Latin Maxim durante bene placitowhich means “during good pleasure” or “during the pleasure of the appointer” as opposed to an office held dum bene se gesserit which means “during good conduct”, also called quadiu se bene gesserit (“as long as he shall behave himself well”).[1]

Black’s Dictionary defines ‘Pleasure Appointment’ as the assignment of someone to employment that can be taken away at any time, with no requirement for notice or hearing.

We have borrowed this concept from the English Law. In Dunn v. Queen[2], the Court of Appeal referred to the old common law rule that a public servant under the British Crown had no tenure but held that his position is at the absolute discretion of the Crown.

However, the Indian situation is quite different. Let us discuss how this doctrine has taken shape in India.

Application of Doctrine of Pleasure in India

There are three kinds of Offices held during the Pleasure of the President that are referred to in our Constitution.

1. Offices held during the pleasure of the President without any restrictions – Article 75(2) relating to ministers, Article 76 (4) relating to Attorney General and Article 156(1) relating to Governors. There are no restrictions whatsoever. The Governors and Ministers can be dismissed summarily by the President.

2. Offices held during the pleasure of the President with restrictions – “The pleasure of the President is clearly controlled by the provisions of Art. 311, and so, the field that is covered by Art. 311 on a fair and reasonable construction of the relevant words used in that article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President would still be there, but it has to be exercised in accordance with the requirements of Art. 311”[3]. This includes Members of defence service, Members of civil service of the Union, Member of an All-India service, holders of posts connected with defence or any civil post under the Union, Member of a civil service of a State and holders of civil posts under the State.

3. Appointments to which the said doctrine is not applicable – This includes constitutional functionaries such as the Supreme Court Judges, the High Court Judges, the Election Commissioners, the Comptroller and Auditor General etc. that cannot be removed except by way of Impeachment.

Doctrine of Pleasure in relation to the Governor

It is the first scenario (pleasure of the President without any restrictions) that we are concerned with in the present post. We see that there is no such thing as absolute and unfettered discretion in India. There is a distinction between the doctrine of pleasure as it existed in a medieval set-up and the doctrine of pleasure in a democracy governed by Rule of Law. Where Rule of Law prevails, there is nothing like unrestricted discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists.

Thus where there are no express limitations or restrictions existing, it should be read as being subject to the “fundamentals of constitutionalism”.

In the case of B.P. Singhal v. Union of India & Another[4], the court has categorically stated that the ‘Doctrine of Pleasure’ in its absolute unrestricted application does not exist in India. The court further said that:

“The said doctrine is severely curtailed in the case of government employment, as will be evident from clause (2) of Article 310 and clauses (1) and (2) of Article 311[5]. Even in regard to cases falling within the proviso to clause (2) of Article 311, the application of the doctrine is not unrestricted, but moderately restricted in the sense that the circumstances mentioned therein should exist for its operation.”

Even the Canadian Supreme Court in Wells v. Newfound land[6] has concluded that “at pleasure” doctrine is no longer justifiable in the context of modern employment relationship.

B.P. Singhal’s Case also held that the doctrine of pleasure is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, “at pleasure” doctrine enables the removal of a person holding office at the pleasure of an Authority, summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. However, the withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.

Thus, we see that Doctrine of Pleasure refers to the discretion vested in the President to remove various constitutional functionaries. Article 156 merely mentions that the Governor shall hold office during the pleasure of the President. It does not prescribe any conditions for exercising this pleasure. However, this does not mean that the discretion is absolute, unrestricted and unfettered. The President can remove a Governor summarily but valid explanation for such removal must exist.

It is important to note that most of things mentioned above have been discussed and mentioned in the B.P. Singhal’s Case. It was a Constitutional Bench Judgment and is considered to be a landmark case on the Doctrine of Pleasure. In the next post, we will study the Constituent Assembly Debates relating to the Doctrine of Pleasure and the scope of Judicial Review in such cases.

[1] Union of India v. Tulsiram Patel, (1985) 3 SCC 398.

[2] 1896 (1) QB 116.

[3] Moti Ram v. N.E. Frontier Railway, AIR 1964 SC 600.

[4] Writ Petition (Civil) No. 296 of 2004.

[5] Article 311 (2) – Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.”

[6] 1999 (177) DL (4th) 73(SCC).

Doctrine of Pith and Substance

Doctrine of Pith and Substance’. The basic purpose of this doctrine is to determine under which head of power or field i.e. under which list (given in the Seventh Schedule) a given piece of legislation falls.

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

Doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter. Thus, if the substance falls within Union List, then the incidental encroachment by the law on the State List does not make it invalid[1].

This is essentially a Canadian Doctrine now firmly entrenched in the Indian Constitutional Jurisprudence. This doctrine found its place first in the case of Cushing v. Dupey[2]. In this case the Privy Council evolved the doctrine, that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.

Need for the Doctrine of Pith and Substance in the Indian Context

The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.

“It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude.”[3]

Incidental or Ancillary Encroachment

The case of Prafulla Kumar Mukherjee v. The Bank of Commerce[4]  succinctly explained the situation in which a State Legislature dealing with any matter may incidentally affect any Item in the Union List. The court held that whatever may be the ancillary or incidental effects of a Statute enacted by a State Legislature, such a matter must be attributed to the Appropriate List according to its true nature and character.

Thus, we see that if the encroachment by the State Legislature is only incidental in nature, it will not affect the Competence of the State Legislature to enact the law in question. Also, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid[5].

However, the situation relating to Pith and Substance is a bit different with respect to theConcurrent List. If a Law covered by an entry in the State List made by the State Legislaturecontains a provision which directly and substantially relates to a matter enumerated in the Concurrent List and is repugnant to the provisions of any existing law with respect to that matter in the Concurrent List, then therepugnant provision in the State List may bevoid unless it can coexist and operate without repugnancy to the provisions of the existing law[6].

Important Supreme Court Judgments on the Doctrine of Pith and Substance

There are hundreds of judgments that have applied this doctrine to ascertain the true nature of a legislation. In the present post, I will discuss some of the prominent judgments of the Supreme Court of India that have resorted to this doctrine.

1. The State of Bombay And Another vs F.N. Balsara[7]- This is the first important judgment of the Supreme Court that took recourse to the Doctrine of Pith and Substance. The court upheld the Doctrine of Pith and Substance and said that it is important to ascertain the true nature and character of a legislation for the purpose of determining the List under which it falls.

2. Mt. Atiqa Begam And Anr. v. Abdul Maghni Khan And Ors.[8] – The court held that in order to decide whether the impugned Act falls under which entry, one has to ascertain the true nature and character of the enactment i.e. its ‘pith and substance’. The court further said that “it is the result of this investigation, not the form alone which the statute may have assumed under the hand of the draughtsman, that will determine within which of the Legislative Lists the legislation falls and for this purpose the legislation must be scrutinized in its entirety”.

3. Zameer Ahmed Latifur Rehman Sheikh  v. State of Maharashtra and Ors.[9] – Pith and Substance has been beautifully explained in this case:

“This doctrine is applied when the legislative competence of the legislature with regard to a particular enactment is challenged with reference to the entries in various lists. If there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it is necessary for the courts to go into and examine the true character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme.

This doctrine is an established principle of law in India recognized not only by this Court, but also by various High Courts. Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List.”

Doctrine of Occupied Field

Doctrine of Occupied Field,there is a very thin of line of difference between doctrine of Repugnancy and Doctrine of Occupied Field. As we know that repugnance arises only if there is an actual conflict between two legislations, one enacted by the State Legislature and the other by Parliament, both of which were competent to do so.

On the other hand, doctrine of Occupied Field simply refers to those legislative entries of State List, which are expressly made ‘subject’ to a corresponding Entry in either the Union List or the Concurrent List.
Doctrine of Occupied Field has nothing to do with the conflict of laws between the state and the centre. It is merely concerned with the ‘existence of legislative power’ whereas repugnance is concerned with the ‘exercise of legislative power’ that is shown to exist.

Doctrine of Occupied Field comes into picture even before the Union Law or the State Law has commenced. Under Article 254, as soon as a Union law receives assent of the President, it is said to be ‘a law made by the Parliament’. Actual commencement of the law is not important for the purpose of attracting doctrine of Occupied Field.

The Curious Case of State of Kerala v. Mar Appraem Kuri

Let us understand this doctrine with the help of a famous case. In the case of State of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr.[1], the Centre enacted the Chit Funds Act (Central Act). For the Law to become operative in any state, the Central Government would have to issue a notification under Section 3 of the Central Act. In the meantime, the State of Kerala enacted a separate act on ‘Chit Funds’ called as Kerala Chitties Act. However, the Central Act did not get notified in Kerala resulting into a situation wherein there was only one Act in force in the State of Kerala i.e. the Kerala Chitties Act. It was contended that the Kerala Chitties Act was repugnant to the un-Notified Central Act. The Supreme Court held that even an un-notified Central law attracts art 254.

The reasoning given by the Supreme Court was that the Central Enactment covered the entire ‘field’ of ‘Chit Funds’ under the Concurrent List. Even though the Central Chit Funds Act was not brought in force in the State of Kerala, it is still a law ‘made’, which is alive as an existing law.

The Court emphasized that Article 254 uses the verb ‘made’ and the ‘making’. Thus, the ‘making’ of a law is complete, even before that law is notified. The court also said that:

“The verb ‘make’ or the verb ‘made’ is equivalent to the expression ‘to legislate’. The importance of this discussion is to show that the Constitution framers have deliberately used the word ‘made’ or ‘make’ in the above Articles.

Our Constitution gives supremacy to the Parliament in the matter of making of the laws or legislating with respect to matters delineated in the three Lists. The principle of supremacy of the Parliament, the distribution of legislative powers, the principle of exhaustive enumeration of matters in the three Lists are all to be seen in the context of making of laws and not in the context of commencement of the laws.”

Thus, the State Legislature is denuded of Legislative Competence as soon as the Parliament, by enacting the Central Act, intended to occupy the entire field of ‘Chit Funds’ under the Concurrent List.

Last Word

1. We can easily see that the line of difference between Repugnance and Occupied Field is very thin. Where Occupied Fields ends, repugnancy starts. Parliament is indeed the supreme Law-Making body under our Constitutional Scheme. Normally, the Courts try to construe a Central Law and a State Law harmoniously. However, when the Parliament tries to occupy the field of the State Law, it is the Central Law that is to prevail.

2. The question of repugnance is separate one. Whether the whole State law or only a particular provision is repugnant to the Central Law is a question that is to be decided after deciding whether the Parliament has really occupied the field of the State Law.

3. Once it is made sure that the Parliament intends to legislate over a particular field on which the State has already legislated, the repugnancy kicks in. To what extent is the repugnancy is a subjective question.

4. The intention of the Parliament can be either express or implied. Express intention can be shown explicitly by enacting a Central Law to repeal a State Law. Implied Intention is slightly more convoluted. Implied Intention can be shown by enacting a Central Law on a subject on which the State has already legislated. By enacting such a Central Legislation, it will be implied that the Parliament intends to occupy a particular field and strip the State Legislature of its power to legislate in this respect.

Doctrine of Territorial Nexus

Territorial Nexus and the Parliament

1. Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation’. Thus a legislation cannot be questioned on the ground that it has extra-territorial operation.

2. It is well-established that the Courts of our country must enforce the law with the machinery available to them; and they are not entitled to question the authority of the Legislature in making a law which is extra-territorial[1].

3. Extra-territorial operation does not invalidate a law. But some nexus with India may still be necessary in some of the cases such as those involving taxation statutes[2].

Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of the State[3]. Now, this leaves it open to scrutiny whether a particular law is really within the competence of the State Legislature enacting it. There are plethora of cases that have stated that the laws which a state is empowered to make must be for the purpose of that State[4]
Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There are two conditions that have been laid down in this respect[5]:

1. The Connection (nexus) must be real and not illusory.

2. The liability sought to be imposed must be pertinent to that connection.

If the above two conditions are satisfied, any further examination of the sufficiency of Nexus cannot be a matter of consideration before the courts[6].

In various cases relating to taxation statutes, the courts have time and again stated that it is not necessary that the sale or purchase should take place within the Territorial Limits of the State. Broadly speaking local activities of buying or selling carried in the State in relation to local goods would be sufficient basis to sustain the taxing power of the State, provided of course, such activities ultimately result in concluded sale or purchase to be taxed[7].

There is also a Presumption of Constitutionality that the Legislature is presumed not to have exceeded its constitutional powers and a construction consistent with those powers is to be put upon the laws enacted by the Legislature.

Extra-Territorial Operation

It is well-established that the Parliament is empowered to make laws with respect to aspects or causes that occur, arise or exist, or maybe expected to do so, within the territory of India and also with respect to extra-territorial aspects or causes that have an impact or nexus with India.

“Such laws would fall within the meaning, purport and ambit of grant of powers of 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 require extra territorial operation. Any laws enacted by the Parliament with respect to extra territorial aspects or causes that have no nexus with India would be ultra vires and would be laws made for a foreign territory.”[8]

This clearly indicates that as long as the law enacted by the Parliament has a nexus with India, even if such laws require extra territorial operation, the laws so enacted cannot be said to constitutionally invalid. It is only when the ‘laws enacted by the Parliament with respect to extra territorial aspects or causes that have no nexus with India’ that such laws ‘would be ultra vires.[9]

What is an acceptable Nexus is again a subjective question. Professor Michael Lang in his book ‘Introduction to the Law of Double Taxation Conventions’ says that “in International law practice, there are no significant limits on the tax sovereignty of states. In designing the domestic personal tax law, the national legislator can even tax situations when, for example, only a "genuine link" exists. It is only when neither the person nor the transaction has any connection with the taxing state that tax cannot be levied”.

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 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[10].

Doctrine of Public Trust requires 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[11], 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.

Doctrine of Delegation

Definition

Before discussing in detail, let us appreciate some of the important definitions that will provide lucidity while understanding the concept of Delegated Legislation.

Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or empowering another to act as an agent or representative’. E.g. Delegation of Contractual Duties.

The Dictionary further defines ‘Doctrine of Delegation’ as:

“The Principle (based on the Separation of Powers Concept) limiting Legislature’s ability to transfer its legislative power to another Governmental Branch, especially the Executive Branch.”

‘Subordinate Legislation’ has been defined as:

“Legislation that derives from any authority other than the Sovereign Power in a state and that depends for its continued existence and validity on some superior or supreme authority.”

The Principle of Delegated Legislation has been defined as[1]:

“This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.”
Usage and Terminology

In India, ‘Rule’ and ‘Order’ are by far the most common names under which Delegated Legislation is permitted.

Section 3 (51) of the General Clauses Act defines ‘Rule’ as “Rule shall mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made under any enactment”.

Thus as suggested by this definition, a ‘regulation’ may be made as a ‘rule’ and then it partakes the character of a rule[2]. However, a certain amount of caution needs to be exercised while using these words. The expression ‘regulation’ should be used to describe the instrument by which the power to make the substantive is exercised and the expression ‘rule’ to describe the instrument by which the power to make law about procedureis exercised. But, this is merely an indicative guideline to keep things clear and unambiguous.

We also use various expressions and words to signify Delegated Legislation such as Order,Directions, Schemes, Circulars, notification,bye-laws and Instructions etc.

Limitations on Delegated Legislation

1. The Legislature cannot delegate Essential Legislative Functions which consist in the determination or choosing of the Legislative Policy and of formally enacting that policy into a binding rule of conduct[3].

Justice Cardozo famously stated that the Legislature cannot delegate ‘uncanalized and uncontrolled power’, the power delegated must not be unconfined and vagrant, but must be canalized within banks that keep it from overflowing[4].

2. Thus what is permitted is the delegation of ancillary or subordinate legislative functions or a power to fill up the details.

3. Whether any particular legislation suffers from Excessive Delegation has to be decided by courts having regard to the subject-matter, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted[5].

4. Essential Legislative Functions include the power to repeal or modify a law and cannot be delegated.

5. In the absence of an express or impliedpower to that effect, Delegated Legislation, be it a rule, bye-law or a notification, cannot haveretrospective operation[6].

6. A power to Tax or levy any fee cannot be inferred from mere generality of the powers conferred by the enabling enactment. Such power of imposition of tax or fee by Delegated Authority must be very specific and there is no scope of implied authority for imposition of such tax or fee[7].

7. One of the important conditions prescribed under Section 23 of the General Clauses Act, 1897 is that the authority having power to make the rules or bye-laws shall, before making them, must publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby.

8. Where the delegating statute itself is ultra vires to the Constitution of India, the rules made under such statute are alsounconstitutional.

9. The power to modify the parent statute is limited to bringing about consequential changes and cannot be exercised to subvert the policy laid down by the legislature. No radical changes in the enacted law is permitted[8].

10. The legislature is the master of policy and if the delegate is free to switch policy it may be usurpation of legislative power itself[9].

11. Delegated Legislation may also be declared invalid on the following grounds:

A. Violation of the Constitution of the India.

B. Violation of the Enabling Act.

C. Violation of Principles of Natural Justicewhen the Statute itself provides of such requirement.

Difference between Conditional Legislation and Delegated Legislation

Conditional Legislation – Such Legislation is usually complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether those conditions are fulfilled.

Thus Conditional Legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of Excessive Delegation.

Delegated Legislation – In such cases, some portion of the Legislative Power of the Legislature is delegated to the outside authority in that, the Legislature, though competent to perform both the Essential and Ancillary Legislative Functions, performs only the former and parts with the latter.

Thus Delegated Legislation confers some legislative power on some legislative authority and is therefore open to attack on the ground of Excessive Delegation.

However, even though Conditional Legislation is distinguishable from Delegated Legislation, still it has been held to be a subset of Delegated Legislation. The Court has observed that “it has content howsoever small and restricted of the law making power itself”[10].

Sub-Delegation

It has been consistently held by the courts that the delegate on whom the power to make subordinate legislation is conferred cannot further delegate that power. This principles finds its origin in the Latin maxim ‘delegatus non potest delegare’ meaning a delegate cannot himself delegate.

Thus when an Act prescribes a particular body to exercise a power, it must be exercised by that body and none else unless the Act byexpress words or necessary implicationpermits such delegation. When a sub-delegation is made, it does not divest the authority making sub-delegation of his statutory authority.

Doctrine of Laches

Introduction and Definition

Black’s Law Dictionary defines ‘laches’ as:

“[French: remissness; slackness] 1. Unreasonable delay in pursuing a right or claim – always an equitable one – in a way that prejudices the party against whom relief is sought – Also termed ‘sleeping on rights’

            “Early in its history, Chancery developed the doctrine that where the plaintiff in equity delayed beyond the period of the statute applicable at law, relief would be refused on the ground of laches even though no specific prejudice to the defendant was shown. Today, in most states, there are statutes of limitations applying to suits inequity. Despite these, however, the doctrine still holds that even if the delay is for a shorter period of time than that of the statute, it may still bar equitable relief if it is unreasonable and prejudicial to the defendant.” John F. O’Connell, Remedies in a Nutshell..”

The abovementioned definition is quite a comprehensive one. It explains the general meaning of ‘laches’. The real difference between laches and limitation is ground of reasonableness. This aspect shall be explained later on in this post as to the difference between laches, limitation and delay. Apart from the time limit set in the Limitation Act of 1963, our Courts have held that laches and delay are an important factor to be considered in exercise of the discretionary relief under Article 226 of the Constitution.
Supreme Court on the Doctrine of Laches

The Hon'ble Supreme Court in Chairman, U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr., Appeal (Civil) 4790 of 2006, has beautifully explained the concept of 'laches'. Many of the case laws cited in this post have also been cited in U.P. Jal Nigam. For the sake of brevity, the facts of U.P. Jal Nigam shall not be reiterated here. Moving further, inRupDiamonds v. UnionofIndia, (1989) 2 SCC 356, it was observed that those people who were sitting on the fence till somebody else took up the matter to the court cannot be given the benefit. Thus when there is an unexplained and inordinate delay, then such a delay may be sufficient to persuade the Court to decline to interfere.  In State of Karnataka v. S.M. Kotrayya,(1996) 6 SCC 267, it was said that if any explanation for condonation of delay is given by the litigant, then the Court must satisfy itself that the explanation given is proper. Similar observations were also given in cases like Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, Union of India v. C.K. Dharagupta, (1997) 3 SCC 395 etc.

Halsbury’s Laws of England

‘Halsbury’s Laws of England’ has explained ‘laches’ as:

“In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.”

Thus we see that ‘laches’ is lack of diligence on the part of a litigant in making a claim or seeking to enforce a legal right. The unreasonable delay in this respect can be treated to be prejudicial to the opposing party.

Difference between Laches and Limitation

‘Laches’ and the limitation period under the Limitation Act may seem similar or alike since both of them seek to ensure that the Litigants bring their claims in a time-bound manner. However, ‘laches’ and limitation are two completely different principles. On the one hand, Limitation Act is merely concerned with the time that has passed i.e. the delay and on the other hand, ‘laches’ is not only concerned with the time that has passed i.e. delay but is also concerned with the reasonableness of that delay. Thus ‘laches’ hits directly at the equitable conduct of the Litigant seeking to enforce his right or claim. We see that there are three components of ‘laches’:

1. A delay in bringing the action.

2. Unreasonableness of delay must exist.

3. The delay must be prejudicial to the Opposing Party.

When Limitation Begins?

As per Section 3 of the Limitation Act, every suit instituted, appeal preferred, and application made after the prescribed period is liable to be dismissed. However, it is not necessary that the period for ‘laches’ must coincide with that of the Limitation. ‘laches’ is a matter of equity and must be dealt with as such. Depending upon facts and circumstances, there might be cases where even though the Limitation Period has not ended, the Litigant may be denied relief if the delay is of such a nature which is prejudicial to the rights of the Defendant and is totally unreasonable. E.g. the Claim is sought to be enforced by the Claimant after the witnesses favourable to the Defendant have died or lost their memories.

Conclusion

Doctrine of Laches has existed since a long time yet it has not lost its relevance. We see that Delay, Laches, Limitation and Acquiescence are overlapping but not inter-changeable terms. The difference between these terms is thin and technical in nature. In our country, Limitation Act is the norm yet laches must not be ignored. In Courts of Writ Jurisdiction like High Courts and the Supreme Court, Limitation Act has limited applicability. ‘Laches’ is a potent tool in the hands of such Courts to prevent the Litigants from abusing the process of the Court and prevent any right accruing in favour of the Claimant that is prejudicial to the rights of the Defendant.

Doctrine of Parens Patriae

Meaning and Definition

‘Parens patriae’ is a Latin term meaning ‘parent of his or her country’.

Black’s Law Dictionary defines ‘parens patriae’ as:

1. The State regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves.

2. A Doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, especially on behalf of someone who is under a legal disability to prosecute the suit. The State ordinarily has no standing to sue on behalf of its citizens, unless a separate, sovereign interest will be served by the suit.

It is stated that parens patriae is the inherent power and authority of a State to provide protection to the person and property of persons non Sui juris[1], such as minor, insane, and incompetent persons.  Today, this term is used to designate the State referring to its sovereign power of guardianship over persons under disability.

In Heller vs. DOE[2], Justice Kennedy observed:

“The State has a legitimate interest under itsparens patriae powers in providing care to its citizens who are unable to care for themselves.”
Also, in the case of State of Kerala v. N.M. Thomas[3], it has been categorically held that the Court is also ‘State’ within the meaning ofArticle 12 of the Constitution of India. Thus, Court can also act as Parens Patriae so as to meet the ends of justice.

Relying on the above-mentioned reasoning, the Supreme Court has stated that “in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight”[4].

The doctrine of ‘Parens Patriae’ has been evolved in common law and is applied in situations where the State must make decisions in order to protect the interests of those persons who are unable to take care of themselves[5].

The Two Tests

There are two tests in relation to this doctrine. These tests help the court to ascertain the course of action that it can adopt depending upon the situation. It is important to remember that these tests are merely guiding principles so as to help the court to reach a logical conclusion.

1. ‘Best Interests’ Test – The ‘Best interests’ test requires the Court to ascertain the course of action which would serve the best interestsof the person in question. It is important to note that the Court's decision should be guided by the interests of the victim aloneand not those of other stakeholders such as guardians or society in general.

2. ‘Substituted Judgment’ Test – The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if he/she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to bementally incompetent.

Doctrine of Parens Patriae and the Constitution of India

Conceptually, the Parens Patriae theory is the obligation of the State to protect and take into custody the rights and privileges of its citizens for discharging its obligations[6].

The Directive Principles as well as the Fundamental Rights enshrined in our Constitution make it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert these rights, the State comes into picture and protects the rights of such Citizens.

The Preamble to our Constitution read with Article 38[7], Article 39[8] and Article 39A[9]makes it amply clear that the State must take up these responsibilities. The State must strive to promote social, economic and political welfare of the people. A harmony needs to be maintained between the Fundamental Rights and the Directive Principles of State Policy by the State so as to effectively discharge its commitments towards the people. While discharging these commitments, the state may even deprive some rights and privileges of the individual victims or their heirs to protect their other important rights in a better manner and secure the ends of social welfare.

Some Scholars believe that Constitution is a Social Contract entered into by the people amongst themselves so as to live cooperatively and harmoniously. The values enshrined in our Constitution are a testimony of the standard of governance and welfare that the people expect from their representatives to maintain and carry out respectively. Doctrine of Parens Patriae is simply one of the links in this long chain. This doctrine makes sure that the voiceless, abandoned and disabled people are ultimately the responsibility of the State and the State must take all the steps to ensure their well-being as they are not in a position to do so.

DOCTRINE OF Implied Powers

Doctrine of Implied Powers v. Casus Omissus

The Doctrine of Implied Powers is neither similar to nor an offshoot of the latin maxim ‘casus omissus’. The Black’s Law Dictionary defines ‘Casus Omissus’ as:

“[Latin “case omitted”] A situation not provided for by a statute or contract, and therefore governed by caselaw or new judge-made law.”

The Latin Maxim governing the situation of‘casus omissus’ is “casus omissus et oblivioni datus dispositioni communis juris relinquitur”which means that “a case omitted and forgotten (not provided for in statute) is left to the disposal of the common law.

Thus the Doctrine of Implied Powers does not talk about cases or situations that have been omitted in the statute rather the Doctrine of Implied Powers is only concerned with situations where an express provision could not be given effect without assuming something. On the other hand, ‘casus omissus’specifically deals with a situation where a situation has been completely left out in the statute and there is nothing express in the statute to cover the said situation. Hence there is a thin yet a visible line of difference between the Doctrine of Implied Powers and ‘casus omissus’.
Let us revisit the celebrated Five Judges Bench Judgment of Bidi, Bidi Leaves & Tobacco Merchants' Association v. State of Bombay, 1962 Supp (1) SCR 381 (hereinafter to be referred to as “Tobacco Merchants”) M. This Judgment discussed the true scope and effect of the Doctrine of Implied Power which serves as a tool for interpretation. The Doctrine of Implied Powers is not to be confused with the interpretative tool ‘casus omissus’. The meaning of ‘casus omissus’ shall be discussed later on in this post.

Definition and Meaning

Before going through the manner in which our Supreme Court has dealt with this doctrine, let us discuss the dictionary meaning of the term ‘implied power’. Black’s Law Dictionary defines ‘implied power’ as:

“A political power that is not enumerated but that nonetheless exists because it is needed to carry out an express power.”

Thus as the name suggests, ‘implied power’ is something that has existence by virtue of express power and is something without which an express power cannot be exercised.

The Tobacco Merchants Case discusses various definitions relating to the Doctrine of Implied Powers. It starts with ‘Craies on Statute Law’ which says that:
“One of the first principles of law with regard to the effect of an enabling act is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view.”

In Michael Fenton and James Fraser v. John Stephen Hampton, (1857-1859) 117 R.R. 32, it was observed that:

“Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment.”

Thus the importance of this Doctrine comes into play in cases where it is observed that the Statute confers a duty upon an Authority and that duty cannot be discharged or that power cannot be exercised unless some ‘other’ power is assumed to exist and in absence of such ‘other’ power, the obligation prescribed under the Statute becomes impossible to comply with. The impossibility must be of such nature that it has no exceptions and the Statute would become a dead letter if that ‘other’ power is not assumed.

Caution in invoking the Doctrine of Implied Powers

The Latin Maxim “Quando lex aliquid concedit concedere videtur et illud sine quo res ipsa ease non potest”, is also relating to the Doctrine of Implied Powers. It means that:

“Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect.”

However, in the Tobacco Merchants Case, the Hon’ble Supreme Court cautioned as to the applicability of the Doctrine of Implied Powers by stating that “the doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement”.

Thus in no other circumstance can this doctrine be invoked. Only and only where there is an impossibility of enforcement to the express provisions of a Statute, the existence of some deemed power can be held to be valid. In all the other circumstances where the express power could be given effect to without assuming any ‘other’ power, the Doctrine of Implied Powers would have no applicability.

Urgency and the serious of the grievance can never be the grounds for invoking the Doctrine of Implied Powers. When the Statute itself is clear and does not suggest any existence of any implied power, then the same could not be done by invoking other grounds or reasons. The Statute must be read as a whole in order to arrive at this conclusion.

Conclusion

The Doctrine of Implied Powers has withstood the test of time and has been cited in a number of Supreme Court Cases. This doctrine is a technical one and would require a certain of ingenuity in order to convince the Court to invoke it. Normally, the Statutes are a self-contained code and it is hardly the case where something is needed to be assumed. In other words, wherever this doctrine is required to be invoked would reflect a poor instance of drafting by the legislators as it is always best to codify as far as possible through express provisions leaving no scope for any ambiguity in interpretation. Time and again, the Courts have said that if literal interpretation is able to give complete meaning and effect to a provision of law, then no other tool or aid of interpretation such as Doctrine of Implied Powers is required.

Doctrine of Eclipse

Doctrine of Eclipse

In the case of Keshavan Madhava Menon v. The State of Bombay[1], the law in question was an existing law at the time when the Constitution came into force. That existing law imposed on the exercise of the right guaranteed to the citizens of India by article 19(1)(g) restrictions which could not be justified as reasonable under clause (6) as it then stood and consequently under article 13(1)[2] that existing law became void “to the extent of such inconsistency”.

The court said that the law became void not in toto or for all purposes or for all times or for all persons but only “to the extent of such inconsistency”, that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens.

This reasoning was also adopted in the case of Bhikaji Narain Dhakras And Others v. The State Of Madhya Pradesh And Another[3]. This case also held that “on and after the commencement of the Constitution, theexisting law, as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether the statute, book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right”
The court also said that article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with fundamental right as it then stood, ineffectual, nugatory and devoid of any legal force or binding effect, only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution. Finally the court said something that we today know of as the crux of Doctrine of Eclipse.

“The true position is that the impugned lawbecame, as it were, eclipsed, for the time being, by the fundamental right.”

We see that such laws are not dead for all purposes. They exist for the purposes of pre-Constitution rights and liabilities and they remain operative, even after the commencement of the Constitution, as against non-citizens. It is only as against the citizens that they remain in a dormant or moribund condition.

Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initiobut become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.

[1] [1961] S.C.R. 288.

[2] Article 13 (1) – All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

[3] AIR 1955 SC 781.

Doctrine of Repungnancy

Introduction

It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of Repugnancy in India. According to Black’s Law Dictionary, Repugnancy could be defined as“an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract)”. Before understanding the Doctrine of Repugnancy, let us first understand a bit about the legislative scheme envisaged in our Constitution.

Article 245 states that Parliament may make laws for whole or any part of India and the Legislature of a State may make laws for whole or any part of the State. It further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Article 246 also talks about Legislative power of the Parliament and the Legislature of a State. It states that:

1. The Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I or the Union List in the Seventh Schedule.

2. The Legislature of any State has exclusive power to make laws for such state with respect to any of the matters enumerated inList II or the State List in the Seventh Schedule.

3. The Parliament and the Legislature of any State have power to make laws with respect to any of the matters enumerated in the List III or Concurrent List in the Seventh Schedule.

4. Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

The Legislative Scheme in our Constitution is both complex and lengthy. In the present post, I will confine myself only to Repugnancy and its niceties. I will not deal not with any other provisions relating to the Legislative Scheme of our Constitution. The only articles that I will be touching in this respect are article 245, article 246 and article 254.

Supreme Court’s Interpretation of Doctrine of Repugnancy

Article 254[1] has been beautifully summarized by the Supreme Court in M. Karunanidhi v. Union of India[2]. The court said that:

“1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable,the Central Act will prevail and the State Act will become void in view of the repugnancy.

2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List,the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.

3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List, the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.

4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only.

Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.

Now, the conditions which must be satisfied before any repugnancy could arise are as follows:

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.”

Thereafter, the court laid down following propositions in this respect:

“1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.”

Further in the case of Govt. of A.P. v. J.B. Educational Society[3], the court held that:

“1. There is no doubt that both Parliament and the State Legislature are supreme in their respective assigned fields. It is the duty of the court to interpret the legislations made by Parliament and the State Legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non obstante clause in clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the exclusive power of the State Legislature to make a law with respect to a matter enumerated in the State List.

2. With respect to matters enumerated in List III (Concurrent List), both Parliament and the State Legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State Legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.”

The Court also said that:

1. Where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1).

2. Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation.

In the case of National Engg. Industries Ltd. v. Shri Kishan Bhageria[4], it was held that “the best test of repugnancy is that if one prevails, the other cannot prevail”. All the above mentioned cases have been upheld by the Supreme Court in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra[5].

Thus, we see that Doctrine of Repugnancy is firmly entrenched in our constitutional scheme and is here to stay for a long time to come. In the subsequent posts, I will try to discuss doctrines like Pith and Substance, Colourable Legislation, Legislative Competence, Doctrine of Eclipse etc.

[1] Article 254 – (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

[2] (1979) 3 SCC 431.

[3] (2005) 3 SCC 212.

[4] (1988) Supp. SCC 82.

[5] CIVIL APPEAL NO. 1975 OF 2008.

Doctrine of Waiver

Doctrine of Waiver

Definition

The Doctrine of Waiver seems to be based on the premise that a person is his best judge and that he has the liberty to waive the enjoyment of such rights as are conferred on him by the state.

Black’s Law Dictionary defines Waiver as “the voluntary relinquishment or abandonment (express or implied) of a legal right or advantage”. It also says that the party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it.

Various Legal luminaries and scholars have also tried to explain the Doctrine of Waiver.

1. William R. Anson[1] – The term waiver is one of those words of indefinite concoction in which our legal literature abounds; like a cloak, it covers a multitude of sins.

2. Restatement (Second) of Contracts[2] – Waiver is often inexactly defined as the ‘voluntary relinquishment of a known right’. When the waiver is reinforced by reliance, enforcement is often to rest on ‘estoppel’. Since the more common definition of estoppel is limited to reliance on a misrepresentation of an existing fact, reliance on a waiver or promise as to the future is sometimes said to create a ‘promissory estoppel’. The common definition of waiver may lead to the incorrect inference that the promisor must know his legal rights and must intend the legal effect of the promise. But it is sufficient if he has reason to know the essential facts.
3.  Keeton – Waiver is often asserted as the justification for a decision when it is not appropriate to the circumstances.

4.  Farnsworth on Contracts – Although it has often been said that a waiver is ‘the intention relinquishment of a known right’, this is a misleading definition. What is involved is not the relinquishment of a right and the termination of the reciprocal duty but the excuse of the non-occurrence of or delay in the occurrence of a condition of a duty.

American Conception of Doctrine of Waiver

In the famous case of Miranda v. Arizona[3], the Supreme Court laid down certain requirements known as the Miranda Rights. These requirements include stipulations such as the right to remain silent and that they may have an attorney present questioning.

However, in USA, a Criminal Defendant may waive the right to remain silent as well as the other Miranda Rights and make a confession, but the Prosecution must demonstrate to the court that the ‘waiver’ was the product of a free and deliberate choice rather than a decision based on intimidation, coercion, force or deception. It must also be proved that the defendant was fully aware of the Miranda rights being abandoned and the consequences thereof.

Doctrine of Wavier in India

There have been plethora of cases that have discussed the doctrine of Waiver. Some of the important ones are.

1. Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors.[4]– In this case, the court said that everyone has a right to waive an advantage or protection which seeks to give him/her. For e.g. In case of a Tenant-Owner dispute, if a notice is issued and no representation is made by either the owner, tenant or a sub-tenant, it would amount to waiver of the opportunity and such person cannot be permitted to turn around at a later stage.

2. Krishna Bahadur v. M/s. Purna Theatre & Ors.[5] – This case made a differentiation between the principle of Estoppel and the principle of Waiver. The court said that “the difference between the two is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration”.

The court also held that:

“A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.”

3. Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association & Ors.[6]– This case said that even though Waiver and Estoppel are two different concepts, still the essence of a Waiver is an estoppel and without Estoppel, there cannot be any Waiver. The court also said “Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case”.

Doctrine of Waiver and Fundamental Rights in India

Fundamental Rights are the most special of the rights in Indian Context. These rights though sacrosanct are not absolute in nature. Our Constitution imposes various imposes various reasonable restrictions upon the exercise of fundamental rights.

As stated above, we saw that a right can be waived subject to the condition that no public interest is involved therein. However, the scope of the Doctrine of Waiver with respect to Fundamental rights is a bit different. It was discussed in the case of Basheshr Nath v. Income Tax commissioner[7]. The Court said that:

“Without finally expressing an opinion on this question we are not for the moment convinced that this Doctrine has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty, of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the ‘doctrine of waiver’ can have no application to provisions of law which have been enacted as a matter of Constitutional policy. Reference to some of the articles, inter alia, Articles 15(1) 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'You can discriminate', or get convicted by waiving the protection given under Articles 20 and 21.”

We find that the primary objective of Fundamental Rights is based on Public Policy. Thus, individuals are not allowed to waive off such fundamental rights. Also, it is the constitutional mandate of the Courts to see that Fundamental Rights are enforced and guaranteed even if one might wish to waive them.

[1] Principles of the Law of Contract.

[2] 84 cmt. b (1979).

[3] 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[4] (1992) Supp. 1 SCC 5.

[5] AIR 2004 SC 4282.

[6] AIR 1988 SC 233.

[7] AIR 1959 SC 149.

Doctrine of colorable legislation and Fraud on Constitution

Doctrine of Colorable Legislation like any other constitutional law doctrine is a tool devised and applied by the Supreme Court of India to interpret various Constitutional Provisions. It is a guiding principle of immense utility while construing provisions relating to legislative competence.

Before knowing what this doctrine is and how it is applied in India, let us first understand the genesis of Doctrine of Colorable Legislation.

Doctrine of Colorable Legislation is built upon the founding stones of the Doctrine Of Separation of Power. Separation of Power Mandates that a balance of power is to be struck between the different components of the State i.e. between the Legislature, the Executive and the Judiciary. The Primary Function of the legislature is to make laws.Whenever, Legislature tries to shift this balance of power towards itself then the Doctrine of Colorable Legislation is attracted to take care of Legislative Accountability.

Definition

Black’s Law Dictionary defines ‘Colorable’ as:
1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.

3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’.

The literal meaning of Colorable Legislation is that under the ‘color’ or ‘guise’ of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.

This Doctrine also traces its origin to a Latin Maxim:

“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”

This maxim implies that “when anything is prohibited directly, it is also prohibited indirectly”. In common parlance, it is meant to be understood as “Whatever legislature can’t do directly, it can’t do indirectly”.

In our Constitution, this 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 List I for the Union, List II for the States and List III forboth, as mentioned in the Seventh Schedule.

This doctrine 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.

Supreme Court on Colorable Legislation

One of the most cogent and lucid explanations relating to this doctrine was given in the case of K.C. Gajapati Narayana Deo And Other v. The State Of Orissa[1]:

“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers.

Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression ‘Colorable Legislation’ has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise.”

This Doctrine is also called as “Fraud on the Constitution”. The failure to comply with a Constitutional condition for the exercise of legislative power may be overt or it may be covert. When it is overt, we say the law is obviously bad for non- compliance with the requirements of the Constitution, that is to say, the law is ultra vires. When, however, the non-compliance is covert, we say that it is a ‘fraud on the Constitution’, the fraud complained of being that the Legislature pretends to act within its power while in fact it is not so doing. Therefore, the charge of ‘fraud on the Constitution’ is, on ultimate analysis, nothing but a picturesque and epigrammatic way of expressing the idea of non-compliance with the terms of the Constitution[2].

Limitations on the Application of Doctrine of Colorable Legislation

1. The doctrine has no application where the powers of a Legislature are not fettered by any Constitutional limitation.

2. The doctrine is also not applicable to Subordinate Legislation.

3. The doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the, question of competency of a particular legislature to enact a particular law.

If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all.Whether a statute is constitutional or not is thus always a question of power[3].

4. A logical corollary of the above-mentioned point is that the Legislature does not act onExtraneous Considerations[4]. There is always a Presumption of Constitutionality in favour of the Statute. The principle of Presumption of Constitutionality was succinctly enunciated by a Constitutional Bench in Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.[5]:

“That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”

There is a very famous rule of interpretation as well that explains why the courts strongly lean against a construction which reduces the statute to a futility. The Latin Maxim “construction ut res magis valeat quam pereat” implies that a statute or any enacting provision therein must be so construed as to make it effective and operative. The courts prefer construction which keeps the statute within the competence of the legislature[6].

5. When a Legislature has the Power to make Law with respect to a particular subject, it also has all the ancillary and incidental power to make that law an effective one.[7]

6. As already discussed above that the transgression of Constitutional Power by Legislature may be patent, manifest or direct, but may also be disguised, covert and indirectand it is only to this latter class of cases that the expression “Colorable Legislation” is being applied(8)

[1] AIR 1953 SC 375.

[2] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.

[3] K.C. Gajapati Narayana Deo And Other v. The State Of Orissa, AIR 1953 SC 375.

[4] Mohan Lal Tripathi v. District Magistrate, Rae Bareilly & Others, AIR 1993 SC 2042.

[5] AIR 1958 SC 538.

[6] CIT v. Teja Singh, AIR 1959 SC 352.

[7] I.N. Saksena v. The State of Madhya Pradesh, AIR 1976 SC 2650, [1976] 3 SCR 237.

[8] The State Of Bihar v. Kameshwar Singh, 1952 1 SCR 889.