Defined: The Doctrine of the Territorial Nexus (Article 245) – LexForti

This article explains the doctrine of territorial cohesion under the lens of Article 245 of the Indian Constitution; written by Vartika Shrivastava

introduction

One of the most important and important features of federalism is the distribution of power. The aim of a federal state formed in this way is the division of powers and powers between the state government and the governments of the respective federal states.

The key aspect of federalism is to distribute the strength of government among more independent authorities. A constitution that is federal in nature establishes the concept of dual politics, according to which the Union is at the center and the states are on a periphery, and each of them is endowed with powers that are sovereign in nature and exercised only in the respective one fields assigned to them by the constitution can be used.

The basic concept of the federation is that the legislative executive and the financial authority are divided in terms of power between the center and the state, not by the power of a law that has been passed, but by the constitution itself.

In terms of legislative relations, the Constitution of India has 2 for the distribution of legislative powers, one relating to the territory and the second relating to the subject matter concerned.

Territorial jurisdiction

Under Article 245 of the Indian Constitution –

“Scope of laws passed by parliament and state legislatures.

1) Subject to the provisions of this Constitution, Parliament may make laws for all or part of Indian territory, and the legislation of a state may make laws for all or part of the state

2) No law passed by parliament is invalid because it would carry out an extraterritorial activity. “[1]

Regarding the area in question, Article 245 states that, subject to the provisions of the Constitution, Parliament is entitled to legislate for all or part of Indian territory. Section 2 states that if a law has been passed by Parliament, it will not be deemed invalid as it may be conducting extraterritorial operations and taking effect outside of Indian territory.

Therefore, under Article 245 (2), no questions can be asked about the validity of the law when Parliament has passed a law relating to extraterritorial operations. Therefore, the validity of any legislation cannot be called into question, and in such a case the courts have an obligation to enforce the laws that have been made in relation to extraterritorial operations.

“In the case of a sovereign legislature, the question of the extraterritoriality of an enactment cannot be raised in a municipal court as a reason to question its validity. The legislation may violate the rules of international law and may not be recognized by foreign courts as there would be practical difficulties in enforcing it, but these are the policy issues that national courts deal with. “[2]

Territorial connection theory

The legislative powers of the parliament as well as the legislation of the state are subject to the provisions of the constitution, that is, the scheme of separation of powers, fundamental rights and other provisions of the constitution.

In a case by Wallace vs. Income Tax Commissioner, Bombay[3]There was a company registered in England that was a partner in a company based in India. Indian income tax authorities attempted to tax the company’s entire income. In this case, the Privy Council applied the territorial nexus doctrine and it was found that the tax levied was valid as it was said that much of the revenue came from British India and that this was sufficient reason to establish a nexus.

The legislature of a state enacts laws for all or part of the state under Article 245, paragraph 1, which means that the state laws would be annulled if they had an extra-territorial activity. However, there is one exception to this general rule. If a state law that has an extraterritorial operation has sufficient connection between the object and the state, it would be considered valid.

The constitution gives the state the power to enact laws that fall within its territorial jurisdiction. The state parliament was therefore authorized to enact laws for its own purposes.

The doctrine of the territorial nexus would be applicable if the two stated conditions were met.

These 2 conditions are –

1) The nexus must be legitimate in nature

2) The liability must relate to the territorial connection.

The above two conditions are enough to determine whether or not a relationship is legitimate. (Doctrine of the Territorial Nexus) Therefore, Parliament has the power to pass laws that fall within its territorial jurisdiction and also serve extraterritorial purposes, but necessarily have a legitimate nexus with India.

The loss or legislation relating to this matter falls within the purview of Parliament and such loss cannot be called into question for validity. However, if Parliament passed a law that could not create a nexus with India, it would be called Ultra Vires.

The powers of Parliament are not absolute and therefore the laws passed by Parliament on extraterritorial operations are essentially designed to operate outside of India’s geographic limits. The state legislature does not have the power to legislate for such extraterritorial operations, but this restriction is subject to the exception of the territorial nexus.

If it is demonstrated that there is sufficient connection with the property and that the laws enacted by the state legislature take effect outside the territorial limits of the state, the following circumstances are necessary in order to assert jurisdiction of the territorial nexus:

1) If there is an extraterritorial operation in a state

2) When there is a legitimate relationship between the object and the state and there should be clarity that the object is outside the territorial boundaries of the state but that there should be a territorial connection with it.

One such example is in the case of State of Bombay v RMDC[4]. The facts are that the state of Bombay imposed a certain tax on the lottery as well as on prize competitions. This tax was extended to the newspapers that were printed and published in Bangalore but were also widely distributed in the state of Bombay. The respondent conducted the prize competitions through the medium of this paper.

The respondent turned to the Supreme Court and asked whether the tax could be levied on a person residing outside the territorial limits of the state. The court found that there was sufficient territorial nexus to allow the state of Bombay to tax the newspaper.

And if there is a sufficient connection between the people who are to be charged and the state who want to tax them, the tax law is respected. Therefore, the law was empowered to tax the respondent on the income that the company generated from this price competition.

The powers of the legislature under Article 245 to enact laws are an absolute power that is subject only to its legislative competence and the other constitutional restrictions. Hence, the power required to make law includes the power to apply it both prospectively and retrospectively.

“The law passed by parliament or any of the state legislatures cannot be declared unconstitutional. The coat should undoubtedly be able to assert unequivocally that the violation of the constitutional provision was so blatant that the contested statute cannot. “[5]

Conclusion

It can be concluded that the powers distributed between the center and the state are a key feature of federalism and that these powers are divided by the Constitution itself. The constitution provides for a dual political feature between the Union and the states, and Parliament has the power to legislate for all or part of India. It also has the power to legislate for extraterritorial operations, but for a state legislature does not have the power to legislate for extraterritorial operations.

However, there is one exception that allows such legislators to enact laws for purposes that are extraterritorial when a link is established between the object and the state. This means that the object is outside the territorial limits of the state, but still has a connection that is territorial with the state, it would be valid. This doctrine of territorial cohesion allows the law to operate to the territorial limits of a nation.

FAQs

What is the Doctrine of Aversion?

Reluctance arises when the provisions of two laws are so inconsistent and incompatible that it is impossible to do one without disobeying the other. If such a conflict arises between central and state legislation in the Indian context, the central law takes precedence.

What is the marrow and substance rule?

Pulp and substance is a legal doctrine in the Canadian constitutional interpretation, with which it is determined with which head of power a certain law falls.

[1] Article 245 in the Constitution of India 1949

[2] AH Wadia v Income Tax Commissioner, Bombay (AIR 1949 FC 18)

[3] AIR 1948 PC 118

[4] AIR 1957 SC 699

[5] Madhya Pradesh State v Rakesh Kohli (AIR 2012 SC 2351)

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