“The jurisprudential basis for the ‘rule of widest construction’ is the hallowed belief that a Constitution is drafted with an eye on future providing a continuing framework for exercise of governmental power. Therefore, it must be elastic enough to meet new social, political and historical realities often unimagined by the framers of the Constitution.
Chief Justice Marshall’s celebrated statement in McCulloch, 17 US 316 (1819) that ‘we must never forget that it is a Constitution we are expounding’ is the starting point. It was a statement made in the context of the interpretation of Article I of the US Constitution which declares the authority of ‘the Congress’” to perform various functions enumerated in Sub-sections (1) to (17) of Section 8 and under Sub-section (18) ‘to make all laws necessary and proper to carrying into execution of the powers vested in the Congress by the preceding 17 Sub-sections’.
The question that arose for consideration in McCulloch case was whether ‘the Congress’ could establish a bank by its legislation. None of the ‘enumerated powers’ in Article 1, Section 8 contain any mention of the power to establish a bank or create a corporation. It was argued that (i) Congress could only legislate w.r.t. the matter expressly enumerated in Section 8 and make only those laws which are ‘indispensable and without which the power would be nugatory’, (ii) that the word ‘necessary’ occurring in Sub-section (18) ‘excludes the choice of means and leaves to Congress in each case that only which is most direct and single’.
Repelling the above submissions Marshall declared that to provide in the Constitution minute details of every aspect of governance would make the Constitution a very prolix document similar to a legal code. By the nature of the instrument it only contains ‘the great outlines of the power and important objects sought to be achieved’. The submission that the expression “necessary” in Sub-section (18) has a limited import was rejected.
About 100 years later the Privy Council in James v. Commonwealth of Australia, (1936) AC 578 observed that a ‘Constitution must not be construed in any narrow and pedantic sense’ (See, Lord Wright at Page 614).
Relying on the above-mentioned celebrated statements, in the case of Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, (1939) 1 FCR 18, Gwyer, CJ observed that ‘I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors’.
The authority to make law flows not only from an express grant of power by the Constitution to a legislative body but also by virtue of implications flowing from the context of the Constitution is well settled by the various decisions of the Supreme Court of America in the context of American Constitution. A principle which is too well settled in all the jurisdictions where a written Constitution exists. The US Supreme Court also recognized that the Congress would have the authority to legislate with reference to certain matters because of the fact that such authority is inherent in the nature of the sovereignty. The doctrine of inherent powers was propounded by Justice Sutherland in United States v. Curtiss-Wright Export Corporation, 81 L. Ed. 255. in the context of the role of the American Government in handling foreign affairs and the limitations thereon.
In substance, the power to make the legislation flows from various sources: (1) express text of the Constitution; (2) by implication from the scheme of the Constitution; and (3) as an incident of sovereignty.
On the question of the authority of the legislatures (Federal and State) we are of the opinion that analysis adopted by the US Supreme Court is equally good for our Constitution with appropriate modifications, because there are areas where the two Constitutions differ substantially.
The principle that the power to legislate under the Indian Constitution can flow from various sources is recognized by this Court in Synthetics and Chemicals Ltd., (1990) 1 SCC 109 at Paragraph 67. The power to legislate does not flow from a single Article of the Constitution [See, Jilubhai, 1995 Supp. (1) SCC 596 at Paragraph 7]….
[However] it must be remembered that this Court has repeatedly held that the Entries in the various Lists of the Seventh Schedule are not sources of the legislative power but are only indicative of the fields w.r.t. which the appropriate legislature is competent to legislate.
A great deal of examination of the scheme of the entire Constitution is essential while interpreting the scope of each of the Entries contained in the three Lists of the Seventh Schedule and no Rule which has a universal application with regard to the interpretation of all Entries in the 7th Schedule can be postulated. The statement of Chief Justice Gwyer that a broad and liberal spirit should inspire those whose duty is to interpret the Constitution and the legislative entries should not be read in a narrow or pedantic sense, cannot be understood as a sutra valid for all times and in all circumstances. We have already noticed that this Court on more than one occasion cautioned about the perils of placing a construction on the expressions contained in the various Entries in the three Lists of Seventh Schedule as taking within their sweep, matters that have no rational connection with the subject matter of the Entry.
The doctrine of ‘widest construction’ propounded by Marshall was in the context of the substantive provisions of the Constitution which are the sources of power to legislate and stipulate the areas with respect to which ‘the Congress’ shall have the ‘legislative power’ but not in the context of something like an entry in the 7th Schedule of our Constitution which is not a source of power but only indicative of the field of legislation. Though words and expressions employed in the Constitution must receive widest possible construction, we believe that the principle must be applied with some degree of caution when it comes to the examination of the amplitude of the legislative Entries. There must be some distinction between a provision of the Constitution which confers power to legislate (source of power) and an Entry in one of the 3 lists of the 7th Schedule which are not sources of power but are only indicative of the fields of legislation. Any construction which would run counter to the scheme of the Constitution relevant in the context must be avoided.”
– Hon’ble Justice J. Chelameswar, Bimolangshu Roy v. State of Assam, [Transferred Case (Civil) No. 169 of 2006].