¹ (1961) 1 S.C.R. 809.

² A.I.R. 1962 S.C. 1406.

³ M. P. V. Sundararamier v. The State of Andhra Pradesh, 1958 S.C.R. 1422 at p. 1478.Google Scholar

⁴ The student should bear in mind the different senses of the word “state.” Before independence it was used chiefly to denote the Native or Princely States (subsequently termed Indian States or Part B States), to which the then Provinces of India were contrasted. After independence it refers to the constituent parts of the Union of India, which correspond in status with the abolished Provinces. [Ed.]

⁵ For the interpretation put upon s. 297 by the Federal Court see p. 74, post, note 77.

⁶ The first paragraph of s. 92 “reads more like a slogan than as part of a legal document, and as a slogan it was defended against an attempt in 1937 to alter the Constitution…. No section in the Constitution has given rise to so many and such persistent differences of judicial opinion. No other section is so obviously in need of alteration”: Nicholas, The Australian Constitution, 3rd ed. at p. 250.

⁷ Art. 306 was repealed by the Constitution (Seventh Amendment) Act, 1956.

⁸ The chief argument of the judgment is that Part XII (which broadly speaking contains provisions relating to the finances of the Union and of the states and their inter-relation and adjustments), like Part XIII, is also not subject to the other provisions of the Constitution. Therefore, both Parts are meant to be self-contained in their respective fields. Since Part XII contains art. 265, which prohibits the levy or collection of a tax without the authority of law, all that is required is a law authorising taxation. The judgment, however, over-looks the fact that art. 265 must be read with art. 245, as pointed out by Gajendragadkar J. in the same case. See p. 58, post. Whether on an interpretation of art. 301 a tax is included in art. 301 is a different matter.

⁹ (1961) 1 S.C.R. 809 at p. 843.

¹⁰ Ibid. p. 843.

¹¹ Ibid. pp. 843–844.

¹² Ibid. p. 845.

¹³ This argument had been urged by the Attorney-General who appeared for the Union of India (which had intervened) and the State of Assam.

¹⁴ Ibid. p. 846.

¹⁵ Ibid. p. 852. The words “the broad and unambiguous provisions of art. 301” in the above passage may be contrasted with the description of those words as “very wide, and in a sense vague and indefinite” at p. 859 in dealing with the interpretation of art. 301; and with the description of art. 301 as “a constitutional provision which is none-too-clear or lucid” at p. 868 in justifying the discussion of Australian cases on s. 92 of the Australian Constitution.

¹⁶ Ibid. p. 853.

¹⁷ Ibid. p. 853.

¹⁸ “It is obvious that the reference to the Legislature of the State in this clause cannot be reconciled with the non obstante clause; but the object of including the Legislature of a State appears to be to emphasise that like Parliament even the Legislature of a State cannot give any preference or make any discrimination”: ibid, p. 854.

¹⁹ “There is some force in this contention; but on the whole we are not prepared to hold that the reference to the said entries should govern the construction of art. 301. The setting in which the said entries are referred to would of course determine the scope and extent of the prohibition prescribed by art. 303 (1); but that cannot be pressed into service in determining the scope of art. 301 itself. It is significant that art. 303 (1) does not refer to intercourse and in that sense intercourse is outside its sphere. It is likely that having authorised Parliament to impose restrictions by art. 302 it was thought expedient to prohibit expressly the said power of imposing restrictions from being used for the purpose of giving any preference in so far as the relevant entries are concerned. It may also be that the primary object of confining the operation of art. 303 (1) to the said entries was to introduce a corresponding limitation on the power of Parliament to discriminate under art. 302”: ibid. p. 855.

²⁰ Ibid. p. 856.

²¹ Ibid. p. 857.

²² Ibid. p. 858.

²³ Ibid. pp. 858–859.

²⁴ Ibid. p. 860.

²⁵ Ibid. p. 863.

²⁶ Art. 255 provides in effect that if the previous sanction required by the Constitution is not given subsequent assent by the authority whose previous sanction was required is sufficient.

²⁷ 1. James v. The Commonwealth of Australia [1936] A.C. 578 at p. 613Google Scholar showed that the imposition of tolls, railway rates and so forth might impede the freedom of trade contemplated by s. 92, “which in other words supports our conclusion that a tax may amount to a restriction under art. 301.” (Ibid. p. 869.)

2. Commonwealth of Australia v. Bank of New South Wales [1950] A.C. 235 at p. 313.Google Scholar The test laid down by Lord Porter at p. 313 “justifies the conclusion we have reached about the scope and effect of art. 301.” (Ibid. p. 870.)

²⁸ (1961) 1 S.C.R. 809 at p. 874.

²⁹ In the opinion of the present writer the reference to an entirely new bench constitutes a very healthy precedent. If judgments are to be reconsidered it is desirable that fresh minds should be brought to bear on that task.

³⁰ See p. 61, ante.

³¹ A.I.R. 1962 S.C. 1406 at p. 1424, para. 17; Subba Rao J. concurred.

³² See p. 78, post, note. 92.

³³ A.I.R. 1962 S.C. at pp. 1415, 1416.

³⁴ Ibid. pp. 1415, 1416. In this context Das J. observed that one of the complaints made before them against the Atiabari judgments was that in interpreting Fart XIII sufficient importance had not been given to the power of the states to raise revenues by taxes under the legislative heads entrusted to them by the Constitution. (Ibid. p. 1416.)

³⁵ A.I.R. 1962 S.C. at p. 1416. The above passage appears to have adopted the views of Sir Alladi Erishnaswami Ayyar, an eminent lawyer and a member of the drafting committee: see the Constituent Assembly Debates, Vol. IX, p. 1141.

³⁶ A.I.R. 1962 S.C. at p. 1419.

³⁷ Ibid.

³⁸ Ibid.

³⁹ Ibid. p. 1420. The restrictions involved in this qualification are irrespective of the restrictions imposed by the other articles of Part XIII. (Ibid., p. 1420.)

⁴⁰ Ibid. p. 1420.

⁴¹ Ibid. p. 1422.

⁴² See p. 62, ante.

⁴³ A.I.R. 1962 S.C. 1406.

⁴⁴ At a first glance it might appear that he was merely stating the interpretation given by Shah J. but a comparison of the two judgments shows that this is not so.

⁴⁵ See p. 78, and note 93, post.

⁴⁶ The majority judgments show that regulatory laws, such as those prescribing the rule of the road, and compensatory taxes, such as taxes exacted for the maintenance of roads, the building of bridges and the like are outside art. 301 and to that extent the law is settled. But beyond that lies the great unknown.

⁴⁷ Att.-Gen. for Ontario v. Att.-Gen. for the Dominion [1896] A.C. 348 at pp. 360, 361.

⁴⁸ “It is therefore clear that the court should construe the language of art. 13 (1) according to established rules of interpretation and arrive at its true meaning uninfluenced by the spirit of the Constitution”: per Das J, S. R.., delivering the majority judgment in Keshavan Madhavan Menon v. The State of Bombay (1951) S.C.R. 228 at p. 233.Google Scholar

⁴⁹ See Halsbury, Vol. 36, 3rd ed., pp. 388, 392.

⁵⁰ It was settled by The Queen v. Burah (1878) 3 App.Cas. 889 that the Indian legislatures, acting within the limits of their powers, were in no sense delegates of the British Parliament but had, and were intended to have, powers of legislation, as large, and of the same nature as Parliament itself. Ibid. p. 904.

⁵¹ Amalgamated Society of Engineers v. The Adelaide Steamship Co. Ltd. & others, 28 C.L.R. 129 at p. 145.

⁵² See pp. 57, 58, ante.

⁵³ “See the observations of Subba Rao J. in A.I.R. 1962 S.C. at p. 1426, para. 26; and of Hidayatullah J. at pp. 1450, 1451, para. 96.

⁵⁴ See p. 57, ante.

⁵⁵ See p. 58, ante.

⁵⁶ “It may be that economic life is one, but in federal countries this fact is not recognised so far as the allocation of governmental powers is concerned. The legal and political pluralism of federations is imposed upon the alleged unity of economic affairs”: Wheare, Federal Government, 3rd ed., p. 134.

⁵⁷ Op. cit., p. 278.

⁵⁸ Entry 20 in List III of Sched. VII to the Constitution reads “Economic and Social planning.”

⁵⁹ “… The States' power contained in art. 304 (b) is made expressly free from the prohibition contained in art. 303 (1) because the opening words of art. 304 contain a non obstante clause both to art. 301 and art. 303”: per Das, J. in the Rajasthan Case, A.I.R. 1962 S.C. at p. 1418Google Scholar; the observations of Subba Rao J. are to the same effect. See Ibid. p. 1434.

⁶⁰ It need hardly be said that a fundamental right subject to the provisions of any law made by Parliament can hardly be called fundamental.

⁶¹ Constituent Assembly Debates, Vol. IX, p. 1124.

⁶² Draft art. 245 corresponds to art. 307 of the Constitution but it is not material to the present discussion as it confers a power to appoint an authority to carry out the purposes of the Part.

⁶³ Constituent Assembly Debates, Vol. IX, pp. 1125, 1128, 1138; 1143 (amendment rejected). That the amendment was moved and rejected is important because “… while it is not proper to take into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted”: per Kania, C.J. in Gopalan's Case, 1950 S.C.R. 88 at p. 110.Google Scholar To the same effect, Fazal Ali J. at p. 158 and Mukherjea J. at p. 254.

⁶⁴ Sir Alladi Krishnaswami Ayyar in opposing the amendment, said: “The next comment was there should be no reference to the power in relation to trade and commerce. It was advisedly put in for the reason that there might be very many powers which may be exercised by the different states in regard to supply of goods, the internal or indigenous industry, which may trench upon trade and commerce. It is not the intention to interfere with these powers of the Provinces or States”: Constituent Assembly Debates, Vol. IX, pp. 1141, 1142.

⁶⁵ As, for example, is it permissible to refer to the speech of a member of the Drafting Committee? If it is, can one part be referred to without referring to another relevant part? If it cannot be referred to can it become a part of the judicial verdict as furnishing an historical background? See notes 35 and 64, ante.

⁶⁶ (1961) 1 S.C.R. at pp. 867, 868.

⁶⁷ Ibid. p. 869, see note 27, ante.

⁶⁸ Such a discussion would require a comparison between the Scheme of the Constitution of India and the Constitution of Australia, with particular reference to the distribution of legislative powers.

⁶⁹ [1936] A.C. 578.

⁷⁰ Re The Central Provinces and Berar Act, No. XIV of 1938 (1939) F.C.R. 18 at p. 43.Google Scholar

⁷¹ “1958 S.C.R. 1422 at p. 1478; see p. 54, ante.

⁷² 1958 S.C.R. at p. 1478. The following example may be given from the Union List: Entry 20. Federal Railways. Entry 58. Taxes on Railway fares and freights. Art. 248 (2) of the Constitution of India emphasises this point by expressly providing that the residuary powers of legislation include the power of making any law imposing a tax not mentioned in the Concurrent or the State List.

⁷³ See p. 55, ante.

⁷⁴ “Trade and manufacture” is used in this discussion as a compendious description of entries 27 and 29.

⁷⁵ Entry 30 (Concurrent List): The prevention of the extension from one unit to another of infectious or contagious diseases or pests affecting men, animals or plants.

⁷⁶ Entry 31 (Provincial List): Intoxicating liquors and narcotic drugs, that is to say…

⁷⁷ When a “prohibition” law was challenged as violative of s. 297 (1) (a) in Bhola Prasad v. The King Emperor, 1942Google Scholar P.C.R. 18, Gwyer C.J. held that it was plain beyond words that the entries referred to in s. 297 (1) (a) were entries 27 and 29 of the Provincial List. If therefore a Provincial legislature could point to any other entry, such as entry 31, to justify its prohibition s. 297 (1) (a) could have no application.

⁷⁸ Art. 246 is practically a reproduction of s. 100 of the Act. In Subrahmanyan Chettiar v. Muttuswami Goundan, 1940 F.C.R. 188 at pp. 200, 201Google Scholar Gwyer C.J. observed that in drafting the Indian Act, the British Parliament had in mind the provisions of the British North America Act, 1867, and that as interpreted by the Judicial Committee s. 91 and s. 92 of the Br. North America Act furnished a complete analogue to s. 100 of the Indian Act, and the principles laid down by the Judicial Committee in a long series of decisions may be accepted as a guide for interpreting similar provisions in the Indian Act.

⁷⁹ See note 77.

⁸⁰ Sundararamier's Case, 1958 S.C.R. 1422 at p. 1484.

⁸¹ For the arguments of counsel for the Madura Mills, which Venkatarama Aiyer J. described as striking a new path see Ibid. p. 1430. The reporting of argument in the Supreme Court Reports is not particularly full, but the judgment sets out the argument fully and lucidly at pp. 1477, 1478. In support of the argument Australian and United States cases on “the commerce clause” had been cited Ibid. p. 1430.

⁸² Ibid. p. 1484.

⁸³ See pp. 73, 74, ante.

⁸⁴ See art. 304 (b) and the words “with or within the state” in it.

⁸⁵ The words “trade, commerce and intercourse” are taken from s. 92 of the Australian Constitution, which in its turn took them from American decisions on the “commerce clause.” In interpreting that clause in Gibbons v. Ogden. 6 L.Ed. 1 at p. 186, Marshall C.J. in his celebrated judgment said, “Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations in ali its branches.”

⁸⁶ Assuming “intercourse” to be a head of power distinct from “trade and commerce,” Parliament would have power to legislate on “intercourse” under art. 248 and entry 97, List I.

⁸⁷ Salmon v. Duncombe (1886) 11 App.Cas. 627; Maxwell, Interpretation of Statutes, 11th ed., p. 221. The “inappropriateness” of the reference to art. 302 as regards State Legislatures has been recognised. See the Atiabari Case (1961) 1 S.C.R. 809 at p. 826Google Scholar (Sinha C.J.); at p. 854 (Gajendragadkar J.). See also the Rajasthan Case, A.I.R. 1962 S.C. 1406 at p. 1419Google Scholar (Das J.); at p. 1433 (Subba Rao J.). The contrary view expressed by Hidayatullah J. (Ibid. p. 1453) is, it is submitted, not correct; but a discussion of that view would be more appropriate to the chapter of my forthcoming book than to this article.

⁸⁸ The observation of Das J. that a textual interpretation may not disclose the true intendment of the articles in Part XIII because “there is such a mix up of exception upon exception” (p. 64, ante) are, it is respectfully submitted, a cry of despair. However, courts possess wide powers to reject or modify provisions to which no meaning can be given. See Maxwell, op. cit., p. 221 et seq. See also 11 App.Cas. 627 and [1909] 2 K.B. 24 cited in note 2 at p. 221.

⁸⁹ In the Rajasthan case Subba Rao J. observed that the reference in the non obstante clause of art. 304 “may have some relevance to art. 301 because it enables the legislature of a state to impose an impediment to trade in spite of art. 301”: A.I.R. 1962 S.C. at p. 1434. It is respectfully submitted that this observation is not correct for it overlooks the opening words of art. 301. If a right is subject to the imposition of restrictions, the imposition of those restrictions cannot be in spite of the right.

⁹⁰ Subba Rao J. has adopted a similar line of reasoning. He held that the non obstante clause of art. 304 had no relevance vis-à-vis art. 303 which only prohibited a state legislature from making a discriminatory law, and it did not in any way prohibit the state legislature from imposing a non-discriminatory tax permitted by art. 304 (a). See the Rajasthan case, ibid. p. 1434.

⁹¹ This is involved in the reference to art. 301 which must be deleted, because art. 301 itself is subject to art. 304 among other articles.

⁹² That the reference to art. 803 in the non obstante clause to art. 304, as regards art. 304 (b) lifts the ban imposed by art. 303 has been held by Das J. and by Subba Rao J. See A.I.R. 1962 S.C. at pp. 1418 and 1434. This is in conflict with the interpretation of Gajendragadkar J. (p. 60, ante; also note 21, ante) and overrules bis interpretation.

⁹³ See note 88, ante.

⁹⁴ A.I.R. 1962 S.C. 1406 at p. 1422 (Das J.); at pp. 1432–1433 (Subba Rao J.).

⁹⁵ As for example art. 245, which relates to the extent of the law-making power of Parliament and state legislatures, is “subject to the provisions of” the Constitution.

⁹⁶ See the Rajasthan Case, A.I.R. 1962 S.C. 1406 at p. 1422Google Scholar (Das J.) and at pp. 1432–1433 (Subba Rao J.). Even if this view of Part XIII were right, which it is submitted it is not, it has been overlooked that if the substantive enactment is ambiguous and has thus more than one meaning, exceptions or provisos may throw a light on the meaning to be adopted. See Halsbury, Vol. 36, 3rd ed., p. 399, and the cases cited in note (q).

⁹⁷ See Halsbury, Vol. 36, 3rd ed., ibid.

⁹⁸ The writer has already given his reasons for saying that “intercourse” means commercial intercourse and that intercourse is comprised in “commerce.”

⁹⁹ James v. The Commonwealth of Australia [1936] A.C. 579 at p. 632.Google Scholar

¹ See note 68, ante.

² The Government of India Act, 1935, was brought into force on April 1, 1937.

³ If these problems have not arisen in an acute form it is due to the fortuitous circumstance that the same political party has been in power in the Union and in the states except for short interludes in Kerala.

⁴ A.I.R. 1962 S.C. at pp. 1420–1421; see p. 64 and note 39, ante.

⁵ Ibid. Whether it is really necessary to make these refinements can be answered only after the line of inquiry referred to in the preceding paragraph has been pursued, and its results obtained.

⁶ See p. 71 and note 63, ante.

⁷ That restrictions can be in the public interest without being reasonable is illustrated by Saghir Ahmed v. The State of U.P. (1955) 1 S.C.R. 707 at pp. 726–727.Google Scholar All that the omission of the word reasonable means is that the Constitution withdrew the question of reasonableness from judicial review.

⁸ See p. 60 and note 27, ante.

⁹ (1958) S.C.R. 1422 at p. 1484. See p. 75, ante.

¹⁰ The former Indian States were described as Part B States.

¹¹ Entry 50, List II, Taxes on mineral rights subject to any limitations imposed by Parliament…; entry 57. Taxes on vehicles whether mechanically propelled or not… subject to the provisions of entry 35, List III (which relate, inter alia, to the principles on which taxes on such vehicles can be levied).

¹² Art. 286 (before its amendment) restricted the power to tax the sale of goods if the sale was interstate; art. 276 put a limit to the tax on professions.

¹³ Art. 304 (a) has not been considered as a source of power by the Supreme Court.

¹⁴ List III contains no tax.

¹⁵ It has been frequently asked, Why does art. 304 (a) find a place in Part XIII if a tax is not included in art. 301? We have seen that the non obstante clause in art. 304 referring to art. 301 is meaningless. The answer therefore is, since a discriminatory tax is a well recognised barrier to the freedom of trade in goods, it is natural to prohibit it in a Part dealing with the freedom of trade.

¹⁶ See pp. 79, 80, ante.

¹⁷ 1942 F.C.R. 18; note 77, ante.