This article on ‘The Doctrine of Territorial Nexus under the Indian Constitution‘ was written by an intern at Legal Upanishad.
Introduction
India is a Federal State which means that there, is a distribution of power between the Centre and the State. The Constitution of India has divided the powers to make sure that the Independence of The Executive and The Judiciary is maintained. Since our country is federal, a dual structure between the Center and the State has been established. The Constitution has granted them the Sovereign Power to be used, as per the guidelines given by it. The Constitution is the supreme law of the land that provides for federalism and also provides how federalism in India has in use. This article explores the meaning, concept, and application of the doctrine of Territorial nexus under the Constitution of India.
The doctrine of Territorial Nexus under the Indian Constitution
Article 245 of The Indian Constitution is titled: Extent of laws made by parliament and by the legislatures of states. It has defined that what is the extent of Laws that are made by The Parliament and The State Legislature.
- The Parliament has jurisdiction to make laws for extraterritorial operations or laws for the whole of the country or any part thereof.
- The State Legislature has the jurisdiction to make laws for the whole of the state or any part thereof.
Article 245(1) Of the Indian Constitution says that the laws made by the Parliament using its extra-territorial jurisdiction are not subject to invalidation by saying that, outside India, they have no effect.
Article 245(2) Of the Indian Constitution says that the laws made by the Parliament using its extra-territorial jurisdiction are not subject to be asked questions on their validity. Thus, the law cannot be questioned and the courts are bound to enforce the same.
Article 246 of The Indian Constitution has defined The Powers of The State and The Union, through the medium of Three Lists and are as follows:
- Union List (List I): The absolute power to make laws for the subject matter in this list rests with The Parliament.
- State List (List II): The absolute power to make laws for the subject matter in this list rests with The State.
- Concurrent List (List III): The absolute power to make laws for the subject matter in this list rests with The Parliament and The State.
Theory of Territorial Nexus
The State, unlike the parliament, has no power to make extra-territorial laws. However, it can make extra-territorial laws because there exists a connection and link between the state and the object. To make sure that the laws which a state has made are for an extra-territorial purpose, a link, a connection must be shown between that object and the state. The state has the jurisdictional power to enact laws for its territorial limits and also extra-territorial laws for its territory limits, in exceptional cases.
The Concept of Territorial Nexus is a measure in special cases which allows the state to enact laws for extraterritorial operations if it is proved by the state that there is present a connection and link between the object and the state.
The Doctrine of Territorial Nexus applies only on the meeting of certain and are as follows:
- The nexus must be real, and valid.
- The hindrance must have a direct connection with the state’s territory.
These circumstances are enough to show that the nexus is a real and valid one and thus its’s validity will not be questioned by the court.
Extra-Territorial Operations
The Parliament has been conferred by The Constitution the power to make laws for the country. Similarly, The Constitution has also conferred upon The Parliament to enact laws for extra-territorial purposes that have a valid connection and link to India. The laws made for this purpose cannot be questioned on the grounds of validity however if the connection and link are not established, then these laws are termed to be ultra-virus.
The Constitution also says that if the parliament deems fit it may upon the finding of that connection and link take notice of the same and exercise the powers, which have been conferred upon the state, by the Constitution. The Doctrine of Public Trust talks about the enactment of laws by the parliament using its extra-territorial jurisdiction. It says that these laws are to be enacted keeping in mind the purpose, which is of safeguarding the welfare and security of India. These laws will become ultra-virus if there is no connection and link between the country and the object.
Territorial Nexus and India’s Legislation
As has been already mentioned that Article 245 of The Indian Constitution defines the limit up to which the parliament and the state can make laws respectively. The Parliament also has the power to enact extra-territorial laws if there is present a link and connection with India and these laws cannot be challenged and questioned for their validity, but they must be following the provisions of The Constitution of India.
The powers which the parliament has been conferred are not absolute. The laws which the parliament makes operate outside of India and the state has no power to enact these laws. The State can however make extra-territorial laws based on territorial nexus. That condition is that there must be present a connection between the state and the object and in these circumstances the state can also make extra-territorial laws that will operate outside the jurisdiction of the state.
Conclusion
Thus, it can be concluded by saying that there is a distribution of powers between the center and the state and the power is exercised through the medium of federalism.
Power has been given to the parliament to enact laws for India and the state of its territory. The Parliament also has the power to make extra-territorial laws if it is proved that there is a connection and link between the country and the object. These laws operate outside the country’s territorial limits.
The State also has the power to enact laws of extra-territorial nature for its territory, only if a certain condition is met and that is if there is proof that there is a connection and link between the state and the object. These laws operate outside the state’s territorial limits.
List of References:
- Suryansh Singh, “Doctrine of Territorial Nexus”, iPleaders Blog, 18 June 2019, available at: https://blog.ipleaders.in/doctrine-of-territorial-nexus/
- Vicky, “Doctrine of territorial nexus”, Legal Services India, available at: https://www.legalserviceindia.com/legal/article-1343-doctrine-of-territorial-nexus.html
- “What is doctrine of territorial nexus?”, Byjus, available at: https://byjus.com/ias-questions/what-is-doctrine-of-territorial-nexus/#:~:text=According%20to%20the%20Doctrine%20of,245%20of%20the%20Indian%20Constitution