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TMI Blog2011 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... impact on, or effect in, or consequences for: (a) the territory of India, or any part of India; or (b) the interests of, welfare of, wellbeing of, or security of inhabitants of India, and Indians. It is obvious that Parliament is empowered to make laws with respect to aspects or causes that occur, arise or exist, or may be expected to do so, within the territory of India, and also with respect to extra-territorial aspects or causes that have an impact on or nexus with India as explained above in the answer to Question 1 above. Such laws would fall within the meaning, purport and ambit of the grant of powers to 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 may require extra-territorial operation. Any laws enacted by Parliament with respect to extra-territorial aspects or causes that have no impact on or nexus with India would be ultra-vires, as answered in response to Question 1 above, and would be laws made "for" a foreign territory. X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude legislative competence with respect to aspects or causes that occur, arise or exist or may be expected to do so, outside the territory of India. It is obvious that legislative powers of Parliament incorporate legislative competence to enact laws with respect to aspects or causes that occur, arise or exist, or may be expected to do so, within India, subject to the division of legislative powers as set forth in the Constitution. It is also equally obvious and accepted that only Parliament may have the legislative competence, and not the State Legislatures, to enact laws with respect to matters that implicate the use of State power to effectuate some impact or effect on aspects or causes that occur, arise or exist or may be expected to do so, outside the territory of India. Two divergent, and dichotomous, views present themselves before us. The first one arises from a rigid reading of the ratio in Electronics Corporation of India Ltd. v. CIT [1989] 2 SCC 642, 646 ([1990] 183 ITR 43 (SC).) ("ECIL") and suggests that Parliament's powers to legislate incorporate only a competence to enact laws with respect to aspects or causes that occur, arise or exist, or may be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation." "1. Name and territory of the Union.-(1) India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the First Schedule. (3) the territory of India shall comprise (a) The territories of the States ; (b) the Union territories specified in the First Schedule ; and (c) such other territories as may be acquired." II Meanings of some phrases and expressions used hereinafter Many expressions and phrases, that are used contextually in the flow of language, involving words such as "interest", "benefit", "welfare", "security" and the like in order to specify the purposes of laws, and their consequences can, have a range of meanings. Inasmuch as some of those expressions will be used in this judgment, we are setting forth below a range of meanings that may be ascribable to such expressions and phrases : "aspects or causes" "aspects and causes" : events, things, phenomena (howsoev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration before a two-judge Bench of this court. In light of the far reaching issues of great constitutional purport raised in this matter, the fact that such issues had been raised previously in ECIL*, the referencing of some of those issues by the three judge Bench in ECIL* to a Constitutional Bench, and the fact that the civil appeals in the ECIL case* had also been withdrawn, a two-judge Bench of this court vide its order dated November 28, 2000, also referred the instant matter to a Constitutional Bench. On July 13, 2010, the matter again came up for consideration before another three-judge Bench of this court, and vide its order of the same date, this matter came to be placed before us. It is necessary for purposes of clarity that a brief recounting be undertaken at this stage itself as to what was conclusively decided in ECIL, and what was referred to a Constitutional Bench. After conclusively determining that clauses (1) and (2) of article 245, read together, impose a requirement that the laws made by Parliament should bear a nexus with India, the three-judge Bench in ECIL* asked that a constitutional bench be constituted to consider whether the ingredients of the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nonyms for the words "aspect" and "cause", and their plural forms, as used in this judgment. The issue under consideration in ECIL was whether section 9(1)(vii)(b) of the Income-tax Act (1961) was unconstitutional on the ground that it constitutes a law with respect to objects or provocations outside the territory of India, thereby being ultra vires the powers granted by clause (1) of article 245. Interpreting clauses (1) and (2) of article 245, Chief Justice Pathak (as he then was) drew a distinction between the phrases "make laws" and "extraterritorial operation"-i.e., the acts and functions of making laws versus the acts and functions of effectuating a law already made. In drawing the distinction as described above, the decision in ECIL* considered two analytically separable, albeit related, issues. They relate to the potential conflict between the fact that, in the international context, the "principle of Sovereignty of States" (i.e., nation-states) would normally be "that the laws made by one State can have no operation in another State" (i.e., they may not be enforceable), and the prohibition in clause (2) of artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itorial aspects or causes have some impact on or nexus with or to India ; and (b) such laws are intended to benefit India. The second form would be when the extra-territorial aspects do not have, and neither are expected to have, any nexus whatsoever with India, and the purpose of such legislation would serve no purpose or goal that would be beneficial to India. It was concluded in ECIL* that Parliament does not have the powers to make laws that bear no relationship to or nexus with India. The obvious question that springs to mind is : "what kind of nexus ?" Chief Justice Pathak's words in ECIL* are instructive in this regard, both as to the principle and also the reasoning (page 55 of 183 ITR) : "But the question is whether a nexus with something in India is necessary. It seems to us that unless such nexus exists Parliament will have no competence to make the law. It will be noted that article 245(1) empowers Parliament to enact laws for the whole or any part of the territory of India. The provocation for the law must be found within India itself. Such a law may have extra-territorial operation in order to subserve the object, and that object must be related t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly reduce the national capacity to make laws in dealing with extra-territorial aspects that have an impact on or nexus with India. Clearly, that would be an anomalous construction. In attacking such a construction, the learned Attorney General appeared to have moved to another extreme. The written propositions of the learned Attorney-General, with respect to the meaning, purport and ambit of article 245, quoted verbatim, were the following : "1. There is a clear distinction between a Sovereign Legislature and a Subordinate Legislature. 2. It cannot be disputed that a Sovereign Legislature has full power to make extra-territorial laws. 3. The fact that it may not do so or that it will exercise restraint in this behalf arises not from a Constitutional limitation on its powers but from a consideration of applicability. 4. This does not detract from its inherent rights to make extraterritorial laws. 5. In any case, the domestic courts of the country cannot set aside the legislation passed by a Sovereign Legislature on the ground that it has extra-territorial effect or that it would offend some principle of international law. 6. The theory of nexus was evolved essentially f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and competence of Parliament. (ii) The same proposition can also be viewed from the perspective of the goals that such "extra-territorial laws" seek to accomplish, and the relationship of such goals to the territory for which such laws are intended to affect, as well as India. Modern jurisprudence, and not just international law or international ethics, does not support the view that legislative commands that are devoid of justice can be given the status of being "law". The extent of abuse of the theory of "rule of law", in its absolutist sense, in history, and particularly in the twentieth century, has effectively undermined the legitimacy of the notion that whatever the purpose that law seeks to achieve is justice. Consequently, we will assume that the learned Attorney General did not mean that Parliament would have powers to enact extraterritorial laws with respect to foreign territories that are devoid of justice i.e., they serve no benefits to the denizens of such foreign territories. Arguably India, as a nation-state, has not been established, nor has it developed, with an intent to be an expansionary or an imperialist power on the internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be so disabled with regard to an entire universe of laws, that are undefined, and unspecified. Further, the implication would also be that the judiciary has been stripped of its essential role even where such extra-territorial laws may be damaging to the interests of India. In addition the learned Attorney General has also placed reliance on the fact that clause 179 of the Draft Constitution, was split into two separate clauses, clause 179(1) and clause 179(2), by the Constitution Drafting Committee, and adopted as clauses (1) and (2) of article 245 in the Constitution. It seemed to us that the learned Attorney-General was seeking to draw two inferences from this. The first one seemed to be that the Drafting Committee intended clause 179(2), and hence clause (2) of article 245, to be an independent, and a separate, source of legislative powers to Parliament to make "extra-territorial laws". The second inference that we have been asked to make is that inasmuch as Parliament has been explicitly permitted to make laws having "extra-territorial operation", Parliament should be deemed to possess powers to make "extra-territorial laws", the implications of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such arrangements, that give the Constitution its identity, cannot be changed by the amending powers of the very organs that are constituted by it. Under our Constitution, while some features are capable of being amended by Parliament, pursuant to the amending power granted by article 368, the essential features-the basic structure-of the Constitution is beyond such powers of Parliament. The power to make changes to the basic structure of the Constitution vests only in the people sitting, as a nation, through its representatives in a Constituent Assembly. (See Kesavananda Bharati Sripadagalvaru v. State of Kerala [1973] 4 SCC 225 ; AIR 1973 SC 1461 and I. R. Coelho v. State of Tamil Nadu [2007] 2 SCC 1). One of the foundational elements of the concept of basic structure is it would give the stability of purpose, and machinery of government to be able to pursue the constitutional vision into the indeterminate and unforeseeable future. Our Constitution charges the various organs of the State with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation. Legislative powers are granted to enable the accomplishment of the goals of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been repeatedly appreciated by this court that our Constitution is one of the most carefully drafted ones, where every situation conceivable, within the vast experience, expertise and knowledge of our framers, was considered, deliberated upon, and appropriate features and text chosen to enable the organs of the State in discharging their roles. While indeed dynamic interpretation is necessary, if the meaning necessary to fit the changed circumstances could be found in the text itself, we would always be better served by treading a path as close as possible to the text, by gathering the plain ordinary meaning, and by sweeping our vision and comprehension across the entire document to see whether that meaning is validated by constitutional values and scheme. However, it can also be appreciated that given the complexity and the length of our Constitution, the above task would be gargantuan. One method that may be adopted would be to view the Constitution as composed of constitutional topological spaces. Each Part of the Constitution deals with certain core functions and purposes, though aspects outside such a core, which are contextually necessary to be included, also find place in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support or favour of 3 suitable or appropriate to 4 in respect of or with reference to 5 representing or in place of. . . . 14. conducive or conducively to ; in order to achieve . . . " (See Concise Oxford English Dictionary) Consequently, the range of senses in which the word "for" is ordinarily used would suggest that, pursuant to clause (1) of article 245, Parliament is empowered to enact those laws that are in the interest of, to the benefit of, in defence of, in support or favour of, suitable or appropriate to, in respect of or with reference to "the whole or any part of the territory of India". The above understanding comports with the contemporary understanding, that emerged in the twentieth century, after hundreds of years of struggle of humanity in general, and nearly a century long struggle for freedom in India, that the State is charged with the responsibility to always act in the interest of the people at large. Inasmuch as many extra-territorial aspects or causes may have an impact on or nexus with the nation-state, they would legitimately, and indeed necessarily, be within the domain of legislative competence of the national parliament, so l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a substitution would be that Parliament could be deemed to not have the powers to enact laws with respect to extra-territorial aspects or causes, even though such aspects or causes may be expected to have an impact on or nexus with India, and laws with respect to such aspects or causes would be beneficial to India. The notion that a nation-state, including its organs of governance such as the national Legislature, must be concerned only with respect to persons, property, things, phenomenon, acts or events within its own territory emerged in the context of development of nation-states in an era when external aspects and causes were thought to be only of marginal significance, if at all. This also relates to early versions of sovereignty that emerged along with early forms of nation-states, in which internal sovereignty was conceived of as being absolute and vested in one or some organs of governance, and external sovereignty was conceived of in terms of co-equal status and absolute non- interference with respect to aspects or causes that occur, arise or exist, or may be expected to do so, in other territories. Oppenheim's International Law (Vol. 1, "PEACE" 9th ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples of strict territorial jurisdiction have been relaxed, in the light of greater interdependencies, and acknowledgment of the necessity of taking cognizance and acting upon extraterritorial aspects or causes, by principles such as subjective territorial principle, objective territorial principle, the effects doctrine that the United States uses, active personality principle, protective principle etc. However, one singular aspect of territoriality remains, and it was best stated by Justice H. V. Evatt : "The extent of extra-territorial jurisdiction permitted, or rather not forbidden, by international law cannot always be stated with precision. But certainly no State attempts to exercise jurisdiction over matters, persons, or things with which it has absolutely no concern." (See Trustees Executors & Agency Co Ltd. v. Federal Commissioner of Taxation [1933] 49 CLR. 220 at 239). The reasons are not too far to grasp. To claim the power to legislate with respect to extra-territorial aspects or causes, that have no nexus with the territory for which the national Legislature is responsible, would be to claim dominion over such a foreign territory, and negation of the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised for the benefit of India. All of its energies and focus ought to only be directed to that end. It may be the case that an external aspect or cause, or welfare of the people elsewhere may also benefit the people of India. The laws enacted by Parliament may enhance the welfare of people in other territories too ; nevertheless, the fundamental condition remains : that the benefit to or of India remain the central and primary purpose. That being the case, the logical corollary, and hence the second limitation that flows therefrom, would be that an exercise of legislative powers by Parliament with regard to extra-territorial aspects or causes that do not have any, or may be expected not to have nexus with India, transgresses the first condition. Consequently, we must hold that Parliament's powers to enact legislation, pursuant to clause (1) of article 245 may not extend to those extra-territorial aspects or causes that have no impact on or nexus with India. For a Legislature to make laws for some other territory would be to act in a representative capacity of the people of such a territory. That would be an immediate transgression of the condition that Parliament be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spiritual or in some other tangible or intangible manner-to the people who constitute India. We also derive interpretational support for our conclusion that Parliament may not legislate for territories beyond India from article 51, a Directive Principle of State Policy, though not enforceable, nevertheless fundamental in the governance of the country. It is specified therein that : "51. Promotion of international peace and security.-The State shall endeavour to (a) promote international peace and security ; (b) maintain just and honourable relations between nations ; (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another ; and (d) encourage settlement of international disputes by arbitration." To enact legislation with respect to extra-territorial aspects or causes, without any nexus to India, would in many measures be an abdication of the responsibility that has been cast upon Parliament as above. International peace and security has been recognised as being vital for the interests of India. This is to be achieved by India maintaining just and honourable relations, by fostering respect for internationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a healthy debate about that, casting serious doubts about the legal efficacy of such arguments. (See Chapter 2 : "The Sovereignty of Parliament-in Perpetuity ?", by A. W. Bradley in The Changing Constitution, Ed. Jowell & Oliver* and Studies in Constitutional Law by Colin R. Munro**). It is now a well accepted part of our constitutional jurisprudence that by virtue of having a written constitution we have effectively severed our links with the Austinian notion that law as specified by a sovereign is necessarily just, and the Diceyan notion of parliamentary sovereignty. It is the Constitution that is supreme, with true sovereignty vesting in the people. Inasmuch as that true sovereign has vested some of their collective powers in the various organs of the state, including Parliament, there cannot be the legal capacity to exercise that power in a manner that is not related to their interests, benefits, welfare and security. We now turn our attention to other arguments put forward by the learned Attorney General with regard to the implications of permissibility of making laws that may operate extra-territorially, pursuant to clause (2) of article 245. In the first measur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws that have already been enacted by Parliament. The subject of clause (2) of article 245 is the law made by Parliament, pursuant to clause (1) of article 245, and the object, or purpose, of clause (2) of article 245 is to specify that a law so made by Parliament, for the whole or any part of territory of India, should not be held to be invalid solely on the ground that such laws require extraterritorial operation. The only organ of the state which may invalidate laws is the judiciary. Consequently, the text of clause (2) of article 245 should be read to mean that it reduces the general and inherent powers of the judiciary to declare a law ultra vires only to the extent of that one ground of invalidation. One thing must be noted here. Inasmuch as the judiciary's jurisdiction is in question here, an a priori, and a strained, inference that is unsupported by the plain meaning of the text may not be made that the powers of the Legislature to make laws beyond the pale of judicial scrutiny have been expanded over and above that which has been specified. The learned Attorney-General is not only seeking an interpretation of article 245 wherein Parliament is empowered to make laws &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g is specified in an article of the Constitution it is to be taken, as a matter of initial assessment, as nothing more was intended. In this case it is the territory of India that is specified by the phrase "for the whole or any part of the territory of India." Expressio unius est exclusio alterius-the express mention of one thing implies the exclusion of another. In this case Parliament has been granted powers to make laws "for" a specific territory-and that is India or any part thereof ; by implication, one may not read that Parliament has been granted powers to make laws "for" territories beyond India. The reliance placed by the learned Attorney General on the history of changes to the precursor to article 245, in the Draft Constitution, in support of his propositions is also inapposite. In fact one can clearly discern that the history of changes to clause 179 of the Draft Constitution (which became article 245 in our Constitution), supports the conclusions we have arrived at as to the meaning, purport and ambit of article 245. The first iteration of clause 179 of the Draft Constitution read, in part, as follows : "Subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (3) of article 246 do not mention the word "territory". However, clause (4) of article 246 specifies that Parliament has the power to "make laws for any part of the territory of India not included in a State" with respect to any matter, notwithstanding that a particular matter is included in the State List. Inasmuch as clause (1) of article 245 specifies that it is for "the whole or any part of the territory of India" with respect to which Parliament has been empowered to make laws, it is obvious that in article 246 legislative powers, whether of Parliament or of State Legislatures, are visualized as being "for" the territory of India or some part of it. Article 248 provides for the residuary power of legislation. However, in this instance, the Constitution speaks of the powers of Parliament in terms of the subject matters or fields of legislative competence not enumerated in the Concurrent and State lists in the Seventh Schedule, etc. article 248 does not mention any specific territory. Nevertheless, inasmuch as it retains the link to article 246, it can only be deemed that the original condition that all legislation be "for" th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g "for the whole or any part of the territory of India". Article 253 deals with legislation that may be needed to give effect to various international agreements, and again the powers are specified only in terms of making laws "for the whole or any part of the territory of India." Nowhere within Chapter I, Part XI do we find support for the propositions of the learned Attorney-General that Parliament may make laws "for" any territory other than the "whole or any part of the territory of India." To the contrary, we only find a repeated use of the expression "for the whole or any part of the territory of India." It is a well known dictum of statutory and constitutional interpretation that when the same words or phrases are used in different parts of the Constitution, the same meaning should be ascribed, unless the context demands otherwise. In this case, we do not see any contextual reasons that would require reading a different meaning into the expression "for the whole or any part of the territory" in the context of article 249, 250 or 253, than what we have gathered from the text of article 245. IX Wider structural analy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Parliament may make laws. Parliament still remains ours, and exclusively ours. Though the Government of India, pursuant to article 260, acts on behalf of a foreign territory, there is always Parliament to make sure that the Government of India does not act in a manner that is contrary to the interests of, welfare of, well-being of, or the security of India. The foregoing is a very different state of affairs from a situation in which Parliament itself acts on behalf of a foreign territory, as implicated by the expression "make extra-territorial laws". The former comports with the notions of parliamentary democracy in which the people ultimately control the Executive through their Parliament ; while the latter indicates the loss of control of the people themselves over their elected representatives. The text of articles 1 and 2 leads us to the irresistible conclusion that the meaning, purport and ambit of article 245 is as we have gathered above. Sub-clause (c) of clause (3) of article 1 provides that territories not a part of India may be acquired. The purport of the said sub-clause (c) of clause (3) of article 1, pace Berubari Union and Exchange of Enclaves, In re, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this regard the Privy Council's observations about the appellant's contention are pertinent (page 273) : "The appellant's arguments . . . comprised two contentions. It was first argued that these provisions were not extra-territorial in their operation. It was also argued that even if they should be found in any degree to operate extra-territorially, that would be no ground for holding them to be invalid, so far as municipal courts called upon to deal with them were concerned", and finally (page 284) "in our judgment therefore, the extent, if any, of extra-territorial operation which is to be found in the impugned provisions, is within the legislative powers given to the Indian Legislature by the Constitution Act." It is clear that in the cited case, the Privy Council was dealing with the issue of extraterritorial operation of the law, and not extra-territorial law. In Wallace Brothers v. CIT [1948] 16 ITR 240 (PC), also the issue was with regard to sufficiency of territorial connection, and it was held that the principlesufficient territorial connection-not the rule giving effect to that principle-residence-is implicit in the power conferred by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is useless to enact it but no one can suggest today that a law is void or ultra vires which is passed by Parliament on the ground of its extra-territoriality". Clearly, the statements that under our Constitution Parliament has been given absolute powers, and therefore it can enact extra-territorial laws, are not in comport with present day constitutional jurisprudence in India that the powers of every organ of the State are as provided for in the Constitution and not absolute. We discern that the second half of the excerpt cited above provides the clue to the fact that Chief Justice Chagla was concerned more with laws that require an operation outside India, and not in terms of laws that have no connection with India whatsoever. At best the comment reveals the concern of the learned jurist about Parliament having the competence to enact laws with respect to objects and provocations lying outside the territory, but whose effect is felt inside the territory. Hence, that broad statement does not derogate from the textual meaning, purport and ambit of article 245 that we have expounded hereinabove. XI Conclusion There are some important concerns that we wish to share our thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bodin, the absolute sovereign was tempered by divine law (or "natural law"), and the customary laws of the community. Alan James states that "[f]rom this basis it could be argued that sovereignty lay not with the ruler but with the ruled. In this way the ultimate authority could be claimed for the people, with the Government simply acting as their agent." (See Sovereign Statehood-The Basis of International Society*). These seeds of accountability, carried within them the incipient forms of arguments that would inexorably lead to the modern notion of self-determination by the people : that each nation state, formed by the people, and answerable to the people through the organs of the State, would act in accordance with the wishes of the people-both in terms of ordinary moments of polity, and also in terms of constitutional moments, with the latter setting forth, in greater or lesser specificity, the acts that may or may not be done by the organs of the State. The path to modern constitutionalism, with notions of divided and checked powers, fundamental rights and affirmative duties of the State to protect and enhance the interests of, welfare of, and security of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gration of the dignity of all human beings, including our own. The debates in the Constituent Assembly with regard to the wording of article 51, which was cited earlier in this judgment, gives the true spirit with which we the people of this country have vested our collective powers in the organs of governance. This is so particularly because they were made in the aftermath of World War II, arguably the most brutal that mankind has ever fought, and the dawn of the atomic age. In particular the statements of Prof. Khardekar, are worth being quoted in extenso : "Mr. Austin, a great jurist, says that there is no such thing as international law at all-if there is anything it is only positive morality . . . In saying that there may be positive morality I think even there he is wrong. If there were to be morality amongst nations, well we would not have all that has been going about. If there is a morality amongst nations today, it is the morality of robbers. If there is any law today it is the law of the jungle where might is right . . . The part that India is to play is certainly very important because foundations of international morality have to be laid and only a country like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly provisioned set of powers to Parliament. Indeed, when all the powers necessary for an organ of the State to perform its role completely and to effectuate the constitutional mandate, can be gathered from the text of the Constitution, properly analysed and understood in the wider context in which it is located, why should such unnecessarily imprecise arrogation of powers be claimed ? To give in to such demands, would be to run the risk of importing meanings and possibilities unsupportable by the entire text and structure of the Constitution. Invariably such demands are made in seeking to deal with external affairs, or with some claimed grave danger or a serious law and order problem, external or internal, to or in India. In such circumstances, it is even more important that courts be extra careful. The words of Justice Jackson in Woods v. Cloyd W. Miller Co. [1948] 333 U.S. 138, in dealing with war powers, may be used as a constant reminder to be on guard : "I agree with the result in this case, but the arguments that have been addressed to us lead me to utter more explicit misgivings . . . The Government asserts no constitutional basis for this legislation other than this v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to control, modulate, mitigate or transform the effects of such extra-territorial aspects or causes, or in appropriate cases, eliminate or engender such extra-territorial aspects or causes, only when such extra-territorial aspects or causes have, or are expected to have, some impact on, or effect in, or consequences for : (a) the territory of India, or any part of India ; or (b) the interests of, welfare of, well-being of, or security of inhabitants of India, and Indians. It is important for us to state and hold here that the powers of legislation of Parliament with regard to all aspects or causes that are within the purview of its competence, including with respect to extra-territorial aspects or causes as delineated above, and as specified by the Constitution, or implied by its essential role in the constitutional scheme, ought not to be subjected to some a priori quantitative tests, such as "sufficiency" or "significance" or in any other manner requiring a pre-determined degree of strength. All that would be required would be that the connection to India be real or expected to be real, and not illusory or fanciful. Whether a particular law enacted by Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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