Can parliament make a law that has extra-territorial operation? Whether the validity of such a law can be questioned?

Question: Can parliament make a law that has extra-territorial operations? Whether the validity of such a law can be questioned? [RJS 2014]

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Answer

Article 245 of the Indian Constitution states the provision for the extent of laws made by Parliament and by the Legislatures of States:

Clause 1 states that subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

Clause 2 states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

The answer to the present proposition was well illustrated in the case of A.H. Wadia v. Income Tax Commissioner, (1948) 51 BOMLR 287 where the court held that a question of extraterritoriality of enactment can never be raised against a supreme legislative authority on the grounds of questioning its validity. It may not comply with the rules of international law or while enforcing it practical difficulties may arise but they are subjected to questions of policy which is the concern of the national or domestic tribunal.

The Indian Constitution states under Article 245 that the legislative powers conferred upon the parliament in order to enact laws within the territorial jurisdiction as well as for the purpose may take the cognizance of the extraterritorial purpose. This is the subject under Doctrine of territorial nexus.

Parliament can also exercise state powers or collective powers. The Public Trust Doctrine states that all laws passed by parliament with respect to extraterritorial operations shall be enacted for the purpose of safeguarding the welfare and security of India, which directly concludes that no laws shall be made for the extraterritorial operations if there is no nexus of such law or legislation with India.

Based on the above provision and ruling it is well settled that the Parliament is conferred with the power to make laws within its territorial jurisdiction and also for extra-territorial purpose that has a legitimate nexus with India. Legislation or laws regarding this matter come under the ambit of the parliament as it has the power to do so. These laws can’t be questioned on their validity, however, if the parliament enacts any law which doesn’t establish any nexus with India will turn out to be ultra vires and would be considered as the laws made for a foreign land.

Thus, if any law passed by the parliament has a real nexus with Indian Territory, it can’t be deemed to held as invalid or unconstitutional. If such a law enacted by parliament establishes no nexus with India, then it would be ultra vires.

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