Author: Surjit Raiguru, II Year of B.A.,LL.B from Symbiosis Law School, Pune.
RELEVANCE IN THE CONTEMPERORY SCENARIO
The Doctrine of Territorial Nexus permits the extraterritorial applicability of federal and state legislation. Unprecedented advancements in science and technology have influenced communications, commerce, and business as well as given birth to cybercrimes, posing new societal and economic difficulties. This research article demonstrates how the rapid evolution of our societal structure and the proliferation of laws governing extraterritorial activities as a result of increased international cooperation and cross-border initiatives among nations have created a highly dynamic legal environment that calls for solid parliamentary support in order to ensure clearly defined roles and jurisdictions, prevent confusion and an incompatibility of orders, and ensure consistency in judgement-making.
Article 245(2) of the Indian Constitution prohibits the court from deeming legislation that may have extra - territorial jurisdiction as being supra vires while validating such laws. According to the legal principle "Expressio unius est exclusio alterius" which states that "an explicit reference of one item implies the denial of the other" parliamentary legislation may have transboundary effects, hence the issue of legislating anything which is extra-territorial is not relevant. The judiciary has been given the responsibility of determining whether these laws are lawful and if they are, invalidating them.. According to Article 245 of the Indian Constitution, adopted laws must have some connection to India in order to fall within the geographical jurisdiction of Indian law. As a result, Article 245(2) only addresses extraterritorial operation where there is a cause and effect link between the extraterritorial action and India, the welfare of the nation and the need that the Parliament designate the level of interaction between the people and the law.
Keywords: Territorial Nexus, Extra Territorial Jurisdiction, Article 245 of the Indian Constitution, Judicial Interpretation, International Courts.
A legislation passed by parliament is not declared unconstitutional because it applies to extra territory, or to territory other than that of India, as per Article 245(2) of the Indian Constitution. The out-of-state function, which implies it operates beyond the state, may be covered in whole or in part by legislation made by the state legislature. This general rule does include one exception, however. If there is sufficient connection between the object of interest and the state, state legislation for wider regional usage will be acceptable.
Background of the Topic.
The Clause 179 of the Government of India Act, 1935 is the source of Articles 245(1) and (2), which provide the Parliament and State Legislatures legislative authority. This ability is limited, however. A restriction that results from the exact reason the Legislature was established is attached to the giving of the authority to legislate.
Statement of Problem
It is to be highlighted that the judiciary's prohibition against finding a law with extraterritorial application unlawful in no way permits the creation of an extraterritorial legislation. Since an exception logically only applies within the scope of the clause to which it is an exception, this article will cover if it may be inferred that this exception only applies to legislation that the Parliament is authorized to enact or other way round.
Objective of Research
The goal is to always act in the best interests of the Indian people. In reference to Hobbes' Idea of Absolute Sovereignty, it was noted that no organ of the Indian State could be the repository of the people of India's collective powers unless those powers were employed only for the good of India. The purpose must be relevant to the people that make up India, yet it may also unintentionally benefit other individuals. This is what Clause (2) of Article 245 has in mind and serves as a specific and constrained limitation to the judiciary's inherent jurisdiction to nullify.
RESEARCH AND ANALYSIS
Section 245 (2) of the Indian Constitution gives the Indian Parliament the authority to pass laws pertaining to foreign affairs or issues that have an either directly or indirectly, tangible or intangible, influence on Indian territory, any portion of India, or the wellbeing or security of Indian nationals. So, transboundary laws enforcement need to be connected to or have an effect on India. Parliamentary regulations governing supplementary community events is subject to judicial scrutiny, but it can never be ruled unlawful because of its extraterritorial character. The state legislature has the authority to enact laws governing all or a portion of its foreign affairs, which implies that it functions on an international level.
This general rule does include one exception, however. If there is sufficient connection between the centre and the state, state legislation allowing broader regional usage will be legitimate. Only Parliament, not the state legislatures, has the authority to strengthen the legislation in this area. In light of this, the State Legislature's laws may be effectively contested in court if they undertake more local work, unless the local complex can sustain more local work. The law of the State will be applicable if there is any link or contact between the State and the Centre, even when the item to which the law pertains cannot exist inside the State's boundaries. The territorial link is applicable outside of Indian Territory alone. At that time, general law in India went into force.
However, the international law of jurisdiction is susceptible to major changes in the setting of a global period, but its fundamental direction, with territoriality as the guiding principle, has been stable for a very long time. Contrary to the rhetoric of continuity that is sometimes used, essential spheres of jurisdiction have changed significantly recently, particularly when it comes to the regulation of foreign economic activity. According to international law, a state may only exercise jurisdiction over a person or item for which it wants to inflict punishment if it can prove a connection to that person or item. Even States have mostly taken a pragmatic stance and have abstained from unilaterally enforcing their budgetary authority. It was determined that extra-territorial application of law is legal if there is a genuine link between it and India, its interests, or its territory, drawing on a variety of constitutional provisions and interpretational tools. The Parliament will decide how these operations' components and root causes relate to India. This ratio is just another illustration of the conflict between judicial activism and legislative autonomy. A direct adherence of Indian laws to areas outside of India is a sign of the implications of such a decision. As a consequence, only laws that demonstrate some degree of connection would be allowed to have extra-territorial application. In certain deals, this could be advantageous, but not always.
The laws now in effect may not specifically address the nature of the partnership but rather may have been written with the intention of having a broad scope of applicability, as determined by the courts. This decision does not account for such a situation and may potentially be harmful to India's interests and the wellbeing of its citizens. However, based on the reading of Article 245 it wouldn't be accurate to say that a legislation having extraterritorial application is ultra vires.
According to Article 245 of the Indian Constitution, adopted laws must have some connection to India in order to fall within the geographical jurisdiction of Indian law. In Sondur Gopal v. Sondur Rajini, the Supreme Court of India clarified the law pertaining to this Article. Even if an extraterritorial legislation cannot be applied directly in another State, it is nevertheless legal and protected by Article 245(2) of the Indian Constitution. According to Article 245(2), no measure passed by the Parliament may be declared unconstitutional on the grounds that it would apply extraterritorially. However, this does not imply that laws with extraterritorial application may be passed when they have no connection to India at all.
When combined with Article 245 of the Indian Constitution, this interpretation suggests that the Parliament may pass laws for Indian citizens regulating their actions even outside of Indian Territory. If any liability is imposed for such acts under the law, the person cannot claim that the act was performed outside of Indian Territory and, as a result, no liability could be imposed on him.
The word "extra-territorial operation" must be considered in light of the idea of extra-territoriality. This notion is recognized as being well-established and accepted in international law, subject to state sovereignty. According to a number of authorities and court rulings, “extra-territorial operation” is defined in the same way as "extra-territorial legislation" which is domestic law that governs activity overseas. Since both words refer to the operation or application of a law beyond the borders of a sovereign State, the terms "extraterritorial operation" and "extraterritorial legislation" cannot be distinguished from extra-territoriality.
The theory of territorial nexus, a notion developed to support the application of a law from one nation to another, strives to show a genuine relationship between the nation passing the legislation and the nations whose territories the law is intended to be applied to or operated.
The important position maintained by international law is crucial for maintaining global peace and is reflected in our Constitution as a general concept as well as when granting extraterritorial application to an Indian legislation. It is widely acknowledged that India's interests depend on maintaining the international peace and security that are guaranteed under Article 51. The fundamental tenet of international law is that laws passed in one state cannot be enforced in another state because of the sovereign equality of all states. The court determined the objective of the Constitution's architects by citing the debates in the Constituent Assembly about the language of Article 51 of the Indian Constitution.
The statement of Professor Khardekar, which highlights the significance of global morality and the idea that peace should rule the globe, makes it obvious that there was a clear objective behind the prohibition on drafting laws for another region. Therefore, it would be reasonable to assume that India would be the focus of the Legislature as it carried out its legal duties rather than any other country. However, if there is a link, this legislation could, inadvertently, have an extraterritorial function. The Supreme Court said as much in its ruling on the GVK Industries case that the absolute necessity is that every legislation of the Parliament must be infused with, and at the heart alone be filled with, the objective of actualising benefits to India. This is a problem with our Constitution's core basis, not merely its form.
An English-registered corporation was a partner in an Indian firm in Wallace v. Income Tax Commission. The Indian tax officials sought to collect all of the company's earnings. The Panel on Technology has put the idea of a national database into practice and approved tax rates. It is said that the purchase of British India, which accounted for the majority of the company's annual revenue, gave the business enough local connections in that year to support the management's classification as a domestic Indian for all tax purposes regarding the management's annual incomes on any earnings you may receive. The tax legislation will be implemented if the person and the state that wants to raise taxes on him cooperate enough. However, such relationship must be there in addition to the fraud and credit that must be enforced and the courts will determine this issue in each instance separately whether there has been sufficient communication.
In State of Bombay Vs RMDC, although the defendant didn't reside in Bombay, he used a printed newspaper produced in Bangalore that was extensively circulated in Bombay to host competitions with cash prizes. The competition's crucial procedures, including entrance fee payment and form completion, all did take place in Bombay. The respondent is being taxed by the state government for operating a company there. The Supreme Court was asked to decide that whether defendant, the competition's organizer, who was located across the territory of Bombay, could legitimately be taxed under the Act. It was asserted that since all of the predicted competing activities were held predominantly in Bombay, there was enough territorial linkage to allow the Bombay Legislature to tax the defendant.
In State of Bihar v. Tata Iron and Steel Company, if the items are created, bought, and manufactured in the state, the Tax Act for collecting sales tax decides whether the transaction is made within the state or outside. The court upheld this Act's validity and determined that there was adequate geographical linkage for it. The characteristics and details of the case will determine whether the laws and what must be taxed enough. It was noted that determining whether a geographical link is sufficient requires taking into account two factors: a. the linkage must be genuine and not fictitious; and b. the obligation sought to be enforced must be relevant to that linkage.
In Charusila Dasi vs the State of Bihar, the Bihar Hindu Religious Trust Act, 1950 was passed by the Bihar legislature in order to save and maintain structures connected to the Hindu Religious Trusts. The Respondent had formed a title deed to her homes and the land of Bihar and Calcutta, and the Act extended to all trusts, or any portion of them, situated in the Bihar region.
If whether Act applies to reliable buildings outside of Bihar province was the major issue that was decided. Whether the trust created in this situation was a private or public trust had to be determined by the court. The question of whether the Bihar legislature should pass legislation regarding such a trust that is located in Bihar and other assets connected to that trust that are located outside of Bihar was decided. By using the geographical linkage theory, the Supreme Court determined that the Act might have an impact on trust assets located exterior of Bihar, however only to the degree that these assets were connected to the trust there where the trustees were serving. Better administration of Hindu trustees in the state of Bihar is the goal of the said Act. Because the trust is based in Bihar, the State has the authority to enact laws governing it, as well as the trustees, staff, and brokers who must be present in Bihar to run the trust.
A limitation on the judiciary's ability to invalidate a statute with extraterritorial application has been inserted to Article 245. Undoubtedly, the court has the authority to interpret laws and determine their legality, but Article 245 of the Constitution itself places a constraint on that power. However, the next time such an extraterritorial operation is granted, the judiciary's role is called into doubt. Extraterritorial activities are acceptable, as was addressed in the sections above, if there is a clear connection between the extraterritorial characteristics and causes and anything pertaining to India or Indians. Such extraterritorial operations essentially involve creating some kind of "degree of link" between India's interests and welfare and the extraterritorial implementation of a law. Therefore, the issue of how to identify the existence of such a link and whose entity has the authority to do so emerges.
CONCLUSORY NOTE AND SUGGESTIONS
The judicial system is supposed to safeguard the Constitution and retain the essential nature of constitutionalism prevalent. However, the court is constrained in order to avoid excessive activity or any sort of extra territorial activity, which is why the idea of limited jurisdiction powers has developed. Because of this, it is essential that the legislative branch and the judicial branch cooperate. It must be subject to judicial scrutiny whether the Legislature creates the connection within the statute or chooses not to do so. In order to promote the very goal for which this doctrine was developed where seamless cross-border negotiations and exchanges, a broad inference must be provided, even to those laws where no real connection has been offered.
Shachor-Landau, C. (1980). Extra-Territorial Penal Jurisdiction and Extradition. The International and Comparative Law Quarterly, 29(2/3), 274–295. <http://www.jstor.org/stable/758967>
Julian D. M. Lew. (1978).The Extra-Territorial Criminal Jurisdiction of English Courts. The International and Comparative Law Quarterly, 27(1), 168–214. <http://www.jstor.org/stable/758867>
SCOTT, J. (2014). Extraterritoriality and Territorial Extension in EU Law. The American Journal of Comparative Law, 62(1), 87–125. <http://www.jstor.org/stable/43669504>
Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction. (1985). Harvard Law Review, 98(6), 1310–1330. <https://doi.org/10.2307/1340945>
Colangelo, A. J. (2011). A UNIFIED APPROACH TO EXTRATERRITORIALITY. Virginia Law Review, 97(5), 1019–1109. <http://www.jstor.org/stable/41261539>
Clopton, Z. D. (2016). Territoriality, Technology, and National Security. The University of Chicago Law Review, 83(1), 45–63. <http://www.jstor.org/stable/43741591>
Messineo, F. (2012). “GENTLEMEN AT HOME, HOODLUMS ELSEWHERE”? THE EXTRA-TERRITORIAL EXERCISE OF POWER BY BRITISH FORCES IN IRAQ AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS. The Cambridge Law Journal, 71(1), 15–18. <http://www.jstor.org/stable/23253773