Generally, the state has the authority to make the laws only to the citizen of
the state or to the property that lies in the state. This is the general
understanding that how can an authority make law over those persons or property
which do not come under its competency. Suppose, if A, a citizen of Saudi
Arabia, is licensed by the government there to drive.
In the territory of India,
a law is there related to negligent driving that any person who is found driving
negligently shall be penalized for 6 months imprisonment in case of rash
driving. Shall this law apply to A? the answer is surely no. It is very simple
to understand that the practice of driving of A in Saudi Arabia has no
territorial linkage with India because the subject matter of the act of driving
of taxi by A in Saudi Arabia and the law enacted by the Indian parliament has no
Neither A is a citizen of India nor India has any territorial
authority over the land of Saudi Arabia. Now, what will happen if A who is a
citizen of India practices driving in Saudi Arabia gets arrested for rash
driving? Here, by the doctrine of territorial nexus, A shall be penalized as per
the Indian Penal Code under section 279. Section 3 and 4 of the Indian Penal
Code deals with the territorial nexus of crime taken place beyond the territory
Section 3 talks about the punishment for any criminal act which is
done by the citizen of India outside the boundaries of India shall be dealt with
as per the provisions of the Indian Penal Code. Section 4 also deals with the
punishment to any offense outside India which shall be done as per IPC including
offenses done in aircraft or ships.
Constitutional Validity of Extra-territorial laws:
The laws made by parliament are not invalid merely because of extraterritorial
impact as per Clause 2 of Article 245 [[i]]. For the whole country, the
parliament can make a law but the state legislature can make laws only for the
state. The parliament can enact laws beyond its territories but one thing is
compulsorily needed for this which is territorial nexus that is the real
connection with 'India'[[ii]].
India is a sovereign country and it can make laws
for those issues which have a real connection with it. article 245 has an
independent source of Power [[iii]]. The parliament may enact legislation that
has an impact beyond the territories in the interest of the people who are
native of India but it did not have powers to make laws for any other territory
beyond India [[iv]]. In State (NCT of Delhi) v. Brijesh Singh
[[v]], it was
stipulated in Para 23 that the statutes which are made by the Sovereign Nation
States cannot be invalidated merely on the grounds of extraterritoriality.
The need for extra-territorial laws:
The states are interdependent. There are so many facts with extra-territorial
aspects which have a nexus with the territory of any nation [[vi]]. it would
surely be impossible to exercise legislative powers in a proper and full-fledged
effective manner if there will be no extraterritorial operations as such
[[vii]]. Then the competency of the legislature shall be in question and the
legislature will be limited only to its territory [[viii]]. But is a common
understanding that the center has also authority over all of the citizens and it
is entitled to protect their rights of them. We can say that center is the
father of every citizen.
If the child does any wrongful act in another's house
it is only the father who has authority to punish him. Others can do only the
complaint of the child to his father for his wrongful acts. Also, if for the
rights of child father has to go beyond the territory of his house to premises
of other, he will go. So, parliament can make a law beyond the territories for a
bona fide purpose and the law must have a nexus with India.
In the case of Wallace vs. Income Tax Commissioner
[[ix]] there was a British company that was
controlled and managed in the UK. It was carrying the business in India from
Britain and was making a huge profit here. The court here held that the
government of India could levy taxes to the whole income of the company as the
company has the territorial nexus with India [[x]].
The laws can be for economic purposes, monetary matters, trade, and commerce,
social, fiscal purposes, regarding carbon emissions, for the maintenance of
peace and security, etc. [[xi]].
When A State Law Can Have Such Extra-Territorial Impact:
Clause 1 of Article 245 says that the state legislature can make laws only for
the state. A similar doctrine also applies here i.e territorial nexus. If there
is any territorial linkage between the state and the subject matter of the law
passed by the state legislature, then the law shall not be void and shall remain
in application. It is so because the co-existence of sovereignty and the
operation of extra-territorial laws in question makes the emergence of the
doctrine of territorial nexus [[xii]].
Implementation of territorial laws
enhances the smoothness of administration. Generally, one state tries to
implement such laws which favor its interests in the other state for the
trade-in that state which is in the variance of the laws and the policies of
another state. Then the nexus plays a great role as to clarify the validity of
the law. [[xiii]]
In the case of State of A. P. v. National Thermal Power Corp. ltd
. [[xiv]] It
was contended by hon'ble coram that in a case when a legislature has an
extraterritorial operation, it has to be enacted by the parliament only. The
state legislations have always a territorial nexus and that territorial nexus
must be actual and in a true sense.,
In G. V. K. industries' case
, it was contended that "clause 2 of article 245 of
Indian constitution doesn't give the legislature an unhinged power to go beyond
the territories of India as to enact laws. Clause 1 of the same specifies that
the parliament may make a law to a whole or any part of India. If the passed
legislature has neither any nexus with India nor it is made for the purpose to
benefit India then the statute will be called in question. Clause 2 of Article
245 will come into the picture only when the parliament will have the power to
make laws for any other territory except India" [[xv]].
It is assumed that the state shall make a law only for its citizen.
The law can be made for the benefit of the natives that will satisfy their
interests. Therefore, the nexus is checked which clarifies the validity of the
There is no general formula to determine the sufficient territorial nexus
[[xvi]]. It is a question of fact and "the interpretation of the extent of the
territorial nexus" is observed and examined by the courts. It is also known that
the power to quash a law with extraterritorial impact is within the courts only.
Thus, judicial activism and rule of law become very important tools. By these
only, efficiency in the functioning of the legislature in making and applying a
law can be accessed.
- The Constitution of India Art 245
- Dr. Dharmendra Kumar Singh, 'Constitutional Space And Legislative
Development In India On Extra-Territorial Operation Of Law' https://ili.ac.in/pdf/dks.pdf.
- V.N. Muralidharan, 'Extra-Territorial Jurisdiction Under the Constitution
of India: An Analytical Study with Particular Reference to Tax Issues' (2013) 9
- J. Venkatesan, Parliament can legislate in respect of extraterritorial
- (2017) 10 SCC 779
- AIR 1948 PC 118
- M. P. Jain, Indian Constitutional Law, (8th ed, Lexisnexis 2020) Pg 533
- Supra. Note iii, V.N. Muralidharan.
- Girish R, 'Constitutional Governance of Extra-Territorial Operation of
Indian Law' (2017) 7 GJLDP (October) 7
- A. V. Lowe, 'The Problems of Extraterritorial Jurisdiction: Economic
Sovereignty and the Search for a Solution' (1985), The International and
Comparative Law Quarterly, 34(4), 724–746 <http://www.jstor.org/stable/759196>
- State of A.P. v. National Thermal Power Corpn. Ltd (2002) 5 SCC 203 also
see 20th-century finance Corpn. ltd. V. the State of Maharashtra (2000) 6 SCC 12
- GVK Industries Ltd. v. ITO, (2011) 4 SCC 36
- Supra. Note ix, M. P. Jain, Page 534