Presumption against Extra-Territorial Operation of Statute

Presumption against Extra-Territorial Operation of Statute

The Presumption in the United Kingdom is that an Act of Parliament generally applies within its territory only unless provided otherwise. Provision may, however, be made in a statute that the statute applies to all subjects of the United Kingdom whether living within its territory or abroad. Similarly, foreigners who stay in the United Kingdom are subject to jurisdiction of the English courts. There may be clearly stated exceptional situations in a statute wherein foreigners living abroad may also be subject to the English jurisdiction. The general principle of private international law is that land is subject exclusively to the laws of the State within whose territory it lies, the nationality, residence and domicile of the owner of the land being all irrelevant. Cheshire, Private International Law (7th Edition), p. 501 Again, according to private international law, movable property has generally no other situs than that of its owner, and in accordance with this principle statutes dealing with such property will generally be construed so as to affect all the property of persons domiciled in England wherever situated, hut not that of persons domiciled abroad even though the property be in England. Maxwell, Interpretation of Statutes (12th Edition) p. 176

In India, as in the United Kingdom, the general presumption is against extra-territorial operation of statutes. But that does not bind the Parliament to legislate only in its territory, Article 245 (2) of the Constitution of India clearly states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. Since international law recognizes that a nation may legislate for all its subjects and to all things and acts within its territory including its ships and aircraft wherever they may be, and that the foreigners may be subject to the laws of the nation on whose territory they stay, similar laws may be passed by nations. The Indian Penal Code follows this principle. Section 3 of the Code says that ‘any person liable, by any Indian law, to be tried for an offence committed beyond Indian shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India,’ and Section 4 states that the provisions of this Code apply also to any offence committed by (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be’.

To facilitate the expulsion of a foreign national from India, he can be detained in India. Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta, AIR (1955)SC367

A foreign national who is likely to continue indulging himself in activities which are prejudicial to the security and integrity of India, as he has been doing in the past, can be prevented from leaving India to go to a foreign country. G. D. Singh v. Government of India, AIR (1973) SC 2667

Criminal conspiracy is an offence of a continuing nature and so overt acts of criminal conspiracy are committed at Dubai or Chandigarh are immaterial and thus the offence can be tried be India without obtaining permission of the Central Government as is required under section 188 of the Code of Criminal Procedure, 1973 for offences committed outside India but triable in India under section 4 of the Indian Penal Code, 1860. Ajay Agarwala v. Union of India, AIR (1993) SC 1521

In view of article 245 (2) of the Constitution of India, questions of extra-territoriality of any enactment can never be raised in the municipal courts as a ground for challenging its validity. The legislation may offend the rules of international law, may not be recognized by foreign courts, or there may be practical difficulties in enforcing them but these are questions of policy with which the domestic tribunals are not concerned. A. H. Walia v. Commissioner of Income Tax, AIR (1949) FC 18, per Kania C.J.

Interpretation of the words ‘last resided’ in section 488 (8) of the Code of Criminal Procedure, 1898 was involved. The Supreme Court of India held that these words mean last resided in the territory of India because the Code extends to the whole of India. Jagir Kaur v. Jaswant Singh, AIR (1963) SC 1521

The Supreme Court of India observed in his minority opinion that the powers of the Union and the State under sections 99 (1) and 100 of the Government of India Act, 1935 as also under articles 245 (1) and 246 of the Constitution of India in respect of the matters mentioned in their respective lists have the same content and quality and if the legislation with extra-territorial operation is within the competence of the Union of India, it is equally within the competence of the State. The words extra-territorial operation are used in two different senses as .connoting firstly, laws in respect of acts or events which take place inside the State but have operation outside, and secondly, laws with reference to the nationals of a State in respect of their acts, outside; in its former sense, the laws are strictly speaking intra-territorial though loosely termed extra-territorial and under article 245 (1) it is within the competence of the Parliament and the State legislature to enact laws with extra-territorial operation in that State. The Laws with extra-territorial operation in article 245 (2) must be understood in their sense as having reference to the laws of a State for their nationals in respect of acts done outside the State. Otherwise, the provision would be redundant as regards legislation by Parliament and inconsistent as regards laws enacted by States. It is further observed that a law enacted by the Indian legislature in respect of the matters enumerated in the appropriate lists would be valid provided it is for the territory entrusted to their charge; whether it was so or not would depend on whether there was sufficient territorial Connection between the person sought to be charged or proceeded against under the law and the country which enacts the law; and when such connection exists, the law is not, strictly speaking, extra-territorial, and it is not ultra vires on the ground that the person is not residing within the State which enacts the law. Bengal Immunity Company v. State of Bihar, AIR (1955) SC 661 per Venkatarama Ayyar J. 

A State legislation can be successfully challenged on the ground of its extra-territorial operation because the power to make a law having extra­territorial operation is conferred only on the Union Parliament by article 245 of the Constitution of India. The laws made by the State Legislatures generally have a limited extent within the boundaries of the concerned State. K. K. Kochuni v. State of Madras, AIR (1960) SC 1080

Interpretation of section 77 of the Estate Duty Act, 1953 was involved. Under this provision a person who is required to pay the estate duty in respect of property of another person is authorized to sell that property of the other person to raise the amount or me estate duty. The Supreme Court of India held that this provision does not authorize the sale of the property of another person who is not domiciled in India. Commissioner of Income Tax, Kerala v. Malayalam Plantation, AIR (1964) SC 1722

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