Internal Aid to Construction

WITH AID OF CONSTRUCTION

2013

1. INTRODUCTION

Laws enacted by the legislatures are interpreted by the judiciary. Enacted laws, specially the modern Acts and Rules, are drafted by legal experts and it could be expected that the language will leave little room for interpretation or construction. But the experience of all, who have to bear and share the task of application of law, has been different. It is quite often observed that courts are busy unfolding the meaning of ambiguous words and expressions and resolving inconsistencies. The age old process of the application of the enacted laws has led to formulation of certain rules of interpretation or construction. “By interpretation or construction is meant”, says Salmond, “the process by which the courts seek to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed”. A statute is an edict of the Legislature and the conventional way of interpreting and construing a statute is to seek the intention of its maker. A statute is to be construed construed according “to the intent of them that make it” and “the duty of judicature is to act upon the true intention of the legislature the mens or sentential legis.” The term interpretation means “To give meaning to”. Governmental power has been divided into into three wings namely the legislature, the executive and the judiciary. Interpretation of statues to render justice is the primary function of the judiciary. It is the duty of the Court to interpret the Act and give meaning to each word of the Statute. The most common rule of interpretation is that every part of the statute must be understood in a harmonious manner by reading and construing every part of it together. The maxim “A Verbis legis non est recedendum” means that you must not vary the words of the the statute while interpreting it. The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. In Santi swarup Sarkar v pradeep kumar sarkar, the Supreme Court held that if two interpretations are possible of the same statute, the one which validates the statute must be preferred.

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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2. KINDS OF INTERPRETATION

There are generally two kind of interpretation; interpretation; literal interpretation and logical interpretation. 2.1 Literal interpretation

Giving words their ordinary and natural meaning is known as literal interpretation or litera legis. It is the duty of the court not to modify the language of the Act and if such meaning is clear and unambiguous, effect should be given to the provisions of a statute whatever may be the consequence. The idea behind such a principle is that the legislature, being the supreme law making body must know what it intends in the words of the statute. Literal interpretation has been called the safest rule because the legislature’s intention can be deduced only from the language through which it has expressed itself. itself. The bare words of the Act must be construed to get the meaning of the statute and one need not probe into the intention of the legislature. The elementary rule of construction is that the language must be construed in its grammatical and literal sense and hence it is termed as litera legis or litera script. The Golden Rule is that the words of a statute must prima facie be given their ordinary meaning. This interpretation is supreme and is called the golden ru le of interpretation. 1

In Ramanjaya Singh v Baijnath Singh, the Election tribunal set aside the election of the appellant under s 123(7) of the Representation of People’s Act, 1951 on the grounds that th at the appellant had employed more persons than prescribed for electioneering purpose. The appellant contended that the excess employees were paid by his father and hence were not employed by him. The Supreme Court followed the grammatical interpretation of S 123(7) and termed the excess employees as volunteers. 2

In Maqbool Hussain v State of Bombay, the appellant, a citizen of India, on arrival at an airport did not declare that he brought gold with him. Gold, found in his possession during search in violation of government notification, was confiscated under S 167 (8) Sea Customs Act, 1878. He was charged under sec. 8 of the Foreign Exchange Regulation Act, 1947. The appellant 1 2

(1955) 1 SCR 671 : AIR 1954 SC 749. [1953] S.C.R. 730. CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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pleaded that his trial under the Act was violative of Art 20(2) of the constitution constitut ion relating to double jeopardy as he was already punished for his act by was of confiscation of the gold. It was held by the Supreme Court that the sea customs authority is not a court or a judicial tribunal and the confiscation is not a penalty. Consequently his trial was valid under the Act of 1947. In Madan Mohan v K.Chandrashekara, it was held that when a statute contains strict and stringent provisions, provisions, it must be literally literally and strictly construed co nstrued to promote the object of the act. In Bhavnagar University v Palitana Sugar Mills Pvt Ltd,3 it was held that according to the fundamental principles of construction the statute should be read as a whole, then chapter by chapter, section by section and then word by word. 4

In Municipal Board v State Transport Authority, Rajasthan, an application against the change of location of a bus stand could be made within 30 days of receipt of order of regional transport authority according to s 64 A of the Motor vehicles Act, 1939. The application was moved after 30 days on the contention that statute must be read as “30 days from the knowledge of the order” The Supreme Court held that literal interpretation must be made and hence rejected the application as invalid.

2.1(a) Exceptions to the rule of literal interpretation

Generally a statute must be interpreted in its grammatical sense but under the following circumstances it is not possible:-

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Logical defects

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ambiguity

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inconsistency

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incompleteness or lacunae

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unreasonableness

2002 AIR SCW 4939. [1963] Supp. 2 S.C.R. 373. CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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2.2 Logical interpretation

If the words of a statute give rise to two or more construction, then the construction which validates the object of the Act must be given effect while interpreting. It is better to validate a thing than to invalidate it or it is better the Act prevails than perish. The purpose of construction is to ascertain the intention of the parliament. par liament. 2.2(a) The mischief rule

The mischief rule of interpretation originated in Heydon’s case. If there are two interpretations possible for the material words o f a statute, then for sure and true interpretation there are certa in considerations in the form of questions. The following questions must b co nsidered: What was the common law before making the Act? What was the mischief and defect for which the co mmon law did not provide a remedy? What is the remedy resolved by the parliament par liament to cure the disease of the comm co mmon on wealth? The true reason of the remedy. re medy. The judge should always try to suppress the mischief and advance the remedy. The mischief rule says that the intent of the legislature legislature behind the enactment should be followed.

2.2(b) Rule of casus omissus

Generally, the court is bound to harmonize the various provisions of an Act passed by the legislature during interpretation so that repugnancy is avoided. Sometimes certain matters might have been omitted in a statute. In such cases, they cannot be added by construction as it amounts to making of laws or amending which is a function of legislature. A new provision cannot be added in a statute giving it meaning not otherwise found therein. A word omitted from the language of the statute, but within the general scope of the statute, and omitted due to inadvertence is known as Casus Omissus.


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In Padma Sundara Rao v State of Tamil Nadu it was held that the cassus omissus cannot be supplied by the court except in the case of a clear necessity and when reason for it is found within the four corners of the statute itself. Rule of Ejusdem Generis

Ejusdem generis means “of the same kind”. Generally particular words are given their natural meaning provided the context does not require otherwise. If general words follow particular words pertaining to a class, category or genus then it is construed that general words are limited to mean the person or thing of the same general class, category or genus as those particularly exposed. Eg: if the husband asks the wife to buy bread, milk and cake and if the wife buys jam along with them, it is not invalidated merely because of not specifying it but is valid because it is of the same kind. The basic rule is that if the legislature intended general words to be used in unrestricted sense, then it need not have used particular words at all. This rule is not of universal application. In 6

Devendra Surti v State of Gujarat, under s2 (4) of the Bombay shops and Establishments Act, 1948 the term commercial establishment means “an establishments which carries any trade, business or profession”. profession”. Here the word profession profession is associated associated to business or trade and hence a private doctor’s clinic cannot be included in the above definitions as a s under u nder the t he rule ru le of o f Ejusdem 7

Generis. In Grasim Industries Ltd v Collector of Customs, Bombay, the rule of Ejusdem Generis is applicable when particular words pertaining to a class, category or genus are followed by general words. In such a case the general words are construed as limited to things of the same kind as those specified. Every clause of a statute must be construed with reference to other clauses of the Act.

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(2002) 3 SCC 533. [1969] 1 SCR 235. 7 AIR 2002 SC 1706. 6


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3. INTERNAL AIDS TO CONSTRUCTION

Statute generally means the law or the Act of the legislature authority. The general rule of the interpretation is that statutes must prima facie be given this ordinary meaning. If the words are clear, free from ambiguity there is no need to refer to other means of interpretation. But if the words are vague and ambiguous then internal aid may be sought for interpretation. 3.1 Context

If the words of a statute are ambiguous then the context must be taken into consideration. The context includes other provisions of the statute, its preamble, the existing state of law and other legal provisions. The intention behind the meaning of the words and the circumstances under which they are framed must be considered. 3.2 Title

Title is not part of enactment. So it cannot be legally used to restrict the plain meaning of the words in an enactment. 3.3 Long title

The heading of the statute is the long title and the general purpose is described in it. E.g. Prevention of Food Adulter ation ation Act, 1954, the long title reads as follows “An Act to make provisions for the prevention of adulteration adulteration of food”. In Re Kerala Education bill, the Supreme Court held that the policy and purpose may be deduced from the long title and the preamble. In Manohar Lal v State of Punjab,8 Long title of the Act is relied as a guide to decide the scope of the Act.

3.4 Short Title

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AIR 1968 SC 488.


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The short title of the Act is purely for reference only. The short title is merely for convenience. E.g. The Indian Penal Code, 1860.

3.5 Preamble

The Act Starts with a preamble and is generally small. The main objective and purpose of the Act are found in the Preamble of the Statute. “Preamble is the Act in a nutshell. It is a preparatory statement. It contains the t he recitals showing the reason reas on for enactment of the Act. If the language of the Act is clear the preamble must be ignored. The preamble is an intrinsic aid in the interpretation of an ambiguous act. 9

In Kashi Prasad v State, the court held that even though the preamble cannot be used to defeat the enacting clauses of a statute, stat ute, it can be treated as a key ke y for the interpretation of the statute.

3.6 Headings

A group of Sections are given under a heading which act as their preamble. Sometimes a single section might have a preamble. S.378-441 of IPC is “Offences against property”. Headings are prefixed to sections. They are treated as preambles. If there is ambiguity in the words of a statute, headings can be referred. re ferred. In Durga Thathera v Narain Thathera,10 the court held that the headings are like a preamble which helps as a key to the mind of the legislature but do not control the substantive section of the enactment. 3.7 Marginal notes

Marginal notes are the notes that are printed at the side of the section in an Act and it summarizes the effect of the section. They are not part of the statute. So they must not be

9

AIR 1974 587

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AIR 1978 254


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considered. But if there is any ambiguity they may be referred only as an internal aid to the construction. In Wilkes v Goodwin, the Court held that the side notes are not part of the Act and hence marginal notes cannot be referred.

3.8 Exemptions

An exemption clause in a taxing statute must be, as far as possible, liberally construed and in favour of the assessee, provided no violence is done to the language used. “It is true that an exemption provision should be liberally construed, but this does not mean that such liberal construction should be made even by doing violence to the plain meaning of such exemption provision. Liberal construction will be made wherever it is possible to be made without impairing the legislative requirement and the spirit of the provisi pro vision.” on.”

3.9 Provisos

The normal function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. “The main function of a proviso is to carve out an exception to the main enactment. It cannot, normally, be so interpreted as to set at naught the real o bject of the main enactment.” A proviso cannot be held to control the main enactment or to withdraw, by mere implication, any part of what the main provision pro vision has given. But it cannot canno t enable something so mething to t o be done which is not to be found in the enacting clause itself, on the ground that otherwise the proviso would be meaningless and senseless. “There may be cases in which the language of the statute may be so clear that a proviso may be construed as a substantive clause. But whether a proviso is construed as restricting the main provision or o r as a substantive clause, it cannot be divorced d ivorced from the provision to which it stands as a proviso. It must be construed harmoniously harmoniously with the main enactment.”


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3.10 Explanation

Sometimes an Explanation is added to a section to elaborate upon and explain the meaning of the words appearing in the section. Such an Explanation becomes an integral part of the main enactment. “An Explanation to a statutory provision has to be read with the main provision to which it is added as an Explanation. An Explanation appended to a section or a sub section becomes an integral part of it and has no independent existence apart from it. There is, in the eye of law, only one enactment, of which both the section or sub section and the Explanation are two inseparable parts. In the absence o f anything repugnant in the subject or o r context, co ntext, the words and a nd expressions used in the Explanation are to be given the same meaning as given to them in the main provision itself.” The purpose of an Explanation is not to limit the scope of the main section. An Explanation is quite different in nature from a proviso; pro viso; the latter excludes, excepts and restricts while the former explains, clarifies or subtracts or includes something by introducing a legal fiction. “An Explanation may be appended to a section to explain the meaning of the the words used in the section. There is no presumption that an Explanation which is inserted subsequently introduces something new which was not present in the section before. Ordinarily, an Explanation is inserted to clear up any ambiguity in the section and it should be so read as to harmonise it with the section and to clear up any am biguity in the main section.” “The normal principle in construing an Explanation is to understand it as explaining the meaning of the provision to which it is added; the Explanation does not enlarge or limit the provision, unless the Explanation purports to be a definition or a deeming clause; if the intention of the Legislature is not fully conveyed earlier or there has been a misconception about the scope of a provision, the Legislature steps in to explain the purport of the provision; such an Explanation has to be given effect to, as pointing out the real meaning of the provision all along.”


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3.11 Exceptions and savings clause

To exempt certain clauses from the preview of the main provisions, and exception clause is provided. The things which are not exempted fall within the purview purview of the main enactment.

The saving clause is also added in cases of repeal and re-enactment of a statute. 3.12 Non-obstante clauses

“A non-obstante non-obstante clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary in the provision mentioned in such non-obstante clause. In case there is any inconsistency or a departure between the non-obstante clause and another provision, one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail prevail over the other clause.”

3.13 Punctuation

“There are three activities serially set out in that sub-clause, sub-clause, namely, construction, manufacture or production. A comma co mma is, therefore, legitimately and as per the rules of grammar, requ ired after the first activity to separate it from the second activity of manufacture. Since the second activity is followed by the word “or”, no comma is r equired equired after the second activity to separate it from the third activity. Therefore, punctuation is put as grammatically required. It does not disclose any intention of providing for a separate kind of business altogether. Punctuation, in any case, is a minor element in the construction of a statute. Only when a statute is carefully punctuated and there is no doubt about its meaning can weight be given to punctuation. It cannot, however, be regarded as a controlling element for determi det ermining ning the t he meaning of a statute.”


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3.14 Definition/ Interpretation clause

The legislature can lay down legal definitions of its own language, if such definitions are embodied in the statute itself, it becomes binding on the co urts. When the act itself provides a dictionary for the words used, the court must first look into that dictionary for interpretation. In Mayor of Portsmouth v Smith, the court observed “The introduction of interpretation clause is a novelty.”

3.15 Conjunctive and Disjunctive words

The word “and” is conjunctive and the word “or” is disjunctive. These words are often interchangeable. The word ‘and’ can be read as ‘or’ and ‘or’ can be read as ‘and’.

3.16 Schedule

The Schedules appended to a statute form part of it. They are generally added to avoid encumbering the statute with matters of excessive details, guidelines to work out the policy of the statute, transitory provisions, rules and forms which need frequent amendment and the like. Much importance is not given to the forms unless they contain requirements of a mandatory nature. Schedules form part of a statute. They are at the end and contain minute details for working out the provisions of the express enactment. The expression in the schedule cannot override the provisions of the express enactment.

3.17 Illustrations

Illustrations in enactment provided by the legislature are valuable aids in the understanding the real scope.


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3.18 Meaning of the words

The definition of the words given must be construed in the popular sense. Internal aid to construction is important for interpretation.


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4. WITH AID OF CONSTRUCTION

Apart from the intrinsic aids to construction, such as preamble and the purview of the Act, the Court can consider resources outside the Act, called the extrinsic aids, in interpreting and finding out the purpose of the Act. Where the words of an Act are clear and unambiguous, no recourse to extrinsic matter, even if it consists of the sources of the codification, is the intrinsic aids, such as preamble and purview o f the Act. Sources outside the Act called extrinsic e xtrinsic aids. These resources deal mainly with the history of the Act, both with the prior events leading up to the introduction of the Bill, Select Committee reports.

External aids to interpretation of statutes include Parliamentary History, Historical Facts and Surrounding Circumstances, Later Scientific Inventions, Reference to other

Statutes

(pari

materia) & Use of Foreign Decisions. Each of the above mentioned constituents of external aids to construction have been dealt briefly in the due course of my work.

4.1 PARLIAMENTARY HISTORY

The ingredients of Parliamentary History are the bill in its original form or the amendments considered during its progress in the Legislature, Speech of the minister who introduced the bill in the Parliament which is also referred to as Statements of Objects and Reasons, Reports of Parliamentary debates and resolutions passed by either House of the Parliament and the Reports submitted different Parliamentary Committees. According to the traditional English view the Parliamentary History of a statute was not considered as an aid to construction. The Supreme Court of India in the beginning enunciated the rule of exclusion of Parliamentary History in the way it was traditionally enunciated by the English Courts but on many an occasion, the court used this aid in resolving questions of 11

construction.

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Refer Generally, Singh G.P., Principles of Statutory Interpretation, 221 (Wadhwa and Company, Nagpur, Tenth Edition, 2006) CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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In Indira Sawhney v. Union of India, while interpreting Article 16(4) of the Constitution the Supreme Court referred to Dr. Ambedkar‟s speech in the Constituent Constituent Assembly as the expression backward class of citizens’ is not defined. The court held that reference to Parliamentary debate is permissible to ascertain the context, background and objective of the legislatures but at the same time such references could not be taken as conclusive or binding on the courts. Thus in the Mandal Reservation Case, the Supreme Court resorted to Parliamentary History as an aid to interpretation. 13

In the Ashwini Kumar’s Case (1952), the then Chief Justice of India Patanjali Shastri quoted that the Statement of Objects and Reasons should not be used as an aid to interpretation because in his opinion the Statement of Objects and Reasons is presented in the Parliament when a bill is being introduced. During the t he course of the processing of the bill, it undergoes u ndergoes radical changes. 14

But in the Subodh Gopal’s Case (1954), Justice S.R. Das although he fully supported Chief Justice Patanjali Shastri‟s views in the Ashwini Kumar’s Case but he wanted to use the Statement of Objects and Reasons to protect the sharecroppers against eviction by the new buyers of o f land since zamindari system was still not abolished and land was still st ill not the t he property of the farmers. So Justice S.R. Das took the help of Statements of Objects and Reasons to analyse the social, legal, economic and political condition in which the bill was introduced. 15

In Harsharan Verma v. Tribhuvan Narain Singh, the appointment of Tribhuvan Narayan Singh as the chief minister of Uttar Pradesh was challenged as at the time of his appointment he was neither a member of Vidhan Sabha nor a member of Vidhan Parishad. While interpreting Article 164(4) of the Constitution, the Supreme Court held that it did not require that a Minister should be a Member of the Legislature at the time of his being chosen as such, the Supreme Court referred to an amendment which was rejected by the Constituent Assembly requiring that a Minister at the time of his being chosen should be a member of the Legislature.

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Indira Sawhney v. Union of India, AIR 1993 SC 477. Ashwini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369. 14 State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92. 15 Harsharan Verma v. Tribhuvan Narain Singh, AIR 1971 SC 1331. 13


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4.2 HISTORICAL FACTS AND SURROUNDING CIRCUMSTANCES CIRCUMSTANCES

Historical facts are very essential to understand the subject matter of the statute or to have regard to the surrounding circumstances which existed at the time of passing of the statute. The rule of admissibility admissibility of o f this external aid is especially useful in mischief rule. The ru le that was laid down 16

in the Heydon’s Case (1584), has now attained the status of a classic. The mischief rule enables the consideration of four matters in construing an act : 

What was the law before the making of the Act?

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What was the mischief for which the law did not provide?

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What was the remedy provided by the Act?

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What was the reason of the remedy? 17

This rule was applied in Bengal Immunity Co. v. State of Bihar in the construction of Article 286 of the Constitution in which the Supreme Court held that a state has the legislative competence to impose sales tax only if all the ingredients of a sale have a territorial nexus. Thus on the same transaction sales tax cannot be imposed by several states. Since the function of the court is to find the meaning of the ambiguous words in a statute, a reference to the historical facts and surrounding circumstances that led to the enactment assist the t he courts in efficient administration of speedy justice. The rule permits recourse to historical works, engravings, pictures and documents where it is important to ascertain ancient facts of a public nature. Historical evolution of a provision in the statute is also sometimes a useful guide to its 18

construction.

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See., Heydon‟s Case(1584), as available ava ilable in www.westlaw.com as accessed on 25th February,2008 at 3:45p.m. IST. 17 Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661. 18 R. v. Ireland, (1997) 4 All ER 225 CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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4.3 LATER SCIENTIFIC INVENTIONS

The laws made in the past are applied in the present contemporary society in the light of changed social, political, legal and economic circumstances taking into consideration the advancement in science and technology. Statutes must be interpreted in accordance with the spirit of the Constitution of India even though the statutes were passed before independence of India or before the commencement of our Constitution. The case State v. J.S. Chawdhry19 relates to Section 45 of the Indian Evidence Act, 1872 which only mentions about handwriting experts and not typewriting experts for the reason that typewriters were invented much later than 1872.In the instant case the state wanted to use the opinion of a typewriting expert as evidence in a murder case. The Supreme Court then overruled 20

its decision in the case Hanumant v. State of Madhya Pradesh which held that the opinion of the typewriting expert was inadmissible as evidence in the court of law. State of Maharashtra v. Dr. Prafulla Desai 21 case relates to Section 388 of the Indian Penal Code which deals with gross medical negligence resulting in the death of the patient. The prosecution wanted to produce the statements of a New York Doctor Dr.Greenberg as evidence. The problem arose when Dr.Greenberg refused to appear in the Indian Court to record his statements. There is no such provision which can compel a witness residing outside the domestic territory of India to come to an Indian court as a witness. Thus in such circumstances video conferencing became the only viable option. But the accused opposed video conferencing under Section 273 of Criminal Procedure Code which clearly says that evidence can be recorded only in the presence of the accused. The Supreme Court interpreted presence not merely as physical presence but as a situation in which the accused can see, hear and question the witnesses.

4.4 REFERENCE TO OTHER OTHER STATUTES STATUTES

Statutes must be read as a whole in order to understand the words in their context. Problem arises when a statute is not complete in itself i.e. the words used in the statute are not explained clearly. 19

State v. J.S.Chawdhry, AIR 1996 SC 1491. Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343. 21 State of Maharashtra v. Dr. Prafulla Desai, AIR 2003 SC 2053 20


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Extension of this rule of context permits reference to other statutes in pari materia i.e. statutes dealing with the same subject matter or forming part of the same system. The meaning of the phrase pari materia was explained in an American Case, United Society So ciety v. Eagle Eag le Bank (1829) in the following words: “Statutes are in pari materia which r elate elate to the same person or thing, or to the same class of persons or things. The word par must not be confounded with the word similes. It is used in opposition to it intimating not likeness merely but identity. It is a phrase applicable 22

to public statutes statutes or general laws made at different times and in reference to the same subject”. 23

In the case, State of Punjab v. Okara Grain Buyers syndicate Ltd., Okara, the Supreme Court held that when two pieces of legislation are of differing scopes, it cannot be said that they are in pari materia. However Ho wever it is not necessary that the entire subject matter in the statutes should be be identical before any provision in one may be held to be in pari materia with some provision in the other. 24

In the case State of Madras v. A. Vaidyanath Aiyer, the respondent, an income tax officer was accused of accepting bribe. The Trial Court convicted him and awarded a rigorous imprisonment of six months. When an appeal was made in the High Court, the High Court set him free on the ground of a possibility that he might have borrowed the money and not accepted it as bribe. The Supreme Court held the accused guilty and made an observation that the judgement of the High Court was extremely perverse. In the instant case, the Supreme Court held that Section 4 of the Prevention of Corruption Act,1947, which directs that on proof that the accused has accepted any gratification other than legal remuneration, it shall be presumed unless the contrary is established by the accused that the gratification was accepted as bribe, has been held to be in pari materia with subject matter dealt with by the Indian Evidence Act,1872; and the definition shall presume in the Indian Evidence Act has been utilized to construe the the words „it shall be presumed in presumed in section 4 of the Prevention of Corruption Act,1947.

22

See., Sigh G.P., Principles of Statutory Interpretation, 275(Wadhwa and Company, Nagpur, Tenth Edition, 2006) State of Punjab v. Okara Grain Buyers syndicate Ltd.,Okara, AIR 1964 SC 669. 24 State of Madras v. A.Vaidyanath Aiyer,AIR 1958 SC 61 23


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4.5 USE OF OF FOREIGN DECISIONS

Reference to decisions of the English Courts was a common practice in the administration of justice in pre independent India. The reason behind this was that the Modern Indian Legal System owes its origin to the English Common Law System. But after the commencement of the Constitution of India as a result of the incorporation of the Fundamental Rights, the Supreme Court of India gave more access to American precedents. It cannot, however, be doubted that knowledge of English law and precedents when the language of an Indian Act was not clear or express, has often been of valuable assistance. Speaking about Indian Codes Shri M.C.Setalvad has stated: “Where the language of the code was clear and applicable, no question of relying on English Authority would arise. But very often the general rule in the Indian Code was based on an English Principle and in such cases the Indian Courts frequently sought the assistance of English Decisions to support the conclusions they reached. They could not otherwise for not only the general rules contained in the codes but some of the illustrations given to clarify the general rules were based on English decisions.”

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In the case General Electric Company v. Renusagar Power Company, the Supreme Court of India held that when guidance is available from Indian decisions, reference to foreign decisions may become unnecessary. Different circumstances may also result in non acceptance of English precedents by the Indian 27

Courts. In the case M.V.Elisabeth v. Harwan Investment and Trading Pvt. Ltd., the Supreme Court differed from English decisions and interpreted the words damage caused by a ship in Section 443 of the Merchant Shipping Act, 1958 as not limited to a physical damage caused by a ship by reason of its coming into contact with something; it intended to include damage to the cargo carried in a ship. The Supreme Court in this case differed in its opinion because in India there is no other Act covering claim of damages for damage to the cargo carried in a ship but in England this subject is covered expressly by a d ifferent Act.

25

See., Setalvad M.C., The Common Law in India , 61 as cited in Singh G.P., Principles of Statutory Interpretations, 327(Wadhwa and Company, Nagpur, Tenth Edition, 2006). 26 General Electric Company v. Renusagar Power Company, (1987)4 SCC 137. 27 M.V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., AIR 1993 SC 1014. CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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5. CONCLUSION

The chief source of law is legislation, though there are other sources of law such as precedents and customs. Every source of law finds its expression in a language. Often the language has a puzzling effect, i.e., it masks and distorts. Often it is found that the language o f a statute is not clear. The words used in the statute too at times seem to be ambiguous. Sometimes it is not possible to assign the dictionary d ictionary meaning to certain words used in legislation. Meaning which is to be assigned to certain words in a legislation. Even the dictionary does not give the clear cut meaning of a word. This is so because the dictionary gives many alternative meanings applicable in different contexts and for different purposes so that no clear field for the application of a word is easily identified. So long as expansion of meaning takes place uniformly, the law will develop along healthy lines. But if one judge takes the narrow view and the other the broad view, the law will mean different things for different persons and soon there will be confusion. Hence, it is necessary that there should be some rules of interpretation to ensure just and uniform decisions. Such rules are called rules of interpretation. There are various aids to the rule of interpretation and in case the ambiguity is not removed even after applying the internal aids, then the external aids can come in handy. They provide various methods by the help of which a statute can be interpreted and used by the judiciary in deciding cases.


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BIBLIOGRAPHY Books

Statutes, Dr. Avtar Singh, lexis nexis pub., 2009 1. Introduction to the Interpretation of Statutes, Dr. Statutes, Vepa P.Sarathi, 5th P.Sarathi, 5th edition, 2010 2. Interpretation of Statutes, Vepa Statutes, Prof. T. Bhattacharyya, 8th Bhattacharyya, 8th edition, 2012 3. The Interpretation of Statutes, Prof. 4. Maxwell on the Interpretation of Statutes, Maxwell, revised by P. St. J.Langan, J.Langan, 12th

edition, reprint 2011

Webliography

www.google.com (search engine) 1. www.lexisnexis.com 2. www.legalservices.com 3. www.legalsutra.com 4. www.legallyindia.com 5. www.indiankanoon.com 6. www.manupatra.org Articles 1. http://indiankanoon.org/doc/1304152/ 2. attorneygeneral.gov.mu/...Z%20Acts/.../INTERPRETATIONGENERAL ... 3. www.oas.org/juridico/spanish/mesicic2_guy_interpretation_act .pdf 4. www.mpil.de/.../the_interpretation_of_laws_and_general_clauses_act.pdf. 5. lawcommissionofindia.nic.in51 -100Report0.pdf 6. www.opc.gov.au/calc/docs/Loophole_paper www.opc.gov.au/calc/docs/Loophole_paper sGloverAug2011.pdf sGloverAug2011.pdf


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Internal Aid to Construction

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