1. CODIFYING AND CONSOLIDATING STATUTES 1 Codifying statutes Codifying Acts are passed to codify the existing law. It is one which purports to state exhaustively the whole of the law upon a particular subject including preexisting and common laws. The purpose of codifying statute is to present an orderly and authoritative statement of the leading rule of law on a given subject. Ex: Code of Civil Procedure, 1908 Codification systematizes case-law as well as statutes The codifying Act is presumed not to alter the law unless a contrary intention appears. Lord Herschell observed that the principles applicable for construction of codifying statutes are two: a Firstly, the language of the statute should be examined; and b Secondly, natural meaning of the statute should be lo c oked for without getting influenced by any considerations as to previous state of law. The law should be ascertained by interpreting the language used, instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, an appeal to earlier decisions can only be justified on some special ground.(Bank of England v. Vagliano Brothers, 1891 AC). Acc. To Crawford – “The object of a revision or codification…. Is to clarify existing statute law and make it easily found. Consequently it is really more than a mere restatement. A re examination of the exiting statute law is necessarily implied. But the restatement may be in the original language of the statute. Or words and phrases may be altered, new matter incorporated, and statutes even omitted from the revision or codification. And after the revision or codification has been adopted, it becomes the reservoir of all the statute law on the subjects indicated by various titles; the revision being a substitute for the displacing the former law. As a result, any errors must be corrected by legislative amendments after the revision or code has been enacted into law… Not only may the statutes composing the codification be relocated but their language may also be changed. Generally, however, the revision is simply a restatement of existing statute law, either in the same or in substantially the same language. Where this is true, the old statutes are continued without any change in their meaning, but in many instances, the language of existing statutes are substantially altered; words may be added or omitted; phraseology and punctuation changed. In such instances, however, there is a presumption that the legislature did not intend to change the meaning of the statute, unless the intent to do so is clearly apparent. Where it is the intent of the legislature to make a change in the statutes meaning it must be given effect… a code is simply a part of the statutory law and has no higher standing or sanctity than an ordinary statute. Accordingly, where there is ambiguity in the revised statute, it should be construed as expressing the law as it was prior to the revision, unless the court finds a clear intention to alter the old law”. Acc to Sutherland, Statutory Construction, Vol. 3, “A statute incorporated into a code is presumed to be incorporated without change even though it is re-worded
and re-phrased and in the organization of the code its original sections are separated. Where, however, the legislative intent is clear that a change in the law is intended, the new provision prevails. In case of ambiguity it is permissible to resort statute, prior legislative history of the Act, the form and language of the prior statute, prior interpretation and all matters in pari materia in order to arrive at the true meaning of the Code’s provision”. 2. Consolidating statutes A consolidating statute is one which collects the statutory provisions relating to a particular topic, and embodies them in a single Act of Parliament, making only minor amendments and improvement. The purpose consolidating statute is to present the whole body of statutory law on a subject in complete form on particular branch of law. Ordinarily, no change of law is intended in a consolidation Act. For the object of the Act was merely to “reproduce the law as it stood before”. For ex: The long title of the Code of Criminal Procedure, 1973 is “An Act to consolidate and amend the law relating to Criminal Procedure”. A consolidating statute is often not a mere compilation of earlier enactments. The very object of consolidation is to collect the statutory law bearing upon a particular subject, and to bring it down to date, in order that it may form a useful Code applicable to the circumstances. Purely consolidated statute the presumption is thatParliament does not intend to alter the existing law applies with particular force. For the object of the Act was merely to ‘reproduce the law as it stood before.’ Words used in the consolidating Act bear the same meaning as that which they had at the time the enactments consolidated were passed. Such a statute is not intended to alter the law. Hence, it is relevant to refer to the previous state of the law or to judicial decisions interpreting the repealed Acts for purpose of construction of corresponding provisions in the consolidating Act.
When the consolidation Act gives no guidance as to its proper interpretation only then it is permissible to refer to the repealed enactments for guidance. But when the consolidation Act is not ambiguous or obscure recourse to repealed enactment should not be done. Prior statutes repealed, but reproduced in substance, are regarded as in pari materia, and judicial decisions on the repealed statute are treated as applicable to substantially identical provisions of the repealing Act’. The primary rule of construction of a consolidation Act is to examine the language used in the Act itself without any reference to the repealed statutes. It is only when the consolidation Act gives no guidance as to its proper interpretation that it is permissible to have recourse to repealed enactments. Three types of Consolidation: a Pure consolidation i.e re-enactment, b Consolidation with correction and minor improvements, and c Consolidation with Law Commission amendments. Difference.
a. Consolidating statutes is the combination of the statutes relating to a given subject- matter. It does not contain the case-law. b. consolidating statute should be interpreted according to the normal canons of constructions and recourse to repealed enactments can be taken only to solve any ambiguity. c. The primary rule of construction of a consolidating statute is to examine the language used in the statute itself without any reference to the repealed statutes. 3. Amending statutes Any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an Act purporting to amend, repeal, revise, or supplements or by an Act independent and or original in form, is treated as amendatory. Whole enacting an amending law, that an existing provision shall be deleted and a new provision substituted. a Clarification When the legislature amends to clarify things it does not necessarily mean that the original Act did not include and cover those things. Amendment offers a convenient method of curing a defect in an unconstitutional Act. Amendments are often made to clear up ambiguities and such amendments which are intended to prevent misinterpretation do not in themselves alter the law in any way. b Settling conflict of decisions To end as far as possible the conflict of old decisions. c Repealing obsolete enactment To repeal enactments which have ceased to be in force or have become obsolete. d Effect of Amendment on Parent Statute The amendment will be given a reasonable construction: a literal construction which would lead to absurd consequences will be avoided. When the intention of the legislature is not clear from its language, the court will consider surrounding circumstances such as title, legislative proceeding and report of the committee. Amendment not to incorporate something inconsistent with or repugnant to object of Act. A change in the law of procedure operates retrospectively and unlike the law relating to vested right, is not only prospective. The promulgation of an amending Act cannot without any express term take away from a party any right which might be vested in him under a prior Act.
2. DELEGATED LEGISLATION-I Judical Interpretation on Subordinated Legislation/ delegated legislation/ secondary rules/ subsidiary rule making authority in India. Delegated Legislation Tremendous importance - Bulk of the rules which governs people comes not from the legislature but from the administrators Legislation of Parliament is not complete, unless read with rules & regulations Delegated legislation - “that which proceeds from any authority other than the sovereign power & is, therefore, dependent for its continued existence & validity on some superior or supreme authority” (Salmond) Need for delegated legislation Exigencies of the modern state - Social & economic reforms Parliament only passes skeletal legislation Between 1973 to 1977 - 302 laws & approximately 25, 414 orders & rules
Pressure upon the Parliament - Even if in continuous session, the Parliament can not give the quantity & quality laws required
Technicality - Subject matter of legislation may be technical & require consultation with experts
Flexibility & experimentation - Cannot foresee all contingencies - Power is given to executive to meet unforeseen contingencies - Rapid amendment
Emergency - Quick action is required
Confidential matters - If public interest demands the nondisclosure until coming into operation - Ex: imposition of restriction on private ownership
Direct participation in the structuring of law Though useful & inevitable, cannot be more - Administration may take away the right - Norm of jurisprudence of delegation must be followed
I
Forms of Delegated Legislation Rule: Sec.3 (51) of the General Clause Act, 1891, contains a definition of ‘Rule’ in the following words “rule shall mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made under any enactment’. ‘Circulars’ or instructions which have been issued under the Act will have force of law. Notification issued for the purpose of brining into operation the enabling Act or to grant exemptions from its provisions or to extend its operation to new persons or objects.
Bye laws are conferred on local authorities and statutory or other undertakers ‘for regulating the conduct of persons within their areas or resorting to their undertaking’. And the bye-laws are generally subordinated to the rules and regulations, if any to be made under the enabling Act. II Constitutional Limits of Legislative Delegation The legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate “uncanalised and uncontrolled power. Only delegation of ancillary or subordinate legislative functions. It is the duty of the court to strike down without hesitation any arbitrary power conferred on the executive by the legislature. It is settled that the legislature, except when authorized by the constitution, cannot create a parallel legislature or abdicate its functions in favour of some outside authority. Legislature cannot delegate its power to repeal a law or even to modify it in essential feature. The delegated legislation must be consistent with the Parent Act and must not violate legislative policy and guidelines. Sub-delegation of legislative powers in order to be valid must be expressly authorized by the parent act. If the parents Act is repealed, notification issued under it would also stand repealed unless saved by the repealing act. In re, Art. 143, Constitution of India Is said to be the bible of delegated legislation. Seven Bench Judge heard the case and produced seven separate judgment. Sec. 2 of Part C States Laws Act, 1950, which confers authority on the Central Government to extend to Part C States laws in force in other states. The analysis of Sec.2 and decision is as follows: Power is conferred to extend not only existing but also future laws. This has been upheld. Parliament has conferred the authority on the Central Government not only to extend laws enacted by it but also laws enacted by State Legislatures which have no legislative jurisdiction in Part C States. This has also been upheld. Power is conferred to extend these laws “with such restrictions or modifications’ as the Central Government may think fit. Power to repeal is considered to be a essential legislative functions. Sec. 2 of the UP Zamindari Abolition and Land Reforms Act, 1951, confers power on the state government to extend the act to other areas in the state to which it was not initially applied. Held: “It is well settled that the legislature may leave it to the executive to apply the provisions of an Act to different times on various consideration” Edward Mills v. State of Ajmer AIR 1955 SC 25 S. 27 of the Minimum Wages Act, 1948 - Power of appropriate Government to add to the schedule any employment in respect of which it is of opinion that
minimum wages shall be fixed - Challenged as excessive delegation without the legislative policy Held: Not invalid - Legislative policy is apparent - “Avoiding exploitation of labour due to unequal bargaining power or other reasons” Hamdard Dawakhana v. Union of India AIR 1960 SC 554 The Parliament passed the Drugs & Magic Remedies (Objectionable Advertisements) Act, 1954 - To check the mischief being done to the innocent patients suffering from certain incurable diseases through advertisements claiming magic remedies. In other words to control advertisement of certain drugs. S. 3 - Laid down the list of diseases for which advertisement was prohibited and - Authorized the Central govt. to include any other disease in the list. Petitioner faced difficulty in the publicity of certain products - 4 December 1958, the Drugs Controller, Delhi, intimated to the petitioners that the provisions of S. 3 of the Act had been contravened by them and called upon them to recall their products sent to Bombay and other States - Correspondence bet. the petitioner & authorities - 40 products were stopped from sale Challenged Held: The Court held Sec. 3 bad as nowhere had the legislature laid down any policy guidance of the government in the matter of selection of diseases for being included in the list. There it is excessive delegation - Legislature has not laid down any policy for guidance to the govt. in the matter of selection of diseases. comment: After the Delhi Law Act cases, this is the first case in which a central act was held ultra vires on the ground of excessive delegation. Hinsa Vrodhak Sangh v. Mizrapur Moti Kuresh Jamat, AIR 2008 SC 1892 Supreme Court held under: ‘The power conferred on the state government to make rules is only for the purpose of carrying out the purposes of the act and not de hors the same. Rules cannot be framed in matters that are not contemplated under the Act’. The rule-making power is a species of delegated legislation. A delegate therefore can make rules only within the four corners thereof. III
Norms of jurisprudence of delegated legislation.
Power of delegation is a constituent element of legislative power.
Essential legislative functions cannot be delegated - Legislative policy
Non-essential powers may be delegated, however numerous & significant they may be
Essential legislative functions are to be determined on case to case basis
Very broad general statements may constitute the legislative policy
Delegated legislation must be consistent with the parent Act
Delegate cannot have more power than that of the delegator
Sub-delegation must be authorized by the parent Act
Delegated legislation must not be unreasonable & must not violate any procedural safeguards
3. DELEGATED LEGISLATION-II Judicial Interpretation of Delegated Legislation. : The courts should make a cautious approach in construing the subordinate legislation and adopt almost the same standard as adhered to in interpreting legislation enactments. Maxwell opined: ‘Where Parliament has delegated its legislative function to a Minister of the Crown without retaining any specific control over the exercise of that function by the minister the court has the right and duty to decide whether the Minister has acted within the limit of his delegated power’. 1
Enabling act is ultra vires the constitution.
Chintamanroa v. State of M.P AIR 1954 SC CP Regulation of Manufactures of Bidis Act, 1948, provides wide discretionary power to the Deputy Commissioner to fix the agricultural season and prohibit the manufacture of bidis. The DC imposed a total ban on the manufacture of bidis. Held: This amount to unreasonable restriction on the exercise of the fundamental right and, hence, both Commissioner’s order and the Act are ultra vires the Constitution. 2
The delegated legislation is ultra vires the constitution The enabling Act may not be ultra vires the constitution, yet the rules and regulations framed there under may violate any provision of the constitution.
Himmat lal k. Shah v. Commissioner of Police, AIR 1973 Sec. 33(1) of the Bombay Police Act, 1951 had authorized the commissioner of Police to make rules for regulation of conduct and behavior of assemblies and processions on or along the streets. Rule 7 made there under provided that no public meeting will be held without previous permission of the commissioner. Held: The rule was held ultra vires on the ground that the arbitrary discretion vested in the administrative agency in granting or refusing permission amount to unreasonable restriction on the exercise of freedom of speech and expression. 3
Rulemaking authority is ultra vires the enabling act
The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rule cannot be made to supplant the provisions of the enabling Act but to supplement it. The delegate is not authorized to make a provision beyond the policy of the Act. The rule of interpretation is that if subordinate legislation is directly repugnant to any well-established principle of statute… it is either ultra vires altogether, or must, if possible, be so interpreted as not to create an anomaly. If reconciliation were found to be impossible between the section and the rules made there under them, the rule so made must give way. Rules must be read together with the Act under which they are made, cannot repeal or contradict express provisions in the Acts from which they derive their authority, and if the Act is plain, the rule must be interpreted so as to be reconciled with it. Statutory rules may do anything within the scope of the Act. When the Act regulating mining leases assures the lessee the right to carry on mining operations during the entire period of lease and provides for premature termination only after giving a hearing to the lessee, the delegate cannot while making a rule in exercise of the power granted under the Act make a provision for termination of all the leases forthwith without notice or hearing to the leases. (State of T.N. v. P. Krishnamurthy, AIR 2006 SC). The delegate cannot override the Act either by exceeding the authority or by making provisions inconsistent with the Act. The delegate has to exercise the power of making subordinate legislation in accordance with procedure prescribed, if any. In considering the effect of noncompliance of a procedural provision of the Act, one has to see whether the non-compliance relates to a mandatory or a directory provision. In the former case the defect will be fatal; whereas in the latter case the defect will be ignored. Kerala Samasthana Chethu Thozhilali Union v. State of Kerala, AIR 2006 SC. The Kerala Abkari Act seeks to control and regulate various categories of intoxicating liquor including Arrack and Toddy. In 1996 the state of Kerala banned the sale of Arrack. Sec. 29 of the Act confers power to make rules for the purpose of this Act. In 2002 the Government made Kerala Abakari Shops Dipsosal Rules, 2002, Rule 4 of which required that Arrack worker must be employed in all Toddy shops. But the Act did not contemplate any such matter and the rule was declared invalid. Held: ‘Rules cannot be framed in matters that are not contemplated under the Act’.
The statutory rules framed under the powers conferred by an Act become integral part of the Act, Dwarka Nath v. Municipal Corporation AIR 1971 SC. Prevention of Food Adulteration Act, 1954 empowered the Central Government under … Sec. 23(1) to make rules for restricting the packing and labeling of any article of food with a view to preventing the public from being deceived or misled as to quantity and quality of the article. Rule 32 framed thereunder by the government provided that there shall be specified on every label name and business address of the manufacturer, batch number or code number either in Hindi or English. Action was initiated against “Mohan Ghee Laboratories, Delhi-5” was written. Held: Requirement of address under Rule 32 is in excess of the power of the parent act which is restricted to “quantity and quality” only. Hence, rule 32 is ultra vires of the Act as it was beyond the power conferred on the government. Rules enacted under the statute should in nexus with object and scope of the Act
State of Karnataka v. H. Ganesh Kamath, AIR 1983 SC Sec. 7(7)(a) of Motor Vehicle Act, 1939 provides that a person who passes the test in driving a heavy motor vehicle is to be deemed also to have passed the test in driving any medium motor vehicle. Rule 5(2) provides that even though a person has passed the test for driving heavy motor vehicle he cannot obtain a licence unless he has already possessed a licence for and has two year experience for driving medium motor vehicle Supreme Court held: “Conferment of rule-making power by an Act does not enable the rule-making authority to make rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto”.
4. DELEGATED LEGISLATION-III 4
Unreasonable, Arbitrary and discriminatory Unreasonableness is one of the grounds of judicial review of delegated legislation. Reasonableness of a statute or otherwise must be judged having regard to the various factors which, of course, would include the effect thereof on a person carrying on a business.
Unreasonable restriction on fundamental right (14 &19) the court can invalidate an administrative rule.
Article 14 strikes at every arbitrariness in state action. West Bengal Electricity Board v. Desh Bandhu Gosh, AIR 1985 SC Regulation 34 of the W.B Electricity Board which provided for termination of services of permanent employees by giving three months notice or on payment of salary for the said period. Held: It is totally arbitrary and hence violative of Art. 14 of the constitution. Meenakshi v. University of Delhi, AIR 1989 SCC A condition requiring schooling for last two years in any school in Delhi for admission to medical colleges in Delhi was held to be arbitrary and unreasonable.
Air India v. Nagesh Meerza West Bengal Electrictiy Board v Desh Bandhu Gosh, AIR 1978 SC The limit of the delegated power should be strictly defined by the statute; in other words, the delegated authority shall act strictly within the parameters of the authority delegated to it under the Act If the interest of any particular section of the community are likely to be affected, it should be consulted by the delegated authority before the regulations are made. 5. That is mala fide
Retrospectivity of Delegated Legislation The rule-making authority does not possess plenary power to give the subordinate delegated legislation retrospective operation unless and until that power is expressly conferred by the parent enactment. Taxation by delegated legislation No tax, fee or any compulsory charge can be imposed by any bye-law, rule or regulation unless the statute under which the subordinate legislation is made specifically authorizes the imposition. Even when a power to tax is expressly conferred by the enabling Act, it must be exercised within strict limits of the authority conferred by the Act. Conclusive evidence clause Trust Mai Lachhmi Sialkoti Bradari v. Amritsar improvement Trust, AIR 1963 SC. Sec. 3 of the Punjab Development and Damaged Areas Act, 1951, empowers the Improvement Trust to frame Schemes for development of ‘damaged areas’ as defined in the Act. Sec. 4 makes provision for publication of schemes with a view to invite objections which are to be considered under sec. 5 The scheme, as originally framed or as modified, is published by the state government under sec. 5(4) of the Act declares that ‘the publication under sub-
section (3), shall be conclusive evidence that a scheme has been duly framed and sanctioned. Supreme Court a scheme, although notified under sec. 5(3), will not be a valid scheme, if it did not relate to a ‘damaged area’ as defined under the Act. Rules as aid to construction of ambiguous statutes Where the construction of the Act is ambiguous and doubtful on any point, or where more than one construction is possible recourse may be had to the rules which may have been made by the rule making authority thereunder. Notification When a notification is issued in accordance with power conferred by the statute, it has statutory force If two constructions are possible to adopt, a meaning which would make the provision workable and in consonance with the statutory scheme should be preferred. Bye-laws It is not an agreement, but a law binding on all persons to whom it applies Construction of rules or bye-law Rules are meant only for the purpose of carrying out the provisions of the Act. For ex: R 84 under the Uttar Pradesh Zamindari Abolitionn and Land Reforms Rules 1952 taking away the discretion of the compensation officer under s 69 to deposit or not to deposit the amount of compensation payable to a limited owner cannot be accepted. When reasons are required to be stated for making delegated legislation e.g., grant of exemption from taxation, reasons must be stated and they can be examined for deciding whether the delegate has acted within limits of the power conferred. IV
Parliamentary control Every delegate is subject to the authority & control of the principal - Exercise of the power can be directed, corrected or cancelled by the principal Jain & Jain - “It is the function of the legislature to legislate, but if it seeks to give this power to the executive in some circumstances, it is not only the right of the legislature, but also its duty, as principal, to see how its agent carries out the agency entrusted to it. Since it is legislature which delegates legislative power to the administration, it is primarily for it to supervise & control the actual exercise of this power, and ensure against the danger of its objectionable, abusive & unwarranted use by the administration”
a
Direct general control - Proceedings in Parliament * Debate on the delegating bill - Necessity, extent, type of delegation etc * Asking questions & giving notice for discussion * Moving resolution on urgent matter, when the reply of the govt. is unsatisfactory * Vote of grant - Member may propose a cut on the budget demands of a ministry * Directions by the speaker to refer to a committee to examine the extent of powers sought to be delegated
b
Direct special control - Laying on the table of the legislature Extensively used in England - Statutory Instrument Act, 1946 - Administrative rule-making is subject to the supervision of the Parliament - Immediate effect but subject to annulment by either House * Laying with no further direction - Simply to inform the Parliament * Laying subject to negative resolution - Effect soon after laying on the table of the House, but shall cease if annulled * Laying subject to affirmative resolution (i) Rules having no effect until approved (ii) Cease to have effect unless approved by any affirmative resolution * Laying in draft subject to negative resolution - Draft rules to be placed on the table, which shall come into force after a specified period, unless disapproved * Laying in draft subject to an affirmative resolution - Power of modification India - No statutory provision for laying all delegated legislation - May be provided in the individual statute - Ex: Representation of the Peoples Act 1951, Indian Services Act 1951, Indian Development & Regulation Act 1951, Indian Tariff (Amendment) Act 1950 etc. Legal consequences of non-compliance with laying provision Void in England India - Depends on the nature of provisions in the enabling Act
“Administrative Law — Subordinate/Delegated Legislation — Implementation of Court orders/Compliance with judicial precedents: Promulgation of Rules to nullify/not comply with court orders is not permissible. Though Government has the prerogative to frame service rules in one way or the other, subject to judicial review on settled principles, it is impermissible to exercise rule-making power in such a way as to nullify/not comply with court orders, and the latter also amounts to contempt of court. Hence, costs of Rs. 50, 000 imposed upon Govt. of Bihar for non-compliance with Supreme Court order in Bihar State Govt. Secondary School Teachers Assn. v. Bihar Education Service Assn., (2012) 13 SCC 33, whereby respondents refused to grant all admissible benefits of merger of cadres as directed by Court. [Bihar State Govt. Secondary School Teachers Assn. v. Ashok Kumar Sinha] [(2014) 7 SCC 416]”
5. DELEGATED LEGISLATION-IV
V
Procedural control Allowing the specific audit of the rules by those for whose consumption they are made
a
Drafting By an expert draftsman, who is aware of its intra vires nature - The rules in Australia are either drafted or checked by parliamentary draftsmen - India suffers from poorly drafted rules
b
Antenatal publicity No separate law in India - In some cases the parent acts have provided - Ex: Central Tea Board Act, 1949, Charted Accountants Act, 1912 etc. Section. 23 of the General Clauses Act, 1897: Previous Publication There is no uniform procedure in India for making subordinate legislation, except in the case of rules or bye-laws made under those Central Acts or Regulations which impose the condition of ‘previous publication’ which brings into play the procedure prescribed in section 23.
Rules to be published in draft in the Gazette
Objections & suggestions to be invited
Objections & suggestions to be considered There is no general principle that previous publication of subordinate legislation is necessary; it is necessary only when the statute so requires. Further, the requirements of previous publication does not give any right to the objectors of being orally heard. Wide-spread use in USA - Administrative Procedure Act, 1946
c
Consultation with affected persons Democratic process - Makes the administrative rule-making acceptable & effective If the legislator cannot scrutinize the rules, at least the affected must be given an opportunity No general rule in India - Enabling act may provide - The nature is dependent on the wordings of parent legislation - Mandatory, if some consequences are provided for noncompliance - Ex: S. 16(5) of the Electricity (Supply) Act, 1948 Requirement of consultation Where enabling acts contain provisions which lay down the requirement of previous consultation with some named agency. Consultation is obligatory only when so provided in the enabling statute and not otherwise.
Official consultation with a named body - Banking Companies Act - Prior consultation with RBI
d
Consultation with Administrative Boards - The Mines Act, 1901 which provides ‘no regulation or rule shall be made unless the draft thereof has been referred to every Mining Board has had a reasonable opportunity of reporting as to the expediency of making the same and to the suitability of its provisions’. - Prior consultation with the Administrative Boards established under the Act- It has been held that requirement of consultation is mandatory.
Consultation with a statutory board in charge of a particular subject - Tea Board Act, 1953 - Consultation by govt. before framing rules
Consultation with interested persons - Industrial Development & Regulation Act - Representation from industry & public
Preparation of rules by the affected persons - Mines Act, 1901 - Mine owners to draft rules for the safety & prevention of accidents in mines
Postnatal publicity Fundamental principle of law is that “ignorance of law is no excuse”(Ignorantia juris non excusat). Public must have access to the law and they should be given an opportunity to know the law. Publicity is necessary - Must be accessible to public Jain & Jain - “It is essential that adequate means are adopted to publicize the rules so that people are not caught on the wrong foot in ignorance of rules applicable to them in a given situation” England: Rule of Publication Act, 1893 which required publication of statutory rules and orders. Statutory Instrument Act, 1946, provides that the rules shall not come into force unless published.
USA: Before 1935 there existed no machinery for publication of delegated legislation. Federal Registration Act, 1935 The Act establishes a Federal Register and provides for publication of all federal rules, regulations, orders, and other documents of general applicability and legal effect. Unless it is so published it cannot be enforced against any person. Administrative Procedure Act, 1946
Sec. 4 (c) defers effectively of the rules by 30 days from the date of publication so that everyone gets an opportunity of knowing them, unless the agency decides otherwise in public interest. After publication of rules in the Federal Register, the rules are classified, indexed and codified under the provisions of sec. 311(a) of the Federal Register Act. India No general law in India unlike England and America- Differs from statute to statute - Official Gazette / Free choice of the authority - Stipulated mode must be followed. Section 23, General Clauses Act, 1897 provides conclusive evidence clause that publication in the Official Gazette of the rules or bye law has been duly made. State of Maharashtra v. M. H. George AIR 1965 SC 722 Guidelines regarding the mode of publication; i Mandatory statutory requirement regarding the mode must be followed ii Where there is no statutory requirement - Published in the usual form iiiIn India, publication in the Official Gazette is the ordinary method of bring a rule to the notice of persons concerned. State of Orissa v. Sridhar Kumar AIR 1985 SC 1411 The Orissa Municipal Act, 1950 - State govt. to publish the notification in the Official Gazette & local newspaper to hear objections - Published in English in a local news paper - Held not sufficient Publication as a corollary of natural justice Harla v. State of Rajasthan AIR 1951 SC 467 1922 - Maharaja of Jaipur died - Successor was minor - Council of Ministers was appointed by the Crown representative - Passed Jaipur Opium Act, 1923 by a resolution - Never published Appellant was prosecuted for possessing excess opium - Challenged the validity. Court observed “Unlike Parliamentary legislation which is publicly made, delegated legislation or subordinate legislation is often made unobtrusively in the chambers of a minister, a secretary to the governor or other official dignitary. It is, therefore, necessary that subordinate legislations, in order to take effect, must be published in some suitable manner, whether such publication is prescribed by the parent statute or not”. Held: The rules of natural justice demand the publication before enforcement. It must be broadcast in some recognizable way so that all men may know what it is, or, at the very least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. Generally comes into force on the date of publication.
B.K Srinivasan v. State of Karnataka, AIR 1987 SC Where the statute itself required the publication of the delegated legislation and where the finding was that there was publication as required by the statute, the Supreme Court made some general observation which support the view that publication in some suitable form, even if not specifically required by the statute, is essential for making the delegated legislation effective. The Principles enunciated In Harla’s case and Shrinivasan’s case which is still the law, requires some form of publication before delegated legislation can be effective. But that principle also does not require communication of any general rule, regulation etc. to each and every individual affected thereby,, and it would be sufficient if the same is published in such manner that person can, if they are interested, acquaint themselves of its contents. If a question arises as to when was a particular order or rule was made or notification issued, the material date is the date of Gazette publication as required by the statute and not the date of publication in a newspaper or the media. Defect in publication
Govindlal v. Agricultural Produce Market Committee, AIR 1962 SC. The draft notification was required under the Parent Act to be published in official Gazette as well as in Gujrati in a newspaper having circulation in the area concerned. The notification was issued in the Official Gazette but it was not published in Gujrati. Held: Requirement of publication in Gujarati was mandatory and notification was invalid. VI Sub-Delegation When a statute confers legislative powers on an administrative authority and that authority further delegate those powers to another subordinate authority or agency, it is called sub-delegation. Delegate on whom power to make subordinate legislation is conferred cannot further delegate that power. Judicial or quasi-judicial power conferred by a statute cannot be delegated except when specifically permitted. A discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority.
Ganapati Singhji v. State of Ajmer, AIR 1955 SC. The enabling Act conferred power on the Chief Commissioner to make rules for the establishment of proper system of conservancy and sanitation at fairs. The Chief Commissioner made rules empowering the District Magistrate to devise his own system and see that it was observed. Held: Rules to be ultra vires as the enabling Act conferred power on the Chief Commissioner and not on the District Magistrate. Therefore, sub-delegation was declared invalid.
The Parent Act permits sub-delegation to authorities or officers not below a particular rank. In such a circumstance the power can be delegated only to those officers or authorities.
A.K Roy v. State of Punjab, AIR 1966 SC. Sec. 20(i) of the Prevention of Food Adulteration Act, 1954, the power to initiate prosecution for offences was given to the state government. Acting under Rule 3 of the Prevention of Food Adulteration (Punjab) Rules, 1958, the state government delegated the aforesaid power to Food Inspector, who prosecuted the accused for commission of offences under the Act. Held: The terms of Sec. 20(1) of the Act do not postulate delegate by the person so authorized and therefore, the complaint which was filed by the Food Inspector cannot be maintained.
6. DICTIONARY 4. Dictionaries When a word is not defined in the act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in dictionary. It is elementary that the meaning of a staute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms….where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion. (Camminetti v. United States, 242 U.S) In selecting one out of the various meanings of a word, regard must always be had to the context of the Act. When context makes the meaning of the word clear, other dictionary meaning become irrelevant. The view of Krishna Aiyar, J: “Dictionaries are not dictators of statutory construction where the benignant mood of a law, more emphatically, the definition clause furnishes a different denotation.” If diverse meanings of words are given in a dictionary, then court should always keep in mind the context in which a word has been used in choosing the correct meaning of the word.
In the words of Jeevan Reddy, J: ‘A statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme, context and to the legislative history’. If the Act does not define a word, the legislature must be taken to have used that word in its ordinary dictionary meaning. When the context makes the meaning of word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meaning a word is capable of. A statute is not to be interpreted merely from a ‘lexicographer’s angle’; in built policy of the legislature as discernible from the object and scheme of the Act must be given effect to.
Kanwar Singh v. Delhi Administration, AIR 1965 SC. While construing Section 418(i) of the Delhi Municipal Corporation Act, 1959 observed: It is the duty of the court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of the legislature, which is to suppress a mischief, the court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief. Employees State Insurance Corporation v. Tata Electric and Locomotive Company, AIR 1976 SC Whether apprentice is employee under Employees State Insurance Act, 1948 - apprentice means person who is undergoing apprenticeship training in designated trade in pursuance of contract of apprenticeship - held, apprentice is not an employee. The question was whether the respondents were bound to contribute monetarily under the Employees State Insurance Act, 1948 in respect of apprentices of the company. The dictionary meaning of the word apprentice shows that impart some kind of training by the company to the apprenticeship under mutually agreed terms and conditions. Held: Even if the apprentice is paid some money by the company, this does not make him an employee of the company. State of Uttar Pradesh v. Kores (India)Ltd. AIR 1977 SC. The appellant issued a notification under section 3-A of U.P Sales Tax Act, 1948 under which sale of paper was also to be taxed. The question was whether carbon paper was paper for the purpose of the notification. Held: ‘Paper’ not being defined in the enactment has to be understood in its popular and commercial sense. Ordinarily paper is used for writing, printing or packaging purposes and carbon paper is not used for any such purpose. It is a special kind of paper manufactured through a special process and is used making copies of document. Therefore, carbon paper was not intended to be covered under the notification . Thalappalam Ser. Coop. Bank Ltd. V. State of Kerala 2013 (12) Scale 527 The Court had to consider the scope of the expression ‘substantially financed’, occurring repeatedly in the Right to Information Act, 2005. The Court placed reliance on the definitions given in the Oxford English Dictionary and Black’s Law Dictionary, to hold that the aforementioned expression would mean that funding ought to be so substantial to the body that it ran by such funding and it would struggle to exist if the funding was withdrawn. 5. Text Books and Encyclopedias Text books may be referred to by the courts to arrive at the true meaning of an enactment. For ex: Manu, Jajnavalkya, Vijnaneswar, Jimutvahan and kautily have been frequently quoted by courts with approval.
For example in Kesavanad Bharati v. State of Keral where a large number of text books were quoted in arriving at the decision. Ram Lal v. State of Rajasthan, (2002) I SCC Whether camel milk was also included under the Prevention of Food Adulteration Rules 1955. The Supreme Court referred to Encyclopedia Americana (vol.5, p 263) where it is mentioned that the milk of camel is nutritious. World Book Encyclopedia it is said that ‘millions of people who live in Africa and Asia depend on camels to supply most their needs….for people who live deep in the deserts, camel are almost the only source of transportation, food, clothing, the shelter….they drink camel’s milk and also make cheese from it. The milk is so rich and thick that it forms hard lumps in tea or coffee’
7. DOCTRINE OF NOSCITUR A SOCIIS (A Word is known by the company it keeps) The meaning of a word is to be judged by the company it keeps. Maxwell explained it as “Associated words take their meaning from one another under the doctrine of Noscitur a Sociis, philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it”. For example, in context of the words ‘horse, cow or other animal’, the word ‘animal’ would refer only to brutes. As stated by the Privy Council: “It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them”. According to Maxwell, means that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take their colour from each other, that is, the more general is restricted to a sense analogous to a less general. Associated words take their meaning from one another under the doctrine of noscitur a sociis, the philosophy of which is that the meaning of the doubtful word may be ascertained by reference to the meaning of words associated with it. State of Assam v Ranga Mohammad, AIR 1967 SC The respondent filed a petition for the issue of a quo warranto questioning the right of the appellant to transfer and post a District Judge. Art. 233(10) provides “ Appointment of persons to be, and the posting and promotion of, District Judges in any state shall be made by the Governor of the state in consultation with the High Court exercising jurisdiction in relation to such state. In construing the word ‘posting’ as it occurs in Art. 233(1) of the constitution in association with words ‘appointment’ and ‘promotion’ the Supreme Court held that the word ‘Posting’ took its colour from the associated words and meant “the assignment of an appointee or promote to a position in the cadre” and not his transfer from one station to another.
In Rainbow Steels Ltd v. Commissioner of Sales Tax, Uttar Pradesh, AIR 1981 SC The State Government as per a notification taxed “old, discarded, unserviceable or obsolete machinery, stores or vehicles etc. at the rate of five percent. The appellant agrued and the court agreed that invoking the principle of Noscitur a Sociis the expression ‘old’ which is more general should be restricted to a sense analogous to that of the less general expressions, namely “discarded, unserviceable or obsolete” and read in this manner the sale of the power plant could not be regarded as sale of “old” machinery falling within the Entry. Pradeep Agarbatti, Ludhiana v. State of Punjab and Ors, (1997)8 SCC 511 The Court held that upon application of the doctrine it can be inferred that when words are grouped together, each word in the entry draws colour from the other words therein. As a result the court concluded that Entry 16 of the Punjab General Sales Tax Act, 1948 could not be read to tax agarbatti, dhoop as taxable items were to be read in context of ‘perfumery’ i.e. something which can be used on the human body. In Godfrey Philips v. State of Uttar Pradesh, AIR 2005 SCC Supreme Court was required to consider the legislative competence of the statutes which empowered the state legislations to tax ‘luxuries’. Entry 62 of the State list allowed taxes to be imposed on ‘luxuries including taxes on entertainments, amusements, betting and gambling’. The impugned legislations had imposed taxes on tobacco, tobacco products and intoxicants. Held: The word accompanying ‘luxuries’ in the Entry were all activities and not goods In Commissioners v. Savoy Hotel (1966) All Er While interpreting a purchase Tax Act, Which used the expression ‘manufactured beverages including fruit-juices and bottled waters and syrups, etc’, it was held that the description ‘fruit-juices’ as occurring therein should be construed in the context of the preceding words and that orange juice unsweetened and freshly pressed was not within the description. Difference between Ejusdem Generis and Noscitur A Sociis Noscitur a sociis applies to cases where analogous words are put together but Ejusdem applies when the specific words follow the general words. Associated words take their meaning from one another under the doctrine of Noscitur a Sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it, such doctrine is broader than the maxim Ejusdem Generis. 8. EJUSDEM GENERIS I.
Meaning and definition The Latin expression Ejusdem Generis means “of a same kind or nature”
Acc. to Halsbury’s Laws of England ‘ As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction, must be applied with caution, the subject to the primary rule that statutes are to be construed in accordance with intention of parliament”. The rule of ejusdem generis rule is not a rule of law but is merely a rule of construction to aid the courts to find out the true intention of the legislature. If a given provision is plain and unambiguous and the legislative intent is clear, there is no occasion to call in aid that rule. For instance, where an exclusion clause in an insurance contract stated that liability will be excluded by damage caused by acts of God, flood, fire or otherwise, the term otherwise relates only to damage of the same class as the preceding words. Thus, the clause would not exclude liability for damage caused by riots, but may do for damage caused by gas leaks. II.
English context The rule of Ejusdem Generis was laid down by Lord Tenderden (Know as Lord Tenderden’s rule in England) in the case of Sandiman v. Beach “Where general words follow particular ones, the rule is to construe them as applicable to persons Ejusdem Generis”. III. Indian context Where general words follow specific words, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. Amar Chandra v. Collector of Excise, Tripura, AIR 1972 SC. The court laid down rule of ejusdem generis applies when: a. The statute contains an enumeration of specific words; b. The subjects of enumeration constitute a class or categories; c. That class or category is not exhausted by the enumeration; d. The general terms follow the enumeration; and e. There is no indication of a different legislative intent. Case law development State of Bombay v. Ali Gulshan AIR 1955 SC. The question was whether the appellant was entitled under section 6(4) (a) of the Bombay Land Acquisition Act, 1948, to requisition, for a public purpose, premises for housing a member of a foreign consulate. The sub-section provided that: “The State Government may requisition for the purpose of state or any other purpose….” Was involved. The High Court was of the view that “any other” should be read ejusdem generis with the purpose of the state that the accommodation for a member of the foreign consulate staff is “a purpose of the Union” and thus the state government was not entitled to requisition. In construing the words for the purpose of a state or any other public purpose in section 6(4)(a) of the Bombay land requisition act 1948 the SC declined to apply the rule of ejesdem generis for the construction of the word or any other public purpose and pointed out by referring to the legislative entries in the list
that state purpose and any other purpose were in themselves two distinct categories. Evans v. Cross, The interpretation of the words ‘other devices’ in section 48(9) of the Road Traffic Act, 1930, which happened to define a ‘traffic sign’ to include “all signals, warning posts, signs or other devices”. Applying the rule of ejusdem generis the court held that a painted white line on a road could not be called traffic sign.
Ujjam Bai v. State of U.P, AIR 1962 SC “Again Article 12 winds up the list of authorities falling within the definition by referring to ‘other authorities’ within the territory of India which cannot obviously be read as ejusdem generis with either the government or the legislatures or local authorities. The word are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India or under the control of the Government of India”. M/S Siddeshwari Cotton Mills Pvt. Ltd. V. Union of India, AIR 1989 SC. The Supreme Court observed that the expressions ‘bleaching, mercerizing, dyeing, printing, water proofing, rubberizing, shrink-proofing, organdie processing, which precede the expression’ or any other processes’ in section 2(f) (v) of the Centre Excises and Salt Act, 1944 all envisage processes which import a change of lasting character to the fabric. The term ‘any other process’ must share one of these incidents, thus the principle of ejusdem generis was used for interpreting the context of the general words in context of the enumerated words which followed. The rule of interpretation generally known as ejusdem generis rule reflects an attempt to reconcile incompatibility between the specific and general words, in view of the rules of interpretation, that all words in a statute are given effect if possible, statute should be construed as a whole and no words in a statute are presumed to be superfluous. In construing the definition of ‘workmen’ in the Industrial Courts Act, 1919, which reads: ‘means any person who entered into or works under a contract with an employer whether the contract be by way of manual labour, clerical work or otherwise’ Viscount Simon, L.C. said: ‘the use of words or otherwise does not bring into play the ejusdem generis principle for manual labour and clerical work’ do not belong to a single limited genus.( N.A. L.G. O V.Bolton Corporation, 1943 AC) Ejusdem Generis: when not to invoke The doctrine ejusdem generis must be applied with care and caution. It said that the rule of ejusdem generis should not be invoked when: a. b. c. d.
Where the intention of the legislature is clear; Where it would result in disregarding the plain language of the statute; Where mention of a single species does not constitute a genus. Where a perusal of the statute as a whole indicates that the legislature intended the general words to go beyond the class specially designated;
e. Where the specific things enumerated have no common characteristic and differ greatly from one another; f. If the preceding words do not constitute mere specifications of a genus but constitute description of a complete genus, the rule has no application. g. Where the particular and specific words exhaust the whole genus. IV.
Words of Rank According to this rule, when words descriptive of persons are used in an order descending by rank, general words at the end of the list do not include persons or things of a higher rank then the highest named, if there be any lower species to which they can apply. Ex: Phrase “an officer or examiner of the court or some other person”, the residuary words have been not to include Judges. Casher v. Holmes, (1831) General words “all other metals” following the particular words “copper, brass, pewter, and tin” did not include silver or gold, those latter metals being of a superior kind to the particular metals enumerated.
9. INTERPRETATION OF FISCAL/ TAXING STATUTES Tax is a compulsory contribution to the support of the Government which is levied on persons, property, income, commodities, transactions, etc. Constitutional madate Article 265 of the constitution provides: “No tax shall be levied or collected except by authority of law”. Article 366(28) of the constitution which defines Taxation and Tax reads: Taxation includes the imposition of any tax or impost, whether general or local or special and tax shall be construed accordingly”. Any compulsory exaction of money by Government amount to imposition of tax which is not permissible except by or under the authority of a statutory provision. A tax is imposed for public purpose for raising general revenue of the state. A fee in contrasts is imposed for rendering services. A power to tax cannot be inferred from a general entry for taxes are specifically named and distributed between the Union and States by various entries in the constitution. The increase in rate of duty or levying different duty or levy of impost at different rates must equally be made under the authority of law in the manner prescribed by legislative enactment. A fiscal provision must not only be literally construed but also strictly construed. The executive cannot levy tax. It, for the said purpose, therefore, cannot even take recourse to the process of interpretation of statute General Principles of strict construction I. Taxation only by Express words
Lord Cairns states that “If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. The subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax on him. Imposition of taxes is like imposition of penalty so there is no room for any kind of intendment or presumption and the clearly stated words are to be interpreted by looking into three aspects; subject of tax, person to be taxed and rate of tax.” The Supreme Court- Bhagwati, J. stated the principle as follows: “In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of law. If the revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter”. In interpreting a taxing statute, equitable consideration are entirely out of place. Nor can taxing statute be interpreted on any presumptions or assumptions. Before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section. If the words used are ambiguous and reasonably open to two interpretations benefit of interpretation is given to the subject. It is well settled that in the field of taxation, hardship or equity has no role to play in determining eligibility to tax and it is for the legislature to determine the same. In a taxing provision if there are two possible constructions of the words of the statute then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him. Taxation only by express words: The rule is that the intention to impose a taxing statute must be shown by clear and unambiguous language II. Literal construction of words used: it is well settled that words in a taxing statute should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. The question whether wider or narrower meaning should be given, if words are capable of both, depends upon the context and background. It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the state or the substance of the law. In Associated Cements Co Ltd v. State of MP, AIR 2004 SC Question was whether the production of ‘refractory cement’ was liable to imposition of export tax. The main issue was whether refractory cement fell within the Entry “all types of cement’ was liable to export tax. Expatiating on the question, the court pointed out that cement was exclusively used as a building material and as a commodity of everyday use, whereas the main property of ‘refractory cement’ was that it could withstand very high temperatures, corrosion and abrasion. Anyone buying cement for building
would under no circumstances buy refractory cement. As the word ‘cement’ had not been defined, it had to be understood as used in common parlance. Hence, refractory cement was held to not be liable to the imposition of export tax.
V.
III.No extension by implication: The rule of construction of a charging section is that before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section. No one can be taxed by implication. The charging section has to be construed strictly. IV. No extension by analogy: It is out of place when the statute itself prescribe a particular mode of taxation for deciding whether or not it is logical. No equitable construction: In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. Considerations of equity, reason or justice have no place in a taxing statute, which must be construed only on the language used therein. While equitable considerations are of no avail in the construction of taxing statutes, a proper balance must be struck between the essential needs for revenue of a modern welfare state on the one hand and the desirability that the citizen must know his liability clearly before he can be called upon to contribute to the revenue on the other. “In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no necessity about a tax. There is no presumption as to a tax. Nothing has to be read in, nothing is to be implied. One can only look fairly at the language used” VI. No extension by fiction: The scope of a fiscal provision cannot be enlarged by creating a fiction. Taxing legislation subject to fundamental rights and other constitutional provision: Ex: Art. 14, 19(1)(g). Baidyanath Ayurved Bhawan v. Escise Commr., U.P AIR 1971. The appellant was a manufacture of certain medicines, made from substances like tincuture, spirit, etc. Tincture and spirit in their turn contain alcohol. The appellant was called upon to pay duty under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, on the ground that the medicinal preparations contained alcohol. It was contended that the medicines were not prepared by the addition of pure alcohol. “In order to attract duty all that is required is that a medicinal preparation should contain alcohol. Alcohol may be a part of the preparation either because it is directly added to the solution or it came to be included in the medicinal preparation because one of the components of that preparation contained alcohol. According to the plain language of the provision all that is required is that that preparation should contain alcohol”. In interpreting a taxing provision, the courts should not ordinarily concern themselves with the policy behind the provision or even with its impact.” Case laws
The supreme court held that in cases where the literal interpretation of a fiscal legislation leads to an absurd meaning, the court have power to derive the
intention of the legislation to reach a relatively accurate result.(J.K Steel Ltd v. Union of India, AIR 1970 SC The Supreme Court held that with respect to liability to pay interest on delayed payment of tax has to be mentioned in the statute that means there should be a substantive provision in the statute to that effect. (Indian Carbon Ltd v. State of Assam, AIR 1997 SC) Exception provisions Benefit of exemption is to be considered strictly. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. Exemption notification cannot be unduly stretched to produce unintended results in derogation of the plain language employed therein. Taxation laws are not in the nature of penal laws; they are substantially remedial in their character and are intended to prevent fraud, suppress public wrong and promote the public good. Provision of exemption from tax in a fiscal statute is to be strictly construed. Evasion of Statutes It is not permissible to evade an act of parliament by resorting to a fraudulent device. 10. THE GENERAL CLAUSE ACT, 1897
Object: To avoid superfluity and a repetition of language and to place in a single Act. To shorten the language of Central Act. To provide as far as possible for uniformity of expression in Central Acts, by giving definitions of a series of terms in common use. To state explicitly certain convenient rules for the construction and interpretation of certain Acts. Definition and the rule of interpretation contained in the General Clause Act have to be read in every other statute governed by it. Value and utility of the general clauses act is considerable, because it not only constitutes the reference book of the judge when dealing with statutes, but serves as the draftsman’s labour saving device. Every state has its own General Clause Act, Which applies to state Acts. Raj Kumar Yadav v. Samir Kumar Maheseth, AIR 2008 SC Constitution of India - Article 225—Representation of People Act, 1951— Section 81—Patna High Court Rules—Rules 6 and 7—Election petition— Period of limitation—45 days from date of election—Last date of limitation being 28.8.2003—Word “day” in Section 81 begins at mid night and covers period of 24 hours thereafter—Thus, petition could have been presented upto mid night falling between 27th and 28th day of August, 2003—High Court Rules framed under Article 225—Relate to procedural matters—And cannot make nor curtail any substantive law—At time of presentation, Judge may not be sitting in open court—But that does not mean that he cannot receive election petition—Judge ordinarily to sit in open court upto 4.15 p.m. of day as per rules —But that time is not end of day—Election petition handed over to Election
Judge on last day of limitation at 4.25 p.m. in his chambers—Judge neither receiving presentation nor making any other order directing official of Registry to receive same—Hence, petition presented next day in open court— Presentation to be deemed to be within limitation and valid—Impugned judgment of High Court set aside—Petition held to have been filed within period of limitation. (Pl refer original case)
a. b.
c. d.
e.
Mimansa Rule of Interpretation Maxwell’s Rule of interpretation are in extensive use throughout the country, there is a growing use of an indigenous alternative. The alternate system of interpretation is the Mimansa Rule of Interpretation, laid down by Jaimini, 2500 year ago. These principles have grounded in vedic texts and traditions. Originally these rule were created only for interpretation of religious texts pertaining to yagna. However these principles were found to be so rational and scientific that is spite of their originating in religious practices they were gradually started to be used in other field like law and philosophy, elevating them to the status of rules of universal application. Mimansa rules are the stepping stone of the Dharmasashthra. There are five divisions of the General Principles of Interpretation Shruti: The interpretation of words should be taken in their simplest meaning. This is Literal Rule of Interpretation. Vachan: In case of conflict between the interpretations of the meaning of a word in terms of tense, the interpretation should be made looking at the tense used in the remaining texts or words. There can be no interpretation of the tenses contrary to the vedic wachan. Linga: Where an ordinary meaning of the word cannot be used, the technical meaning of that word should be resolved. Vakya: Whenever a word or a sentence in the text does not have a clear meaning, then the composition of such sentence or word should be determine the possible relevant meaning. Prakaran: Wherever there remains an ambiguity in the meaning of a word and sentence, the meaning should be resolved according to the context of the text. It allows construction of meaning of text by referring to some other text. The first school of interpretation is known as the Pada School of interpretation. It is primarily concerned with the traditional meaning of words and is therefore most concerned with the traditional meaning of words and is therefore most concerned with the traditional rules of linguistics and etymology. Case laws UP Bhoodan Yagna Samiti, UP v. Braj Kishore AIR 1988 SC The Supreme Court had to interpret Uttar Pradesh Bhoodan Yagna Act, 1953, to implement the Bhoodan movement, which aimed at distribution of land to landless labourers who were versed in agriculture and who had no other means of subsistence, Section 14 which employed the word “landless labour”. The court in paragraph 12 of its judgment referred to a vedic shoka to throw light on
the term under question. By making a reference to a Hindu Text, it was able to understand that “landless labour” was used to refer to landless agricultural labor, who were often considered as lower castes, and were thereby refused the right to hold property, even where they had rightful title to such lands. Supreme Court observed that “In this country, we have a heritage of rich literature; it is interesting to note that literature of interpretation also is very well known. The principles of interpretation have been enunciated in various shlokas which have been known for hundreds of years. Held: It was held that the expression ‘landless persons’ in section 14, which made provision for grant of land to landless persons, was limited to landless labourers as described above and did not include a landless businessman residing in a city. The Mimansa rule of interpretation have by and large not been engaged with by judges of the High Judiciary. One exception to this trend is justice Markandey Katju, who has had reliance on these principles repeatedly, during his tenure as Supreme Court judges. For instance in U.P. State Agro Industrial Corporation Ltd. V. Kisan Upbhokta Parisahad and Ors AIR 2008 SC Justice Katju observed “ it is deeply regrettable that in our courts of law, lawyers quote Maxwell and Craines but nobody refers to the Mimansa Principles of Interpretation. Today our so called educated people are largely ignorant about the great intellectual achievements of our ancestors and the intellectual treasury they have bequeathed us”. Observation on Mimansa rule: Judges often view the Mimansa rules of interpretation as a viable alternate and on occasion a substitute to the traditional rule of statutory interpretation as contained in Maxwell and Craines. The content and purpose of the Mimansa as well as Maxwellian rules of interpretation are substantially similar. Both systems of interpretation treat the plain meaning of the word with the greatest importance, and only look to external and subsidiary aids of interpretation when there is an ambiguity and inconsistency in the plain meaning of the word employed. In this sense, there is no conflict between or within the two systems of interpretation. Secondly, wholly substituting the Maxwell rules with those of Mimansa would not be prudent for a number of considerations. For a proper understanding as well as application of the Mimansa rules, it is crucial not ony to have an indepth knowledge of Sanskrit but also to be aware of the dynamics of Vedic traditions and social customs, which cannot reasonably expected of all judges. Additionally, for an effective application of the Mimansa rules, the vedic rules, which are often laid out in open ended and mythical ways, must be reduced in clear and precise rules of interpretation.
11. GOLDEN RULE OF CONSTRUCTION [Modification of the principle of grammatical interpretation] The fundamental rule of statutory interpretation is that the words in a statute are to be given their natural and ordinary meaning, however, if such a construction leads to any absurdity, hardship, inconvenience, injustice, repugnancy,
inconsistency or defeats the purpose for which the statute is enacted, then judiciary may modify the language of the statute in order to give a construction which avoids such consequences- This is known as the golden rule of construction. a. b. c. d. e. f. g.
Following circumstances the golden rule can be applied Where grammatical construction going beyond specific object of statute Where Grammatical construction going beyond subject of statute Where Grammatical construction going beyond scope of the Act Where Grammatical construction leading to implicit alteration of law Grammatical construction defeating manifest purpose of enactment Where grammatical construction leading to unjust results Where grammatical construction leading to absurdity, repugnancy or inconsistency
Historical Background and Development of the Golden Rule of Construction Golden rule evolved in order to overcome the rigidity present in the literal rule. The origin of the Golden rule can be traced to Lord Wensleydale’s judgment in Grey v. Pearson (1854) 23 Ljcp 108. Where the rule was expressed as: " [T]he grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency but no farther.” The US Supreme Court recognized the golden rule of statutory interpretation in 1819. Where the court acknowledged absurdity as a justification for departure from the plain meaning of the words. The first instance, court will apply literal rule while interpreting the words in a statute, but if the literal consideration leads to a manifestly absurd result, they apply the golden rule in order to construe the statute in a manner so as to avoid the absurdity. Scope and Applicability of the principles Avoiding repugnancy or inconsistency The court should avoid a construction which is inconsistent with the object of the enactment or which would altogether defeat the purpose of the enactment. Lee v. Knapp. (1967) 2 QB 442 Interpretation of the word ‘stop’ was involved under section 77(1) of the Road Traffic Act, 1960 Driver coursing an accident shall ‘stop’ after the accident. Driver stopped for a moment after causing an accident and then moved away. Held: Applying the golden rule the court held that requirement of the section had not been followed by the driver. Interpreted reasonably and it was held that ‘stop ’did not mean a mere momentary pause and in the context meant that the driver of the motor vehicle should stop the vehicle and remain where he has stopped it for a reasonable time as will provide a sufficient period to enable persons to require of him the information, i.e.., names, address etc. Avoiding injustice In R v. Sigsworth,, A son murdered his mother and she died without making a will.
Section 46 of the English Administration of Estates Act 1925 provided that “the residuary estate of an intestate shall be distributed to the issue ", Held: The court applied the Golden Rule and held that issue/ son would not be entitled to inherit her estate on the grounds of public policy as it would be against the general principle that a person cannot profit by his own wrong. Avoiding Absurdity Court will seek to apply the principles based on the presumption that Parliament did not intend absurd consequences to ensure from the application of the enactment. RV.Allen(1897) The defendant was charged with the offence of bigamy under S.57 of the Offences Against the Person Act 1861. The statute states 'Whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognize a second marriage any attempt to marry in such circumstances would not be recognized as a valid marriage. Held: The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld. Central India Spinning, Weaving and Manufacturing Co. Ltd., Empress Mills, Nagapur v. Municipal Committee, Wardha, AIR 1958 SC 341 Section 66(1) of the Central Provinces and Berar Municipalities Act, 1922 Which authorized imposition of ‘a terminal tax on goods or animals imported into or exported from the limits of a municipality’ Question before the Supreme Court was whether the said clause empowered the municipality to levy a tax on goods in transit? High Court had adopted the derivative meaning of words import and export, i.e., to bring in and to carry away and had therefore held that the municipality had the power to levy terminal tax on goods in transit. Held: Supreme Court rejected the High Court decision and pointed out that the words import and export in their ordinary commercial sense do not refer to goods in transit; and in selecting the commercial sense of the words in preference to derivative sense, Kapur, J., observed: “The effect of the construction of ‘import’ or ‘export’ in the manner insisted upon by the respondent (municipal committee) would make rail borne goods passing through a railway station within the limits of a municipality liable to the imposition of the tax on their arrival at the railway station or departure there from or both which would not lead to inconvenience but confusion, and would also result in inordinate delays and unbearable burden on trade both inter-state and intra-state. It is hardly likely that was the intention of the legislature. Such an interpretation would lead to absurdity which has according to rule of interpretation to be avoided”
Avoiding Hardship or Inconvenience If a literal interpretation of a statute results in hardship to one of the parties, which was presumably not intended by the legislature, then such construction should be given which avoids such hardship or inconvenience. Saibaba v. Bar Council of India, AIR 2003 SC The Supreme Court was called upon to determine the commencement of the period of limitation for filing a review petition under the Advocate Act, 1961 The held that the expression ‘date of that order’ as occurred in S. 48AA should be construed as date of communication or knowledge (actual or constructive) of the order to the petitioner. State of Punjab v. Quarer Jehan Begum, AIR 1963 SC Property Acquisition- Sec 18 of Land Acquisition Act, 1894- respondents were evacuees they were owner of land. Which acquired by appellant respondents were not notified about acquisition and were not present at the time of award no notice issued to them before acquisitions. Respondent brought matter before collector and collector referred their application to the civil court for determining the compensation. The civil court came to the conclusion that application was barred by limitation. According to Section 18 such reference would be made within 6 months from the date of award. Supreme Court held- holding that the application was within time, unless an award of compensation comes to the knowledge, either actually or constructively, how can a reference, if any, is made against the award. Therefore, justice and fair play required that the counting of the limitation period begins from the date of knowledge of award.
Concluding observation Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. Inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be an “absurd inconvenience”. Individual caes of hardship or injustice have no bearing for rejecting the natural construction and it is only when the natural construction leads to some general hardship or injustice. The laws enacted for the general advantage do result in individual hardship; For exs: Law of Limitation, Registration, although enacted for the public benefit, may work injustice in particular cases but that is hardly any reason to depart from the normal rule to relieve the supposed hardship or injustice in such case.
Case law references 1. Lee v. Knappa (1967) 2 Q.B 442. 2. Bhatia International v Bulk Trading SA (2002) 37 S.C.L. 434 (SC) (Sup Ct (Ind)) 3. Ashok Paper Mill (Assam) Limited, Gauhati and another v North Eastern Chemicals, Industries (P) Limited, Gauhati and another Gauhati High Court 4. 21 July 2011
5.
Central India Spinning; weaving and manufacturing Co Ltd, Nagpur v. Minicipal Committee, Wardha AIR 1956
12. HARMONIOUS CONSTRUCTION-II MSM Sharma v. Krishna sinha AIR 1950 SC Supreme Court applied harmonious construction to resolve the conflict between Article 19(1)(a) and 194(3) of the constitution and it was held that the right of freedom of speech guaranteed under Art. 19(1)(a) is to be read as subject to power, privileges and immunities of a House provided under Art. 194(3). People Union for Civil Liberties v. Union of India, AIR 2004 SC An important question as to the power of courts to decide a question a question of privilege concerning documents relating to affairs of state was answered by the Supreme Court by harmonizing section 123 and 162 of the Indian Evidence Act, 1972. Held: The affidavit of the head of the department or the minister is not conclusive that a particular document relates to affairs of state. The opinion of the Head of the Department or the Minister is open to judicial review and if necessary the court can inspect the document. In deciding upon the question of privilege the court has to balance the public interest which demands the withholding of the document against the public interest in the administration of justice that the courts should have fullest possible access to all relevant materials and in the citizen’s right to information under Article 19(1)(a) of the constitution. 1 2
Case law references: Ishwari Khatan Sugar Mills v. State of UP, AIR 1980 SC. Raj Krishna v. Binod AIR 1954 SC
Key aspects The rule of harmonious construction can also be used for resolving a conflict
between a provision in the Act and a rule made under the Act. Principle is also used to resolve a conflict between two different Acts
13. INTENTION OF LEGISLATURE Intention of the legislature is manifested in the statute itself such intention must be determined from the language which legislature has chosen to employ. Statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the legislature.
An interpretation of the statutory provision which defeats the intent and purpose for which the statute was enacted should be avoided. The most fair and rational method for interpreting a statute is by exploring the intention of the legislature through the most natural and probable signs which are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law. Wherever the language is clear, the intention of the legislature is to be gathered from the language used. When the legislative intent finds specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugtotory by giving undue importance to the soo called object underlying the Act. If the intention of the legislature is clear, that intention constitutse law. It is not for the court to put words in the mouth of the legislature or seek the legislative intent. It is a statutory rule that intention of the legislature must be found by reading the statute as a whole. Every provision and every word must be looked at generally and in the context in which it is used and not in isolation. The factors which can be taken into account in ascertaining that intention of the legislature are the history of the Act, the reasons which led to the passing of the Act, the mischief which had to be cured. The first and primary rule of construction, said Gajendragadkar J “is that the intention of the legislation must be found in the words used by the legislature itself”. I do not care what their intention was.” Said Mr. Justice Holmes in a letter: “I only want to know what the words means. Jurist’s View Acc. to Salmond ‘ The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Judges are not at liberty to add to or take from or modify the letter of the law. If the letter of law is logically defective or text leads to a result so unreasonable which is not intended by the legislature, then judges can correct the text. Acc. Maxwell ‘to arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole act. Acc. Roscoe Pound emphasizes: "The object of genuine interpretation is to discover the rule which the law-maker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed. Intention of Legislature- A slippery Phrase Lord Watson indicated the nature and limits of the canon: ‘intention of the legislature’, which is a common but very slippery phrase. Testimony of Draftsman Irrelevant The person who drafted the enactment is also not competent to declare as to the intention of the legislature which passed it. Case laws In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum & others, AIR 1997 SC
It was held in determining the legislative intent, the court is required to consider three factorsa. Context and the object of the statute b. The nature and precise scope of the relevant provisions and c. Damage suffered 14. INTERNAL AID TO INTERPRETATION I.
II.
III.
Short Title It is considered as a nick name and given for identification of the act. Examples: Indian Evidence Act, 1872 The words of the title of a statute may be referred to in construing the statute, in order to discover the intention of the legislature, where the meaning of any section or sections is doubtful. Long Title Long title gives a general description of the object of the act and it often precedes the preamble of the act. Example: Long title of the Code of Criminal Procedure, 1973 provides: An Act to consolidate and amend the law relating to criminal procedure. Long title to an act is a part of the act and is admissible as an aid to its construction. It is a guide for the determination of the scope of the act and the policy underlying the legislation. Title cannot control the express operative provisions of the Act. It is permissible to use the long or full title of an Act to throw light on a doubtful meaning, no weight should be attached to the short title Preamble The preamble of a statute is not an enactment but a mere recital of the intent of its framers. It may be considered as a key to the construction of the statute whenever the enacting part is open to doubt It cannot restrict or extend the enacting part when the latter is free from doubt. Preamble is a key to open the mind of the legislature but it cannot be used to control or qualify precise and unambiguous language of the enactment. It is only in case of doubt or ambiguity that recourse may be had to the preamble to ascertain in reason for the enactment in order to discover the true legislative intendment. It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded. Where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it. Case laws Arnit Das v. State of Bihar (2000) 5 SCC “The preamble suggests what the act was intended to deal with. If the language used by parliament is ambiguous the court is permitted to look into the preamble for construing the provisions of an act. The preamble is a key to unlock the legislative intent. If the words employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret the enactment as to harmonies it with the object which the legislature had in its view”
Burrakur Coal Co. v. Union of India, AIR 1961 SC The Coal Bearing Areas (Acquisition and Development) Act, 1957 Preamble provides that….. ‘An act to establish in the economic interest of India greater public control over the coal mining industry and its development by providing for the acquisition by the state of unworked land contain coal deposits……’ Section 4(1) provides: Whenever it appears to the Central Government that coal is likely to be obtained from land in any locality, it may be notification in the official gazette, give notice of its intention to prospect for coal therein. Section 5(b) on issue of such notification, the mining lease, granted to any person, in that land would cease. Question: Whether this act applies only to virgin lands and not those lands which are being worked in the pastWord unwarked land is used in the preamble Held: Supreme Court applied the plain language used in section 4. Court observed: Where the language of an act is clear, the preamble must be disregarded. Where object or meaning of an enactment is not clear, the preamble may be resorted to explain it. Maharao Sahab Shri Bhimsinghji v. Union of India, AIR 1981 SC. The Urban Land (Ceiling and Regulation) Act, 1976 Sec. 23(1) provides government is empowered to allot government land to any person for any purpose relating to or in connecting with any industry or residential accommodation to employees of any industry as the state government may approved The preamble of the act showed that the object of the act is prevention of concentration of urban land in the hands of a few persons. Sec. 23(4) provides subject to the provisions of Sec. 23(1) all vacant land shall be disposed of by the state government to subserve the common good. Held: By giving restrictive interpretation “The preamble to the act ought to resolve interpretational doubt arising out of the defective drafting of section 23” Provision must be interpreted in the light of Section 23(4) as well as preamble. Preamble to the constitution In re, Berubari Union and Exchange of enclavesIt was held that preamble to the constitution was not part of the constitution Kesavanada Bharati v. State of Keara AIR 1973 SCC It was held that the preamble is a part of the constitution Preamble embodies and expresses the hopes and aspirations of the people. IV. Headings Prefixed to a section and prefixed to a group of sections. Acc to Maxwell ‘The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute, but they may explain ambiguous words.’
If the words of the section of an act admit of a reasonable doubt, the title or heading of the chapter or group of sections may be looked for the interpreting section. The heading of a chapter may be referred to in order to determine the sense of any doubtful expression in a section ranged under it. But it cannot control unambiguous expression. Chapter headings cannot be treated as rigid compartments. Headings or sub-headings cannot control, restrict or extend this scope other sections when the language is free from ambiguity. Frick India Ltd. V. Union of India, AIR 1990 SC 689. Supreme Court observed: ‘It is well settled that the headings prefixed to sections cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used is the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision of the clear words used in the provision” Bhinka v. Charan Singh AIR 1959 SC 960 The respondent filed a petition for eviction of the appellant under sec. 180 of the U.P.Tenacy Act, 1939, in the Revenue Court. Sec. 180 provides….‘A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment…’ Whether a person having no title but remaining possession by virtue of an order passed under Cr.PC could be ejected under sec. 145? The Supreme Court held that section 180 applies only in those cases where the landlord seeks to evict a person who has no right of possession. This is further reiterated by the heading of this section which reads. ‘Ejectment of person occupying land without title’. Therefore, section 145 had no application to tenancy matters.
15. INTERNAL AID TO INTERPRETATION-II V. Marginal notes The notes found printed at the side of the sections in an act which purports to summarize the effect of the sections. In the older statutes marginal notes were not inserted by the legislature and hence were not part of the statute and could not be referred to for the purpose of construing the statute. If they are also enacted by the legislature they can be referred to for the purpose of construction. In the case of the Indian Constitution, the marginal notes were enacted by the constitutional Assembly and hence they may be referred to for interpreting the articles of the constitution.
If the words used in the enactment are clear and unambiguous, the marginal note cannot control the meaning, but in case of ambiguity or doubt, the marginal note may be referred to. N.C Dhoundial v. Union of India (2004)2 SCC579 ‘It is a settled rule of interpretation that the section heading or marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent’ The said notes are not considered as part of the act. Bengal Immunity Company v. State of Bihar AIR 1955 SC 661 The marginal note to Article 286 of the constitution is : Restrictions as to imposition of tax on the sale or purchase of goods. SC held by a majority that marginal note to Article 286 of the constitution was a part of the constitution and therefore, it could be relied on to furnish a clue to the purpose and meaning of that article. Hints on Drafting Marginal notes should be framed with great care. Their object is to give a consicise inndication, not a summary, of the contents of the sections, and to enable a reader to glance quickly through them relying upon their accuracy. In SP Gupta v. Union of India AIR 1992 SC “Whether the marginal notes would be useful to interpret the provisions and if so what extent dpend upon the circumstances of each case. No settled principles applicable tto all cases can be laid down in this fluctuating state of the law as to the degree of importance to be attached to a marginal note in a state. If the relevant provisions in the body of the state firmly point towards a construction which would conflict with the marginal note, the marginal note has to yield. If there is any ambigouity in the meaning of the provisions in the body of the statutes, the marginal note may be looed into as an aid to construction. In UK – Marginal nots can be referred to for the purpose of interpretation if they can be regarded as inserted or asented to, by the legislature. Where the marginal note is insert by or under the authority of the legislature, it forms part of the Act and as such like the heading of chapter or the headings of groups of sections can properly be regarded as giving a contemporanea exposition of the meaning of a section, when the language of the section is obscure or ambiguous. If the concerned provision is amended, the marginal note would not control the meaning of the substantive provisions so as to nullify the amendment. VI. Definition or interpretation clause The definition must ordinarily determine the application of the word or phrase defined; but the definition must itself be interpreted first before it is applied. A court should not lay down a rigid definition and crystallize the law, when the legislature, in its wisdom has not done so. When a word or phrase is defined as having a particular meaning in an enactment, it is that meaning and that meaning alone which must be given to it in interpreting a section of the act, unless there be anything repugnant in the context. Purpose of a definition clause in a statute is two fold: i. To provide a key to the proper interpretation of the enactments, ii. To shorten in the language of the enacting part of the statute to avoid repetition of the same words contained in the definition.
Definition is not to be read in isolation, it must be read in the context of the phrase which would define it Definitions, Interpretation Clauses and the General Clauses Act Definition do not take away the ordinary and natural meaning of the words used. The word ‘includes’ is generally used in the interpretation clause to enlarge the meaning of words or phrases occurring in the body of the statute. Restrictive definition ‘Means’ such and such, the definition is prima facie restrictive and exhaustive Word defined is declared to ‘include’ such and such, the definition is exhaustive Words is defined ‘to apply to and include’ the definition is understood as extensive Carter v. Bradbeer, (1975) 3 All ER Section 201(1) of the Licensing Act, 1964 ‘bar’ is defined to include a place which is exclusively or mainly used for the sale and consumption of intoxicating liquor. Whether counters used for serving liquor were held to be bar within the section. House of Lord: use of the word ‘include’ showed that the definition did not exclude what would ordinarily and in common parlance be spoken of as a bar. Therefore, it includes aforesaid activities. State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610. While dealing with the definition of ‘Industry’ Section 2(j) in the Industrial Dispute Act, 1947 Gajendragadkar, J., observed: ‘It is obvious that the words used in an inclusive definition denote extensive and cannot be treated as restrictive in any sense. Where we are dealing with an inclusive definition, it is inappropriate to put a restrictive interpretation upon terms of wider denotation’. Therefore, Hospital was held to be industry. Section 2(o) of the Consumer Protection Act, 1986 Which is an inclusive definition of ‘service’ was held to include ‘housing construction’. Definition in the form ‘means and include’ will consider as exhaustive EX: Definition of tobacco in item 4 of the first schedule to the Centre Excise and Salt Act, 1944. It reads: ‘Tobacco means any form of tobacco whether cured or uncured and whether manufactured or not and includes the leaf stalks and stems of the tobacco plant’Construing this definition the Supreme Court held that the definition is exhaustive and tobacco seeds, which are not mentioned in the inclusive part, do not fall within the definition. (Mahalakshmi Oil Mills v. State of Andhra Pradesh, AIR 1989 SC335) A definition section may also be worked in the form ‘is deemed to include’ which again is an inclusive or extensive definition and such a form is used to bring in by a legal fiction something within the word defined which according to its ordinary meaning sis not included within it’ Definition in other Acts
It is always unsatisfactory and genenarlly unsafe to seek the meaning of words used in an Act of Parliament in the definition clause of other statutes dealing with matter more or less cognate, even when enacted by the same legislature. Where a defintion is given in an act, it should be confined as a general rule to interpret the word defined for that act only and not explain the meaning of the word in other statute. Use of words ‘includes’, ‘shall Include’ or ‘shall Mean and Inculde’ Craies opines “Where an interpretation clause defines a word to mean a particular thing, the defintion is explanatory and prima facie restrictive and where an interpretation clause defines a term to include something, the definition is extensive. An explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause. The reason is that wherever the word so defined is used in the particular statute in which that interpretion clause occurs, it will bear only that meaning unless where as it usually provided, the subject or context otherwise requires, an extensive definition expands or extends the meaning of the word defined into include within it what would otherwise not have been comprehended in it when the word defined is used in its ordinary sense” 16. INTERNAL AID-III VI. Proviso A proviso follows the enacting part of a section and is in a way independent of it. Normally, it does not enlarge the section, and in most cases, it cuts down or makes an exception from the ambit of the main provision. A proviso is added to an enactment to qualify or create an exception to what is in the enactment. It has no independent existence of its own, it is dependent on the main enactment. Further proviso is not normally construed as nullifying the enactment or as taking away completely a right conferred by the enactment. If the proviso is unlawful as ultra vires, it can be served from the rest of the enactment, Proviso may serve four different purposes: (SC in S. Sundaram Pillai v. V.R Pattabiraman AIR 1989 SC) such as; i Qualify or exception certain provisions from main enactment. ii It may entirely change the very concept of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. iii It may be so embedded in the act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself. iv It may be used merely to act as an optional addendum to the enactment with the sole object of explaining the real intendment of the statutory provisions. Where the main provision is clear, its effect cannot be cut down by the proviso. Proviso does not travel beyond the provision to which it is a proviso.
Where the section is doubtful, a proviso may be used as a guide to its interpretation. The proviso is subordinate to the main section. Where a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. “It is rule of law that a proviso should receive a strict construction. When the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment. VII. Exceptions and Saving Clauses An exception exempts something which would otherwise fall within the purview of the general words of a statute. The substantive distinction between a proviso and exception is that the former follows an enacting clause, and qualifies it in certain specified cases, while the latter is part of the enacting clause, and is of general application. An exception must be construed strictly. It is obvious that an exception cannot be so interpreted as to nullify or destroy the main provision. It cannot swallow the general rule. If an exception is repugnant to the operative part of the section, it must be ignored. Saving clauses are generally inserted when a statute is repealed and re-enacted. The effect is that the repealed statute remains in force as regards the rights the party previously had; but it does not create new rights in its favour. A saving clause is generally introduced into the repealing act, in order to safeguard rights, privilege or remedies which he may have acquired under the then existing law. A saving clause which is repugnant to the body of the act is void. A saving clause would not give any further right than that a party already had.
VIII. Illustration Illustration appended to a section form part of the statute. It offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustrations do not in legal strictness form part of the Acts, and are not absolutely binding on the courts. The illustration cannot have the effect of modifying the language of the section and they cannot either curtain or expand the ambit of the section which alone forms the enactment. If there by any conflict between the illustration and the main enactment, the illustration must give way to the latter.
IX.Explanation Explanation is appended to a section to explain the meaning of words contained in the section. It becomes a part and parcel of the enactment. Explanation does not enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute.
In S. Sundaram Pillai v. V.R Pattaliraman AIR 1985 SCC. Supreme Court explained the objects of an Explanation provision as follow: a To explain the meaning and intendment of the act itself. b Where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve. c To provide an additional support to the dominant object of the act in order to make it meaningful and purposeful. d An explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the explanation, in order to suppress the mischief and advance the object of the act it can help or assist the court in interpreting the purpose and intendment of the enactment; and e It cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an act by becoming a hindrance in the interpretation of the same. Explanation to a section is not a substantive provision by itself. It is entitle to explain the meaning of the word contained in the section or clarify certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Explanation normally should be so read as to harmonize with and to clear up any ambiguity in the main section. It should not be so construed as to alter the ambit of the section. X.Schedules Schedule is part of the statute itself and may be looked into by the courts for the purpose of interpreting the main body of the statute. While interpreting the schedules help may always be taken from the main body of the act to find out the true spirit of the act. In case of conflict between the body of the act and the schedule the former will prevail. Schedules appended to statues form part of the statute. They are added towards the end and their use is made to avoid numbering the sections in the statute with matters of excessive details
17. REPEALING LEGISLATION Repeal and Expiry of the Statute Halsbury’s Laws of England, 4th Edn. Repeal has been defined as –To repeal an Act is to cease to be a part of the corpus juris or body of law. According to Bennion “To repeal an enactment contained in the Act is to cause it to cease to be in law a part of the Act containing it.” The general principle is that, except as to transactions past and closed, an Act or enactment which is repealed is to be treated thereafter as if it had never existed. However, the operation of the principle is subject to any saving made, expressly or by implication, by the repealing enactment, and in most cases it is subject also the general statutory provisions as to the effect of repeal”. Right of repeal inherent in legislation
Power of a legislative body to repeal a law is co-extensive with its power to enact such a law. Just as the legislature has the power to enact laws, similarly it has the power to repeal them. I
Perpetual and Temporary statute A Statute becomes perpetual when no time is fixed for its duration, and such a statute remains in force until it is repealed whether by express provision or by implication. A statute is temporary when its duration is for a specified time and its expires on the expiry of the specified time unless it is repealed earlier. If the purpose of a statute is temporary the statute cannot be regarded as temporary when no fixed period is specified for its duration. After a temporary statute expires, it cannot be made effective by merely amending the same. Revival of the expired statute can be done only by reenacting a statute in similar terms or by enacting a statute expressly saying that the expired Act is herewith revived.
II
Effect of expiry of temporary statute a Legal proceedings under expired statute. A question often arises whether the legal proceedings under the expired statutes can be initiated after the act has expired? If such a saving provision is not present the normal rule is that proceedings taken against a person under a temporary statute ipso facto terminate as soon as the statute expires. In the absence of a saving provision when a statute expires, a person cannot be prosecuted and convicted for an offence against the Act after its expiration in the absence of saving clause. Even in the absence of saving clause, the Supreme Court in Bhupendra Kumar case held, upon construing the nature of rights and liabilities devised in the temporary act now expired, that a convict imprisoned for committing offences described under temporary act cannot be released from prison upon expiry of such act, unless his imprisonment term has also ended. Though a person preventively detained under temporary statute is released upon expiry of such law. b Notifications, Order, Rules etc made under temporary statute (Section 24, General Cluses Act) The normal rule is that when a temporary Act expires, any notification, appointment, order, scheme, rule, bye-laws made under the statute will also come to an end with the expiry of the Act unless so saved expressly by the repealing act. Where the ordinance Act is repealed and substituted by fresh legislation, the actions taken under ordinance are deemed to be executed under corresponding provisions of fresh legislation. c Expiry does not make statute dead for all purposes State of Orissa v. Bhupendra Kumar, AIR 1962 SC
Held: A person who has been prosecuted and sentenced during the continuance of a temporary Act for violating its provisions cannot be released before he serves out his sentence, even if the temporary Act expires before the expiry of full period of the sentence Ordinances promulgated by Executive heads in exercise of legislative power provided under Article 123 and 213 have same effect as acts passed by legislature, and thus, qualify as temporary statutes with maximum period of operation as six weeks. Where state makes any law in relation to proclamation of Emergency after Presidential order suspending enforcement of Fundamental Right (other than Article 20 and 21) has been promulgated under Article 359(1), the law ceases to operate after expiry of emergency. However, anything done under such law prior to its cessation continues unabated. III Repeal may be express or implied Express Repeal Repeal of a statute may be express or by necessary implication. Express repeal of a statute is usually made by stating that the earlier statute or a particular provision therein is thereby repealed. Ex. ‘is or are hereby repealed’, shall cease to have effect’ and ‘shall be omitted’, etc ‘All provisions inconsistent with this act’ are hereby repealed. It is considered as substitutes for the uncertainty of the general law. Implied Repeal The doctrine of implied repeal is based on the theory that the legislature is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions. Where there is no direct reference, the matter will have to be determined by taking into account the exact meaning and scope of the general words contained in the repealing clause and the principles of law which govern the interpretation of the same. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the exiting legislation. However, a repeal is inferred by necessary implication when the provisions of the later act are so inconsistent with or repugnant to be provisions of the earlier Act and that the two cannot stand together. When there is irreconcilable conflict between an old law and a new law. In a situation like this it is to be held the new law impliedly repeals the old law. Court also will determinea Whether the new law is intended as a substituted for the old; or b Whether the new law is irreconcilably inconsistent with the old, so that the former is thereby terminated.
a
Municipal Council, Palai v. T.J Joseph, AIR 1963 SC The Supreme Court has indicated that the test for determining repugnancy under Art. 254 of the constitution may be applied for solving a question of implied repeal and that it should be seen: Whether there is direct conflict between the two provisions;
b c
IV
Whether the legislature intended to lay down an exhaustive code in respect of the subject-matter replacing the earlier law; Whether the two laws occupy the same field. The doctrine of implied repeal is based on the theory that the legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions. According to Maxwell rule of implied repeal rests has been stated in Maxwell on ‘Interpretation of Statutes’ (Twelfth Edition) at page 193 thus: “If, however, the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one that the two cannot stand together the earlier is abrogated by the latter”. Prior general law and later particular law Implied repeal is subject to countervailing principle Generalia specialibus non derogate, i. e a prior special enactment is usually not repealed impliedly by later general Act. Variation of the punishment, penalty (including rate of tax) or procedure clause, without any change in essential ingredients of offence, in later law impliedly repeals the former law. There is no implied repeal when two different enactments confer supplementary power such as execution, clarification, rule making power at same or distinct levels, bestow similar powers at different levels; or, devise alternate remedial, dispute resolution or regulatory mechanism for achieving same objective without contravening earlier enactment.
Effect of Repeal Section 6 of the Indian General Clauses Act, 1897 providesWhere this Act or any Central Act or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall nota Revive anything not in force or existing at the time at which the repeal takes effect; or b Affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or c Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or d Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or e Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, liability, penalty, forfeiture or punishment as aforesaid; And any such investigation, legal preceding or remedy may be instituted, and continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing act or regulation had not been passed. Whenever there is a repeal of an enactment, the consequences laid down in sec.6 of the general clauses Act will follow unless, as the section itself says, a different intention appears. Transactions that have complete rights that have been acquired and penalties that have been incurred while a statute is in force, are not affected by the mere fact of the statute having ceased to be in force.
If right and procedure are both altered by an amending or repealing statute, then if the rights accrued under the previous enactment are saved, it would seem to be consequential that the old procedure is saved as well unless the new act makes the new procedure applicable to old right. V Subordinate legislation under repealed statute. Subordinate legislation made under a statute ceases to have effect after repeal of the statute. This result can be avoided by insertion of saving clauses proving to the contrary. When a statute is repealed and re-enacted, section 24 of the General Clause Act, 1897, provides for continuance of any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed statute in so far as it is not inconsistent with provisions re-enacted. 18. LIBERAL CONSTRUCTION OF REMEDIAL STATUTES Liberal construction of the statute, its meaning can be extended to matters which come within the spirit or reason of the law or within the evil which the law seeks to suppress. If the natural meaning of the words is not able to achieve the object of the statute, extended meaning may be given to them. If remedial statute is reasonable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to those in whose interest the act may have been passed and doubt if any, should be resolved in their favour. Beneficial construction is a tendency rather than a rule. Where the language used by the legislature fails to achieve the object of a statute, a more extended meaning could be given to it to achieve that object if the language is fairly susceptible to it. In case of remedial statues the doubt is resolved in favour of the class of persons for whose benefit the statute is enacted. Ex: The Factories Act, 1948, should be regarded as a beneficial rather then a penal statute. Its object is to secure proper working condition employed to do manual labour in certain operations. Union of India v. Prabhakaran Vijay Kumar, (2008)9 SCC 527 Interpretation of Section 123 (c) of the Railways Act, 1989 which defines ‘Untoward Accident’ to include ‘accidental falling of a passenger from a train carrying passengers’. Question whether the expression ‘Untoward accident’ so defined will also cover the case of a passenger who fell down and died while trying to board the train and his dependents will be entitled to compensate under Art. 124A of the Act. Held: Railway Act is a beneficial piece of legislation. Two interpretations can be given to the expression ‘accidental falling of a passenger from a train carrying passengers’, a. the first being that it only applies when a person has actually got inside the train and thereafter falls down from train, b. While the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so.
Since the provision for compensation in the Railways Act is a beneficial piece of legislation, it should receive a liberal and wider interpretation and not a narrow and technical one. Sudhoo v. Haji Lal Mohd. Biri Works, AIR 1990 SC 1971, P 1973 Interpretation of Section 31(2)(a) of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966- provides that “ the employees discharged, dismissed or retrenched may appeal” to the prescribed authority. Held: Construed liberally and held that there need be no written order of termination to enable the employee to appeal and that an employee who has been terminated by stopping him to enter the place of works could appeal to the prescribed authority. B. Shah v. Presiding officer, Labour court, AIR 1978 SC 12. Section 5 of the Maternity Benefit Act, 1961 provides that employer liable for the payment of maternity benefit to a woman worker at the rate of the average daily wage for ‘the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day’. Whether in calculating the maternity benefit for the period covered by section 5 Sundays being wageless holiday should be excluded? Held: Sunday must also be included the court applied the beneficial rule of construction infavour of the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output. U.Unichoyi v. State of Kerala AIR 1962 SC Minimum Wages Act, 1948 empowers the state government to fix minimum wages in an industry. Challenged on the ground of Art. 19(1) (a) Held: Beneficial legislation and should be construed in favour of the worker. Manohar lal v. State of Punjab, AIR 1961 SC Sec. 7 of the Punjab Trade Employees Act, 1949 directing that shops and establishments to which the act applied shall remain closed one day in a week. Held: It was held not violate Art. 19(1)(g) of the constitution as it was reasonable restricting on the fundamental right because it ensures health and efficiency of the worker. On similar ground, hours of employment of employee and opening and closing hours of shops or establishments cannot be held as violative of Fundamental Right to trade and business under Art. 19(1) (g). Mandgila v. Suganchand, AIR 1965 SC 101 A suit for eviction of tenant was filled under the Madhya Pradesh Accommodation Act. Sec. 4 provides that the tenant must have defaulted to pay arrears of rent within one month from the date on which a notice of demand has been served upon him by the land lord. Held: Supreme Court did not applied principle of beneficial construction on the ground that there was no ambiguity in the language of Sec. 4 of the Act. Secretary State of Karnataka v. Umadevi, (2006) 4 SCC Contract Labour (Regulation and Abolition)Act, 1970 Those employed on daily wages or temporary or on contractual basis by the State or its instrumentalities cannot be said to be holders of a post and have no right to regularization simply because they have worked for a number of years.
The decision shows that sympathy or sentiment by itself cannot be a ground for passing a favourable order when there is no legal right to support an order. Supreme Court overruled number of cases to the contrary Illustrative examples Service rendered by medical doctor is a service within the meaning of Sec. 2(o)of the Consumer protection Act, 1986 (Indian Medical Association v. V.P Santha, AIR 1995 SC 550) Housing construction although not expressly included, was held to be service of any description which is made available to potential users’ Hence, authorities can entertain a complaint by a consumer for any defect or deficiency in relation to construction activity against a private builder or statutory authorities. (Lucknow Development Authority v. M.K Gupta, AIR 1994 SC 787). In National Textile worker’s Union v. P.R Ramakrishnan AIR 1983 SC Justice Bhagwati said “We cannot allow dead hand of the past to stifle growth of the living present. Law cannot stand still, it must change with changing social concepts and values. If the law fail to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough”. Law must therefore constantly be on the move adopting itself to the fast changing society and not lag behind. We cannot therefore mechanically accept as valid a legal rule which found favour with the English Courts in the last century when the doctrine of laissez fair prevailed. It may be that even today in England the courts may be following the same legal rule which was laid down almost a hundred years ago, but that can be no reason why we in India should continue to do likewise. We have to build our own jurisprudence and through we may receive light from whatever source it comes, we cannot surrender our judgment and accept as valid in our country whatever has been decided in England. The court has to bear in mind that it is a beneficial piece of social welfare legislation aimed at promoting and securing the well being of the employees and the court will not adopt a narrow interpretation which will have the effect of defeating the very object and purpose of the Act in construing the provisions of the Act. Labour laws, being beneficial piece of legislation are to be interpreted in favour of beneficiaries. In case of doubt or where it is possible to take two views of a provision, the benefit must go to the labour. Remedial Statutes and their interpretation Remedial statutes are liberally construed, and in case of doubt or ambiguity that construction is adopted which best will advance the remedy provided and help to suppress the mischief against which it was aimed. The court should adopt such construction which advances the policy of the legislation to extend the benefit rather than one which curtails the benefit. Beneficial statutes should not be construed too restrictively. In case of doubt or two possible views the beneficiary legislation is to be interpreted in favour of beneficiaries. Pratap Singh v. State of Jhakhand, (2005) 3 SCC 551
a. b.
The Juvenile Justice (Care Protection and Treatment) Act, 2000 provides that all persons below 18 years of age were juveniles. Court held that in the wake of the beneficent objectives of the new act, even a person who was not a juvenile under the 1986 Act was for the purpose of sentencing to be treated as a juvenile under the 2000 Act. Geetha v. Union of India AIR 2005 SC The Court was concerned with the interpretation of Section 124A of the Railway Act, 1989, which dealt with compensation on account of an untoward accident. The claim of the appellant was disputed on the ground that deceased was not a bona fide passenger. Held: The ambit of the definition of the word passenger was to ‘include’ a wide variety of people, i.e. those who had a platform ticket etc. given that the deceased was travelling with valid documents of authorization issued by the military, the claim of the appellant was upheld. Ajaib Singh v. Sirhind co-op Marketing-cum-Processing Service Society Ltd. The Court had to consider whether a delay of 7 years in approaching the Labour Court to challenge an order of termination would lead to the matter being inadmissible. It was argued disputes under the Industrial Disputes Act, 1947, being social welfare legislation, would not attract the application of the Limitation Act. Held: Accepting the contention, and held that jurisdiction of the Labour Court could not be disputed on the basis of limitation. The Court observed: “The object of Industrial Disputes Act 1947 is to improve the service conditions of industrial labor so as to provide for them the ordinary amenities of life and by the process, to bring about industrial peace which would in its turn accelerate productive activity of the country resulting in its prosperity. The prosperity of the country in its turn, helps to improve the conditions of labour. Therefore, the provisions of the Act have to be interpreted in a manner which advance the object of the legislature contemplated in the statement of objects and reasons. While interpreting different provisions of the Act attempts should be made to avoid industrial unrest, secure industrial peace and to provide machinery to secure the end. In dealing with the industrial disputes, the courts have always emphasized the doctrine of social justice, which is founded on the basic ideal of socio-economic equality as enshrined in the preamble of the Constitution”. Limitations on the powers of the courts in application of Beneficent Legislation If on the application of the rule of beneficent or benevolent construction the court finds that it would be doing justice within the parameters of law there appears to be no reason why such construction be not applied. The judicial precedents have laid down certain criteria that where and when this rule of construction is required to be applied or not to be applied these areWhere the court finds that by application of the rule of benevolent construction it would be re legislating a provision of statute either by substituting, adding or altering the words used in the provisions of the Act. When the words used in a statue are capable of only one meaning. In such a situation, the courts have been hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than one meaning in such circumstances, the courts are not precluded from applying this rule of construction.
c.
Where there is no ambiguity in a provision of a statute so construed. If the provision is plain, unambiguous and does not give rise to any doubt, the rule of benevolent construction cannot be applied. However, if it is found that there no doubt regarding the meaning of a provision or word used in the provisions of any Act, it is permissible for the courts to apply the rule of beneficent construction to advance the object of the Act. d. Court should not proceed with any prior assumption whether legislation is beneficent to management or the workmen. The court must construe the statutory provision with a view to uphold the object and purport of Parliament. It is only in a case where there exists a grey area and the court feels difficulty in interpreting or in construing and applying the statute, the doctrine of beneficent construction can be taken recourse to. [The document titled ‘Liberal Interpretation’ is a copy.] 19. LITERAL RULE/GRAMMATICAL RULE OF INTERPRETATION -I The first principle of interpretation is the literal or grammatical interpretation which means that the words of an enactment are to be given their ordinary and natural or popular meaning Phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity. Word and Phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning. If the language of the statute is plain, the only duty of the court is to give effect to it and the court has no business to look into the consequences of such interpretation. The basic assumption behind this rule of interpretation is that it is presumed that the parliament has good sense and will not form a statute which will cause unnecessary hardships to the people. Acc to Maxwell “Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient. Words are not to be construed, contrary to their meaning. Duty of the court is to expound the law as it stands, and to “leave the remedy (if one be resolved upon) to others. One cannot depart from the natural meaning of a word unless by reading the statute as a whole unless the context of the statute as a whole leads to departure from its natural and ordinary meaning.
Omission not to be inferred It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.
Acc. to Lord Mersey said “It is a strong thing to read into an act of Parliament words which are not there, and in the absence of clear necesist it is a wrong thing to do” “We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.
Every word in a statute to be given a meaning A construction which would leave without effect any part of the language of a statute will normally be rejected The main part of a section must not be construed in such a way as to render a proviso to the section redundant Application of literal rule by judges Read the statute as a whole and attempt to harmonize all parts. Inconsistencies must be avoided Operative effect must be given to every part of the statute Ascribe meaning to the words with reference to the subject matter of the act/context of the act Case laws
Kenyon v Eastwodd(1888) 57 L.J.Q Where an act provided for orders for committal to be made “in open court”, an order made, not in the actual court-room, but in the room next to it (Which was also open to the public). Held: Invalid. R v. Harris (1836) Defendant bit off the nose of a woman. The prosecution charged him under the statute which made inflicting of a ‘stab, cut or wound’ a punishable offences. Held: An act can be declared as an offence under this section if it has been inflicted using a weapon or an instrument and not teeth or hands and thus the accused was acquitted.
Ramavtar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325 Sec 6 and schedule II of the C.P &Berar Sales Tax Act, 1947 imposed sales tax on commodities with the exceptions under schedule II. Item 6 of Schedule II exempted vegetable from being taxed Whether the sale of betel leaves was subject to sale tax? The appellants contended that since betel leaves fell under the category of vegetables were not subject to sale tax. The appellant relied on the dictionary meaning of vegetable which says thatDictionary meaning … Vegetable is that which is pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts. Held: Supreme Court rejected the contention and held that betel leaves could not be given the dictionary, technical or botanical meaning when the ordinary and natural meaning is clear and unambiguous. Being a word of everyday use it must be understood in its popular sense by which the people are conversant with
the matter would attribute to it. Therefore, the sale of betel leaves was liable to sale tax Thus, while interpreting taxation statutes the words will be given their popular meaning i.e their meaning as exists in common parlance. Motipur Zamindary Company Private Limited v. State of Bihar, AIR 1962 SC 660. Question was whether sugarcane fell within the term green vegetables in Entry 6 of the Schedule and as such no sales tax could be levied under the Bihar Sales Tax Act, 1947 on its sale. Vegetables should be interpreted in its natural and popular sense and that dictionary meaning is not of such help. Vegetables as the normal people means by it are those which can be grown in a kitchens garden to be used for the table, that is to say, to be eaten during lunch or dinner. Held: Sugarcane definitely does not fall under this category. Similarly, green ginger, chillies and lemons have been held to be vegetables while coconut has been held to neither ‘fresh fruit’ nor ‘vegetables’ and watery coconut is neither green fruit nor dried fruit. Forest Range Officer v. Khushboo Enterprises, AIR 1989 SC 1011. Section 2(f) of the Kerala Forest Act, 1961 defines forest produce to include whether found in or brought from a forest or not that is to say: ‘timber, charcoal, wood-oil’. Question before the Supreme Court was whether sandal wood oil is ‘wood oil’ as used in the above definition of forest produce. Sandal wood oil is produced at a factory level by mechanized process utilizing the hard wood and roots of sandal wood trees removed from forest as a raw material. Dictionary meaning of wood oil is a natural produce of the forest derived as an exudation from living trees in the forest belonging to trees and it will not include sandal wood oil which is a bye-product from sandal wood by industrial process. Held: Court rejected the above argument the object of the Act was to conserve forest wealth and there was no indication in the act to exclude what was ordinary and in common parlance spoken of as wood oil. Sandal wood oil was wood oil within the definition of forest produce. Harbhajan singh v. Press Council of India AIR 2002 SC 1351 Sec. 6(7) of the Press Council Act, 1978 provides: A retiring member shall be eligible for re-nomination for not more than one term’ Held: Supreme Court applied the literal meaning of these words and held that the provision applied to a member just retiring and not to retired members. 20. LITERAL/GRAMMATICAL RULE OF INTERPRETATION-II Ordinary and natural meaning to be adhered to in the first instances
The words of the statute prima facie are given their ordinary meaning. When the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences. If the result of the interpretation of a statute by the literal rule is not what the legislature intended, it is for the legislature to amend the statute, rather than for the courts to attempt the necessary amendment by investing plain language. Ordinary and natural meaning not to be controlled by supposed intention The intention of the legislature is to be gathered only from the words used by it and no such liberties can be taken by the courts for effectuating a supposed intention of the legislature. The general rule is not to import into statutes words which are not found therein. The court cannot read anything into the statutory provision which is plain and unambiguous. Words are to be interpreted as they appear in the provision, simple and grammatical meaning is to be given to them, and nothing can be added or subtracted. Court not to make an assumption of intention before construction. Ordinary and natural meaning not to be controlled by intention of legislature. Ordinary and natural meaning of words not to be controlled by spirit of legislature. Ordinary and natural meaning not to be controlled by considerations of public policy. Clear language cannot be allowed to be controlled by considerations of legislative policy. Ordinary and natural meaning not to be controlled by equitable construction. Equitable construction was by the judges that takes cases out of the letter of the statute. Ordinary and natural meaning not to be affected by considerations of hardship, inconvenience etc. No consideration of hardship can, therefore, justify a departure from the plain meaning of a statute. Maradana Mosque (Board of Trustee) v. Mahmud, (1967) I AC 13 Interpretation of the word ‘is being administered’ was involved. Under provision of an Act a minister could pass a certain order if he was satisfied that a school ‘ is being administered’ in violation of the provisions of the Act. Held: Applying the literal rule the prevision was in present tense and, therefore, only present conduct of the school could be looked into and not the past conduct. In Bimal Chand v. Gopal Agarwal, AIR 1981 SC 1656 A notification was issued by the State Government under Sec. 3A of the UP Sales Tax Act 1948. Acc. to which tax was fixed at two percent of the turnover payable at all points of the sale in the case of cooked food. The appellant firm which was manufacturer and as well as seller of biscuits for human consumption claimed to come under this notification as biscuit was also a cooked food
Held: Supreme Court rejected this contention and held that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. When an expression is capable of a wider meaning, then the question whether the wider or narrower meaning should be accepted depends on the context. Ordinarily, biscuit is not a cooked food, and therefore, it cannot be taxed under this notification. II.Exact meaning preferred to loose meaning
Words are used in an Act of Parliament correctly and exactly and not loosely and inexactly. III. Technical words in technical sense Technical words are understood in the technical sense only a. Special meaning in trade, Business etc. Words are understood in their ordinary or natural meaning in relation to the subject-matter, in legislation relating a particular trade, business, profession art or science, words having special meaning in that context are understood in that sense Ashiwini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369 In construing the word ‘practice’ in Supreme Court Advocates (Practice in High Court) Act 1951, Patanjali Shastri, CJ, observed: The practice of law in this country generally involves the exercise of both the functions of acting and pleading on behalf of a litigant party; accordingly when the legislature confer upon an advocate ‘the right to practice’ in a court, it is legitimate to understand that expression as authorizing him to appear and plead as well as to act on behalf of suitors in that court. Consequences of divergence from the cardinal rule State of Kerala v Mathai Verghese AIR 1987 SC 33 While defining ‘any currency notes’ under section 489A of the Indian Penal Code, 1860 which deals with counterfeiting currency, the Supreme Court reprimanded the Kerala High Court for giving it a narrow meaning of just Indian currency though the word ‘any’ should have been given its general meaning and thus would include currencies of all countries. In Raghunath Rai Bareja and another vs. Punjab National Bank and others , SCC 2007, 230 (Paras 57 and 58) “The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language; We may mention here that the literal rule of interpretation is only followed by judges and lawyers, but it is also followed by the layman in his ordinary life. To give an illustration, if a person says this is a pencil and then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we
mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.” 21. MANDATORY AND DIRECTORY PROVISIONS The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which intent is clothed. If the object of the enactment will be defeated by holding the same directory, it will be construed as mandatory. Whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. If a provision is mandatory an act done in its breach will be invalid whereas if it is directory the act will be valid although the non-compliance may give rise to some other penalty if provided by the statute. Directory and Mandatory provisions distinguished a Mandatory provisions are to be complied strictly. In case of directory enactments only substantial compliance is sufficient. b A provision is not mandatory unless non-compliance with it is made penal. A mandatory provision must be obeyed and any act done in its breach will be invalid but if it is directory it will be valid. Ex: Sec. 117 of the Representation of the People Act, 1951 provides: ‘At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with Rule of the High Court a sum of two thousand rupees as security for costs of petition’ Construing this section it has been held that the requirement of making the deposit of two thousand rupees as security is mandatory, but mode of deposit as well as person who could make the deposit is directory. Mandatory and Directory enactment Test for determining whether a provision in a statute is directory or imperative No universal rule can be laid down as to when may a statutory provision be regarded as merely directory and when mandatory. In each case has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute.
State of U.P. V. Manbodhan Lal Srivstava, AIR 1957 SC Art. 320(3) provide that “The State Public Commission shall be consulted on all disciplinary matters affecting a person serving the government of a state in a civil capacity”. Held: The provision was not mandatory and that it did not confer any right on a public servant, so that the absence of consultation or irregularity in it did not afford him a cause of action. Whether an enactment is mandatory or directory depends on the scope and the object of the statute. Jyoti Prasad Mitter v. The Chief Justice, AIR 1965 SC
The interpretation of Article 217(3) of the constitution was in question. The provision says: ‘If any question arises as to the age of a judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final’. It was held by the Supreme Court that consultation with Chief Justice of the India was a mandatory requirement. One of the important tests that must always be employed in order to determine whether a provision is mandatory of directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if does, then the court would say that provision must be complied with and that it is obligatory in its character. Mandatory provision of a statute cannot be ignored merely on the ground of hardship or as merely procedural. If a provision is clearly of mandatory nature it should not be interpreted as directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory. If the legislative intent is expressed clearly and strongly, such as the use of ‘must’ instead of ‘shall’ that it will be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the inquiry further. Consequences provided by statute When on failure to comply with a prescribed requirement nullification as a consequence is provided by the statute itself, there is no doubt that such statutory requirement must be interpreted as mandatory
For ex: The period prescribed in the schedule to the Indian Limitation Act 1963, for bringing a legal proceeding are mandatory because the consequences of the expiry of the period of limitation is provided by S. 4 of the Act in that the court is enjoined to dismiss a legal proceeding instituted after expiry of the prescribed period. Sec. 17 of the Registration Act 1908 and provisions of Transfer of Property Act 1882 prescribe certain requirements as to registration of certain documents. These requirements are mandatory as the consequence of non-registration is provided by s. 49 of the Registration Act in that such documents if not registered do not affect the property comprised therein. Mandatory and Permissive words The use of the expression ‘may’ or ‘shall’ in a statute is not decisive When the legislature uses ‘must’ instead of ‘shall’ it uses a word which is most strongly imperative. Shall The word ‘shall’ though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and
design and the consequences that would flow from the construction thereof one way or the other. Where statute imposes a public duty and lays down the manner in which and the time within which the duty shall be performed, injustice or inconvenience resulting from rigid adherence to the statutory prescription may be a relevant factor in holding such prescriptions only directory. Ex: While construing sec. 17(1) of the Industrial Dispute Act, 1947, that it is obligatory on the government to publish an award, but the provision, that it should be published within thirty days, is not mandatory and an award published beyond thirty days is not invalid. May While construing the word May court has to consider following aspects; a Object and the scheme of the Act, b The context and the background against which the words have been used, c The purpose and the advantages sought to be achieved by the use of this word. Discretion to be exercised properly-discretion coupled with an obligation In construing a statute, it always assume that the discretionary power conferred upon various authorities under the statute will be used properly and not in an arbitrary or capricious manner. Mandatory provisions to be strictly construed while directory provisions to be liberally construed. Directory provision does not mean that compliance with it is purely discretionary. Key aspects No universal rule can be laid down, while construing statutes, to determine whether mandatory enactments should be considered directory, or obligatory with an implied nullification for disobedience. It is the duty of the courts to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. No universal rule can be laid down in this matter. What are mandatory and directory provisions? Craies put the matter “When statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute, but those which are not essential, and may be disregarded without invalidating the thing to be done, are directory” 22. MISCHIEF RULE OF CONSTRUCTION The word “Mischief” depicts “the facts presumed to be known to parliament when the bill which became the act in question was before it and “the unsatisfactory state of affairs” which the parliament seek to remedy by way of enactment of the statute in question. Mischief rule is to determine “mischief” that the previous law did not cover and what methodology would suffice in implementation of the remedy. Court should identify the mischief which existed before passing of the statute and then if more than one construction is possible, favour that which will eliminate the mischief so identified.
In applying a purposive construction a word of caution is necessary that the text of the statute is not to be sacrificed and the court cannot rewrite the statute. The Mischief rule of interpretation originated in Heydon’s case in 1584. The court came up with questions to be taken into account while construing an act, a. What was the common law before passing of the Act in question? b. What was the mischief and defect for which the common law/ law did not provide? c. What remedy the parliament had resolved and appointed to cure the disease of the commonwealth, and d. The true reason of the remedy; And then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy. Smith v. Hughes (1960)I WLR Section 1(1) of the Street Offences Act 1959 Question was whether prostitutes who attracted prospective customer from balconies or windows were soliciting in a street as provided under section (1) of the said act. Held: Applying the mischief rule it was held that Soliciting in a street and thus place from where they were doing so was of no consequences because the act was intended to clean up the street to enable people to walk along with street without being molested or solicited by prostitute. Lord Parker “I approach the matter by considering what the mischief is aimed at by this Act. Everybody knows that this was an act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitute.” Viewed in that way, the precise place from which a prostitute addressed her solicitations to somebody walking in the street became irrelevant.
Bengal Immunity Co. V. State of Bihar, AIR 1955 SC 661. The main question answered by the Supreme Court of India in this case was; Whether Article 286 of the Indian Constitution could be construed in a manner to allow the tax levied in the factual matrix of the case? The Apex Court adopted the rule expounded in the 16 th Century Heydon;s case and held that “ It was to cure this mischief of multiple taxation and to preserve the free flow of inter-state trade and commerce in the Union of India regarded as one economic unit without any provincial barrier that the constitution makers adopted Art. 286 in the constitution. Court came to this decision after tracing back the evolution of the Bihar Act. The before the independence of India witnessed the laws with regard to sales tax being levied on the basis of territorial nexus which further resulted in multiple taxation. This paved the way for the constituent Assembly to include Article 286 in the constitution to curb such taxation transactions by the states. Supreme court order: The appeal is allowed and an order shall be issued directing that, until Parliament by law provides otherwise, the State of Bihar do
for bear and abstain from imposing Sales Tax on out-of-State dealers in respect of sales or purchases that have taken place in the course of inter-State trade or commerce even though the goods have been delivered as a direct result of such sales or purchases for consumption in Bihar. The State must pay the costs of the appellant in this Court and in the Court below. The interveners must bear and pay their own costs.
Koppisetti Subbharao v. State of Andhra Pradesh, AIR 2009 SC Question posed before Apex court was relating to the expression “husband” used under section 498A of the Indian Penal Code. Whether legally valid marriage was a necessary condition to fulfill the criteria of such expression In the case of Dowry Prohibition Act, the courts so as to avoid harassment of women over demand for dowry gave a broad interpretation of the relevant expression. Under the Dowry Act no claim could be enforced without establishing a legally valid marriage, the purpose for which section 498A, 304B of IPC cannot be forgotten. Held: The husband covered a person who entered into a marital relationship and under such proclaimed status of husband subjected the woman concerned to cruelty or coercion. In Sri Ram Saha v. State of West Bengal, (2004) 11 SCC 497. Supreme Court observed that the court could not re-write a statute in the guise of purposive interpretation. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act but the court cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation.
23. NON OBSTANTE CLAUSE
A section sometimes begins with the phrase ‘notwithstanding anything contained, etc.’ such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante an overriding effect in the event of a conflict between it and the rest of the section. In case of any discrepancy between non-obstante clause and other provisions, non-obstante clause would prevail over the other clause. If, however, the enacting part is clear and unambiguous, its scope cannot be whittled down by the use of a non-obstante clause. Section 16 of the Hindu Marriage Act, 1955 which legitimatize children born of void marriage, opens with a non obstante clause ‘notwithstanding that a marriage is null and void under section 11”. But having regard to the language and beneficent purpose of the enacting clause it was held to be not restricted to marriage that were void under sec. 11 and children born of all void marriage were held to be legitimatized. (PEK Kalliani Amma v. K. Devi, AIR 1996).
If there are two or more enactments operating in the same field, each containing a non-obstante clause stating that its provisions will have effect? Later enactment normally prevails over the earlier one. In RC Pondyal v. Union of India, AIR 1993 SC It was held a provision beginning with the words ‘notwithstanding anything in this constitution’ added in the constitution by a constitution amendment act could not be construed as taking away the provision outside the limitations on the amending power and it has to be harmoniously construed consistently with the foundational principles and basic feature of the constitution. Legal Fictions in construction of statutes According to Black’s Law Dictionary, a legal fiction is “a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way”. In other word “a legal assumption that a thing is true which is either not true or probably as false as true”. According to Supreme Court “legislatures are competent to enact deeming provisions for the purpose of assuming the existence of facts which do not really exist. Vijay Laximma v. BT Shanker, (2003)2 SCC412 While interpreting section 12 of the Hindu Adoption and Maintenance Act, 1956 the court held that an adopted child will be deemed to the child of his adopting parents from the date of adopting for all purposes. The court also held that from that date all ties of child with his parent who gave him or her birth will be deemed to be served and replaced by those of the adopting parents Corporate Identity The concept of personality now has two aspects, natural persons and juristic persons. For the purpose of bringing claims against corporations, the court must rely on the legal fiction that a company is a person. The term ‘juristic person includes firms, corporations, unions, associations or other organizations capable of suing and being sued in a court of law. Limitations imposed through judicial decisions a. Legal fiction should operate for the purpose for which it was created and should not extend beyond its legitimate field. b. Legal fiction cannot upset the constitutional framework c. A legal fiction should not be employed to defeat law or result in illegality 24. RETROSPECTIVE OPERATION OF STATUTE Coke Maxim: “A new law ought to be prospective, not retrospective in its operation”. Meaning: In the legal sense, is one that takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty or attaches a new disability in respect to transaction or consideration already past. Every statute which takes away or impairs a vested right acquired under existing law or creates a new obligation, imposes a new duty or attaches a new
disability in respect of transactions or considerations already past, must be deemed to be prospective. Every legislation is prima facie prospective unless it is expressly or by necessary implication, made to have retrospective operation. All laws which affect substantive rights generally operates prospectively and there is a presumption against their retrospectively if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. I. Principles governing the retrospective operation of statute a The statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective, they are retrospective only if by express words or by necessary implication, the legislature has made them retrospective and the retrospective operation will be limited only to the extent to which it has been so made by express words, or necessary implication. b The second rule is that if the intention of the legislature has always to be gathered from the words used by it, giving to the words their plain, normal and grammatical meaning. c Where a statute is not clear as to whether it has retrospective effect and can be interpreted either way on this point, the court should not give it retrospective effect. Except where necessary, a statute should not be read retrospectively. Pending actions are not affected by new statute, unless the latter are expressly made applicable to the former. Acc. to Maxwell, no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which the case is pending, and if, by an Act of parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. II.
III. IV.
Fiscal statutes Fiscal legislation imposing liability is generally governed by the normal presumption that it is not retrospective. It is a cardinal principle of tax law that law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication. Assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective . Penal statutes Penal statutes which create offences or which have the effect of increasing penalties for existing offences will only be prospective by reason of the constitutional restriction imposed by art. 20 of the constitution. Statute prescribing posterior disqualification on past conduct State of Bombay v. Vishnu Ramchandra A person convicted in 1949 of theft could be directed to remove himself outside a specified area under s. 57 of Bombay Police Act 1951, which authorized removal of a person ‘who has been convicted of certain offences including theft. High Court held that no removal could found on such a conviction. Overruling the decision of the High Court where the contention had found favour, the Supreme Court observed:
Section 57 of the Bombay Police Act 1951 does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable persons who have been convicted of offences of a particular kind. The section only enables the authorities to take note of their convictions and to put them outside the area of their activities, so that the public may be protected against a repetition of such activities. V.
Statutes regulating appeals After the institution of original proceedings if any change in the law relating to appeal occurs which adversely affects this vested right of appeal is presumed not to be retrospective. In Garikapati v. Subbaih Chaudhary, AIR 1957 SC The following five propositions were laid down by the court with regard to retrospective operation on appeal. a. The legal pursuit of a remedy, suit, appeal are connected by an intrinsic unity and are to be regarded as one legal proceeding; b. The right of appeal is not a mere matter of procedure but is a substantive right; c. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit; d. The right of appeal exists as on the date the suit commences, this right is to be governed by the law prevailing at the date of the institution of the suit and not by the law that prevails at the date of its decision. e. This vested right of appeal can be taken away only by a subsequent enactment if it so provides or by necessary intendment and not otherwise.
VI.
Declaratory statutes An Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Presumption against retrospective operation is not applicable to declaratory statute. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit.
VII.
Remedial statutes Statutes which provide for new remedies for enforcement of existing right will apply to future as well as past cause of action because such statutes do not affect existing right and are, therefore, classified as procedure.
VIII. Statutes affecting finality of orders An order, which on the date it is made final, gives rise to vested right of appeal or revision is presumed not to affect the finality of orders already made. If a new right of appeal or revision is conferred before making of the order, although after institution of proceedings, the right of appeal is available against all orders subsequently made. For ex: An appeal will lie to the Supreme Court under Art. 133 of the constitution against a decree of High Court in a Part B States made after the
commencement of the Constitution in a previously instituted suit, even though when the suit was instituted, no right of appeal to Federal court existed. If law relating to appeal is altered and it reduced the already existing right of appeal, it is presumed to be prospective and will not affect pending proceedings. If any such alteration right of appeal is increased, it will be presumed to retrospective applying to orders subsequently made in pending proceedings, though it will not affect finality of order already made. A retrospective change in law may enable a court to review its earlier decision and to modify if even in the absence of express conferral of such power. Pending Proceeding Litigant has no vested right in any matter of procedure, alteration in procedure law are generally held to be retrospective in the sense that they apply to future as well as to pending actions. Alteration of Substantive Right In the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.
AA Cotton v. Director of Education, AIR 1983 SC Proceedings for selection to the post of Principal were pending before the Director of Education under S 16F of the UP Intermediate Education Act 1921 when the Act was amended taking away the power of the Director of Education to make an appointment. Held: Amending Act could not in the absence of express words or necessary implication be construed to take away the power of the Director in the pending proceedings for selection. Proceedings pending for quantification of compensation in respect of acquisitions already made are not affected by a change in law which enhanced or reduces the rate of compensation unless the new law expressly or impliedly provides otherwise. Application of the Rule to Substantive Right When the law is altered during the pendency of an action, the right of the parties are decided according to law, as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a court in enforcing the law as it stands, its retrospective character must be clearly expressed. When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action had begun, unless the new statute shows a clear intention to vary such rights. The provision taking away the jurisdiction of the civil court cannot be considered to be a mere matter of procedure which should not be held to operate retrospectively. If the suit had been instituted at a time when the civil courts were fully competent to entertain the suit, later amendment cannot without express words, or necessary intendment divest the
court of the jurisdiction which it exercised at the time of entertaining the suit so as to undo the entire proceedings held by the civil court up to the date of the amendment. Such a construction would be contrary to all canons of statutory interpretation and would also tend to defeat the case of justice and fairplay. Whenever it is decided by the legislature to take away or impair vested rights, the decision is taken in public interest. Hardships to individuals are caused, by their interest are subordinated to the public will under the necessity or compulsion of circumstances. Under Section 6 of the General Clauses Act, 1897, repeal of an enactment does not prima facie affect pending actions, unless the legislature has shown a contrary intention either in express words or by necessary implication. The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the act was passed. No vested right in procedure Statute of Limitation: If the statute of limitation, if given a retrospective effect, destroys a cause of action which was vested in a party or make it impossible for that party for the exercise of his vested in a party or makes it impossible for that party for the exercise of his vested right of action, then the courts would not give retrospective effect to the statute of limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the courts would hesitate to attribute to the legislature an intention to do something which was obviously wrong. Rule of evidence: If alteration is made in a rule of evidence, the alterations shall be ordinarily deemed to be retrospective. The law of evidence is a law of mere procedure and does not affect substantive rights. Alterations in the forms of procedure are always retrospective unless there is some good reason or other why they should not be. Retrospective operation of Rules: The subordinate legislative authority/rule making authority has no power to make a rule or regulation with retrospective effect, unless it is expressly empowered to do so. It has been held that Sec. 45B of the Employee’s State Insurance Act 1948, which enables the Employees State Insurance Corporation to recover arrears of contribution from the employers as arrears of land revenue, has been held to be procedural and applicable to arrears falling due before coming into force of the Section. (Employee State Insurance Corporation v. Dwarka Nath Bhargava AIR 1997 SC.)
25. STATUTES IN PARI MATERIA Reference to other statutes- statute dealing with the same subject matter or forming part of the same system. Lord Mansfied: “Where there are different statute in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system and as explanatory of each other” It is not necessary that entire subject-matter in the two statutes should be identical before any provision in one may be held to be in pari materia with provision in the other. Ex: Sec. 4 of the Prevention of Corruption Act 1947, which directs that on proof that the accused has accepted any gratification other than the legal remuneration, it shall be presumed unless the contrary is established by the
accused that the gratification was accepted as a bribe, has been held to be in pari materia with the subject matter dealt with by the Indian Evidence Act 1872. The definition of the expression ‘shall presume’ in the evidence act has been utilized to construe the words it shall be presumed in a S. 4 of the Prevention of Corruption Act 1947. (State of Madras v. A Vaidyanath Aiyer, AIR 1997 SC 301.) Ex: Whether smuggled gold coins constituted ‘goods’ within the meaning of Customs & Excise Act, 1952? Referred to a whole series of Custom Acts starting in 1833, going on to 1876, 1893, 1932 and 1939 and observed that reading through them it was plain that in the Custom Acts ‘goods’ does not include gold and silver coin. Statutes are in pari materia which relate to the same person or things, or to the same class of persons or things. Example: The Industrial (Development and Regulation) Act, 1951 in so far as it deals with textiles industry has been held to be in pari materia with the Textile Committee Act, 1963. The rule that related provisions in different Acts but bearing on the same subject have to be read together. Common Cause, A Registered Society v. Union of India AIR 1996 SC. Explanation 1 to Section 77(1) of the Representation of the People Act, 1951 provides ‘any expenditure incurred or authorized in connection with the election of a candidate by a political party shall not deemed to be-expenditure in connection with the election incurred by the candidate. In construing this provision, the court read sections 13A and 139(4B) of the Income Tax Act, 1961. The Court held that if a political party is not maintain audited and authentic accounts and is not filling return of income, it cannot justifiably plead that it has incurred expenditure under the said section. Sec. 77(1) does not give protection to the expenditure which comes from unknown or black sources. Sec. 293A provides that the main income of a political party comes from contributions from companies which are permitted to make these contributions under the conditions laid down in S. 293A of the Companies Act and are required to disclose them in their profit and loss account. The Schedules to Punjab Town Improvement Trust Act 1936 though not identical, have been held to be in pari materia. a b c
d
Object of the rule It avoids contradiction between a series of statutes dealing with the same subject; The application of this rule allows the use of a an earlier statute to throw light on the meaning of a phrase used in a later statute in the same context; It permits the raising of a presumption, in the absence of any context indicating a contrary intention, that the same meaning attaches to the same words in a later statute as in an earlier statute if the words are used in similar connected in the two statutes; and It enables the use of a later statute as parliamentary exposition of the meaning of ambiguous expressions in an earlier statute. Help from Earlier Statutes
Use of same words in similar connection in a later statute gives rise to a presumption that they are intended to convey the same meaning as in the earlier statute. When words in an earlier statute have received an authoritative exposition by a superior court, use of same words in similar context in a later Act will be give to a presumption that parliament intends that the same interpretation should also be followed for construction of those words in the later statute. In Bengal Immunity Co Ltd v. State of Bihar, AIR 1955 SC 2174 While dealing with Art. 245(1) and 246 of the constitution which are in pari materia with Sec. 99(1) and 100 of the Government of India Act, 1935, Venkarama Aiyer, J. observed that: It is well-settled rule of construction that where a statute is repealed and reenacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the same sense which had been judicially put on them under the Repealed Act because the legislature is presumed to be acquainted with the construction which the courts have put upon the words, when they repeat the same words, they must be taken to have accepted the interpretation put on them by the court as correctly reflecting the legislative mind. In Desh Raj Gupta v. Industrial Tribunal IV, Lucknow, AIR 1990 SC 2174 A decision interpreting a Central Act has been used for interpreting corresponding provision of a state Act holding that they were in pari materia.
It is perfectly legitimatize to refer to repealed acts on the same subject to see whether the legislature has attributed to a particular phrase a definite force for dealing analogous subjects and even to later acts on the same subject. When the new legislation, although re-enacting many provisions from earlier statutes, contains a good deal of fresh material and deals with a subject on which social views have drastically changed, it may not proper to rely on the earlier authorities for construing the new legislation. When there is no ambiguity in the statute, in construing it, reference to any previous legislation or decisions rendered there under may not be permissible.
Help from later statutes It is clearly established that a subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that the subsequent legislation, cannot alter that previous legislation, but if there be any ambiguous in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put into the earlier. Subsequent Acts may be resorted to when the legislature states that a later Act should be read with a former. If there is an inconsistency, later Act will prevail.
26. EXTERNAL AIDS TO INTERPRETATION Recourse to external aid in interpreting a statutory provision would be justified only within well-recognized limits;
a b I i ii
a b c a
Primarily, the effect of statutory provision must be judged on a fair and reasonable construction of words used by the statute itself. If the words of the statutes are explicit and unambiguous, there can be no resort to external aid for their construction. Parliamentary History English practice Traditional view: Intent of the Parliament which passed the Act, is not to be gathered from parliamentary history of the statute. The bill in its original form or the amendments considered during its progress in the legislature are not admissible aids to construction. Recommendations contained in the report which may have led to the introduction of the measures in parliament cannot be used as evidence for the purpose of showing the intention. Modern trend Legislative history of a statute can be looked into for interpreting a provision therein only in case of ambiguity and not otherwise. In Peppar v. Hart (1993AC 466) The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard. Held: The House of Lords departed from Davis v Johnson and took a purposive approach to interpretation holding that Hansard may be referred to and the teacher was not required to pay tax on the perk he received. “Reference to parliamentary material/ speeches for construction can be made only where the legislation is ambiguous obscure or its literal meaning leads to an absurdity. To find out the meaning of a law, recourse may legitimately be had to the prior state of law, the evil sought to be removed and the process by which the law was evolved. It cannot control the meaning. Indian View Statement of objects and reasons Statement of the Minister who had moved the bill in parliament can be looked at to ascertain mischief sought to be remedied by the legislation and object and purpose for which the legislation is enacted. It cannot be used to determine the true meaning and effect of the substantive provisions of the statute. Nor can control the actually words used in provisions of the constitution. Reference to the statement of objects and reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute was sought to remedy.
The weight of judicial authority leans in favour of the view that the statement of objects and reasons cannot be utilized for the purpose of restricting and controlling the plain meaning of the language employed by the legislature in drafting a statute and excluding from its operation such transactions which it plainly covers. A.K Gopalan v. State of Madras, AIR 1950 SC ‘A speech made in the course of the debate on a bill would at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all the legislators were in accord’. Kesavand Bharathi v. State of Kerala AIR 1973 SC Sikri C.J. observed…. Speeches made by members of legislative in the course of debates relating to an enactment of a statute cannot be used as aids for interpreting any of the provisions of the statute. Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other. Speeches in the Constituent Assembly could always be perused to find out the true intention of the framers of the constitution regarding the interpretation of the constitution. Indira Sawhney v. Union of India, AIR 1993 SC 477. The Supreme Court referred to Dr. Ambedkar’s speech in the Constituent Assembly while interpreting Art. 16(4). The expression background class of citizens is not defined in the constitution, reference of such debates is permissible to ascertain at any rate the context, background and objective behind them. Statement of objects and reasons accompanying a bill cannot be used to determine the true meaning but they can be used for understanding the background and the antecedent state of affairs leading upto the legislation.
27. PARLIAMENTARY HISTORY a. Report of Commissions and Committee Select Committee Report: The report of the committee which proceeded the enactment of a legislation, report of joint parliamentary committee, report of commissions set up for collecting information leading to the enactment, are permissible external aids to constructions. Badrilal v. Sitabai AIR 2011 MP Section 12(1)(f) of the Madhaya Pradesh Accommodation Control Act, 1961, read as ‘continuing or starting his business or that of any of his major sons or unmarried daughters.’ Whether a tenant could be evicted on this ground by the land lord? The Select Committee had opined that the provision of requiring accommodation for starting a business for any member of his family was likely to be misused by the landlord and hence, it though fit to restrict the provision to major sons and unmarried daughters of the landlord.
Relaying on this said opinion of the Select Committee, the court held that the legislative intent behind the provision was not to allow the landlord to evict a tenant to start a business for any member of the family. Hence. The court decided against the landlord. White Paper: White paper issued by the government detailing the facts leading to enactment of a statute is also admissible for understanding the background when the court is called upon to interpret and decide the validity of the statute. Example: Supreme Court made extensive reference to the while paper for understanding the background of the Ramjanma Bhumi Babri Masjid dispute in deciding the reference made under Art. 143 and constitutionality of the acquisition of certain areas of Ayodhya Act, 1993 (M. Ismail Faruqqui v. Union of India, AIR 1995 SC) Report of Commissioners Appointed by State: If the meaning of statute is doubtful report of committee may be consulted. The Supreme Court referred to several reports of commissions and opinions of experts, and relied upon them while discussing the death by handing was not violative of art. 21 of the constitution. (In Deena v. Union of India, AIR 1983 SC) Report of a special committee proceeding the enactment, existing state of law, report of a commission set up for collecting information leading to enactment, the environment necessitating enactment of the legislation are used for gathering the real intention of the parliament are permissible external aids to construction. Recommendations of the Law Commission-(where a particular enactment or amendment is the result of recommendation of the Law Commission of India).
b. Proceedings in Parliament Debates: The debate upon the bill, the fate of amendments proposed and dealt with in committee of either House cannot be referred to, to assist in construing the language of the Act. Individual opinion of members of the convention expressed in the debate cannot be referred to for the purpose of construing the constitution. Speech at Introducing Bill The court whilst interpreting S. 5 of the Interest Tax Act 1974 held that even if there were any ambiguity in the matter under consideration, the budget speech of the Minister of Finance while introducing the Finance Bill, has made the same clear. Such a speech can be relied upon to throw light on the object and purpose of the particular provisions introduced by the Finace Bill. (Kerala State Industrial Development Corporation v. CIT. AIR 2003 SC) Clear and unambiguous statement made by minister in Parliament are as much background to the enactment of legislation as while papers and parliamentary report. Assurance on behalf of Government is not admissible. Sushila Rani v. Commissioner of Income-tax & Anor. (2002) SCC 697 While considering the provisions of Kar Vivad Samadhan Scheme 1998, the Supreme Court had considered the statement of the finance minister while explaining the object of the said scheme.
Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC. Supreme Court considered the constitutionality of various state legislations banning slaughter of certain animals, reference were made to religious books.
2. Historical facts and surrounding circumstances Court will take into account such external or historical facts as may be necessary 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. Rule permits recourse to historical work, pictures, engravings and documents where it is important to ascertain the ancient facts of a public nature. The policy followed in the working of an earlier Act can be presumed to be known to parliament while legislating subsequently on a related subject. Justice Murkherjee J. emphasizes that….. For the purpose of appreciating the scope and object of an old statute and for explaining its language which may be susceptible of different meanings it may be useful to remember the well-known historical facts which led to the enactment. “It is a settled canon of construction that the interpreter should place himself, as far as possible, in the position of those whose words he is interpreting and the meaning of certain words and terms used in an ancient document or a statute can be properly explained only by reference to the circumstances existing at the time when the statute was enacted the document was written.” Role of Legislative Histories in Statutory Interpretation When the law is unclear on its face, the courts look to what they call the legislative history. Legislative histories are seldom helpful to lawyers and judges in directly ascertaining the meaning of statutes. Justice Oliver Wendell Holmes asserted “I don’t care what [the legislature’s] intention was. I only want to know what the words mean.” It is the responsibility of the court to find out intent, if possible. Suppose if the intent is thoroughly confused or undiscoverable for other reasons, intent must be inferred. Dworkin’s coherence theory of statutory interpretation Statute should be interpreted to advance the policies or principles that furnish the best the political justification for the statute. Statutory interpretation must be consistent with the statutory wording itself and must find substantive support in the political climate at the time of its enactment. Statutes over time will diminish the influence of legislative histories because of the social or legal circumstances have significantly changed since enactment of statute. Report of official commission, judicial council or executive branch committee are considered authoritative provided it is directed to the same purposes as the resultant statute. Even if legislative intent cannot be inferred directly from a legislative history, then, the history can often be of some assistance in construing a statute. Pepper (Inspector of Taxes) v Hart [1992] U A landmark decision of the House of Lords on the use of legislative history in statutory interpretation. The court established the principle that
when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Explanatory notes issued by the departments concerned before a bill is introduced in parliament, though not forming part of the bill, may also be admitted. 28. PENAL-2
Reema Aggarwal Vs.Anupam and Ors. AIR 2004 SC Section 304B and 498A of the Penal code, having regard to the object of preventing cruelty to women The expression ‘husband’ has been construed to cover a person who enters into marital relationship with the women concerned whatever may be the legitimacy of the marriage. Adopting wide meaning of a provision, the undesirability of adopting anything beyond a strict construction of provisions having penal approach to effectuate the purpose of the Act. R V. Fellow Whether the computer data in the archive was considered a photograph under section 1 of the 1978 Act. If it was not considered a photograph, is the computer disk a copy? Did the 1978 Act and 1959 Act, before they were amended in 1994, have a wider scope? Whether the computer data that was in Fellows possession was distributed, or shown, by being made available for downloading to other computer users. Judgment The computer data within the archive was considered a photograph for the purposes of section 1 of the 1978 Act. Even though the computer disc is not itself a photograph, the court held that there is nothing in the Act which makes it implicit that the copy must be an actual physical photograph The data stored in a computer disc, a technology not anticipated in 1978, was held to amount to ‘indecent photograph’ within the meaning of section 1 of the protection of Children Act, 1978
Dowry Prohibition Act (28 of 1961) The expression ‘or any time after marriage’ and ‘in connection with marriage of the said parties’ are of wide meaning and scope. The expression in connection with the marriage even in common parlance and on its plain language has to be understood generally. The expression ‘soon before her death’ cannot be given a restricted or a narrower meaning.
Salil Bali v. Union of India, 2013 SCC The judiciary took a liberal view with regard to the juvenile accused and said that the age of maturity should be kept at 18 years and not decreased to 16 years. The case also led to the subsequent enactment of the Criminal Law Amendment Act, 2013 that has included all forms of penetration without consent as rape. Ashok Kumar v. State of Haryana, AIR 2010 SC There was an allegation that the accused husband and in laws of the deceased used to harass and beat her and on the fateful day they burnt her for not bringing enough dowry. The Supreme Court held that the expression ‘in connection with any demand for dowry’ in section 304-B of the Indian Penal Code cannot be given a restricted or narrower meaning. Even in common parlance and on its plain language is has to be understood generally. The object being that everything which is offending at any time, that is to say, at before or after the marriage, would be covered under this definition, but the demand of dowry has to be ‘in connection with the marriage and not so customary that it would not attract the provision of this section. The expression ‘soon before her death’ must be understood in common parlance. The concept of proximate link between the acts of cruelty along with demand for dowry and death of the victim. In view of the accused persons were convicted under section 304-B, Indian Penal Code. Appasaheb v. State of Maharashtra, AIR 2007 SC 763 The Supreme Court held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. As for the definition of ‘dowry’ in the Dowry Prohibition Act, 1961 the giving or taking of property or valuable security must have some connected with the marriage of the parties which is absent in the present case. In view of the above the conviction of the appellant under section 304-B, Indian Penal Code for dowry death was set aside Sakshi v. Union of India, AIR 2004 SC The Supreme Court remarked that the rape, defined under Section 375 of the Indian Penal Code, only heterosexual intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape is sufficient. All forms of penetration such as penile/vaginal, penile/oral, penile/anal, finger/vagina and finger/ and penetration are not covered within it. Since there is no ambiguity in the definition, it is not desirable to create chaos by wrong judicial interpretation. Vishakha v. Union of India- AIR 1997 SC- changing judicial interpretation with respect to sexual harassment. A landmark case that revolutionized the law relating to sexual harassment in India. In 1992 a social worker by the name of Bhanwari Devi was brutally gang raped by five upper caste men due to her campains against child marriage. The victim filed a case against the accused but the trail court acquitted them. A few women’s group and NGOs along with cast a liability
on the state due to their inability to have a policy with regard to sexual harassment of their women workers. In the first of its kind judgment, the Supreme Court bench headed by Chief Justice verma invoked the Universal Declaration of Human Rights and the CEDAW principles to create comprehensive guidelines for dealing with sexual harassment of women at workplace. Parliament passed Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressed), Act, 2013
29. PRECEDENT AND INTERPRETATION-I An earlier interpretation of a statutory provision influences subsequent interpretation, though the extent of the influence varies depending upon whether the later Court views the earlier decision as persuasive or binding. Article 141 of the constitution of India provides that “the law declared by the Supreme Court of India shall be binding on all the courts within the territory of India.” The Interpretation approved by the Supreme Court becomes an integral part of the statute. It should be accepted and followed. A precedent is a judicial decision which contains in itself a principle. Juristic opinion on precedents Acc. Salmond ‘is a judicial decision which contains in itself a principle’. Acc. Julius Stone says: “Precedents become rather pegson which to hand judgment than an explanation of the process of reaching it. While this is not itself an evil, it is likely to become one at the point when the peg chosen for hanging the present decision was manufactured in a different factual context and with a different purpose from the instant case”. A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is termed the ratio decidendi. While the concrete decision is binding between the parties to it; the abstract ratio decidendi has the force of law as regards the world at large. The only use of authorities or decided cases is the establishment of some principle, which the judge can follow in deciding the case before him. Every court is under an obligation to follow the precedent laid down by a court superior to it. A magistrate is bound to follow the authority of the high court, and it is his duty to keep himself informed of its decisions. Failure to do so is a dereliction of duty on his part. The theory of precedents consists of the following three well recognized ingredients a. Finding of material facts, direct and inferential. An inferential finding of facts is the inference which the judge draw from the direct, or perceptible facts, b. Statements of the principles of law applicable to the legal problems disclosed by the facts; and c. Judgment based on the combination of (a) and (b) above Stare Decisis
‘To stand by decisions and not to disturb what is settled’. A principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases. It envisages that the lower courts are bound b the decisions of the higher courts. Art. 141 provides ‘ the law declared by the Supreme Court shall be binding on all courts within the territory of India’. Supreme Court emphazing upon the need for the court to follow the principle of stare decisis, has observed: ‘Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial decision, the court have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy and if these are not followed by courts then there will be chaos in the administration of justice’. The doctrine of stare decisis shall be no fetter to the Supreme Court to overrule an earlier decision, if it is found that such decision is manifestly wrong. A principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. The rule is based on expediency and public policy. It is however not universally applicable. Rule of stare decisis bring about consistency, certainty and uniformity. Previous decision should not be followed to the extent that grievous wrong or erroneous. Ratio Decidendi The ratio decidendi of a decision is the principles of law formulated by the judge for the purpose of deciding the problem before him. Prof. Goodhart the principle of the case is found by taking into account- a. the facts treated by the judge as material; and his decision as based on them. Authoritative or persuasive An authoritative precedent is one which the court, before whom it is cited, is bound to follow whether it approves of the principles or not. A persuasive precedent is one which stands on its own merits and which the judges are not bound to follow. The law laid down by the Supreme Court shall be binding on all courts within the territory of India (Art.141). Supreme Court may depart from its previous decision, if it is convinced of its error and its law full efforts on the general interest of the public. Decision of the Privy Council are not binding on the Supreme Court, and the Supreme Court can declare a decision of the Privy Council as not sound. Decision of High Court on local statute plays important role. When a division bench differs from the decision of a previous decision of another decision bench, the matter should be referred to a larger bench for final decision. Court of co-ordinate jurisdiction Observation made with reference to the construction of one statute cannot be applied with reference to the provision of another statute which is not in pari materia with the statute which forms the subject matter of the previous decision. Obiter dicta
Observation as to the law made by a judge in the course of a case relating to the problem arising for decision, though they may have great weight as such as not conclusive authority. Obiter dictum is an opinion on some point which is not necessarily for the decision of the case Carnelius v. Phillips [1918 AC] Dicta by judges, observed Lord Haldane ‘however eminent, ought not to be cited as establishing authoritatively propositions of law unless the dicta really form integral parts of the train of reasoning directed to the real question decided’. The general observations of Lordships of the Supreme Court too are entitled to great weight. A certified true copy of the decision of the High Court is binding on the court inferior thereto. Reliance on Precedents in Pre- Independence India During the British regime in India, the judicial committee of the Privy Council exercised the highest appellant judicial authority in India. Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. Previous decision should not be followed to the extent that grievous wrong may result, and accordingly the courts ordinarily will not adhere to a rule of principle established by previous decisions which are convinced is erroneous. Binding value of Privy Council decisions in post Independence India The decision of the Privy Council are now not binding on the Supreme Court, and the Supreme Court can declare a decision of the Privy Council as not sound. Before 1950, the law laid down by the Privy Council was the law of the country. After 1950, the decisions of the Privy Council have only persuasive authority. Reliance on English and Foreign precedents The judgments of the superior courts of England and United States of America are only persuasive precedents. The judges of India are under no obligation to follow them but, in many cases, they have followed it, though they have not hesitated to differ from them when they conflicted with the statutory provisions contained in Indian Act. Where the provisions between the English Act and the Indian Act, are in pari materia; where local conditions do not materially differ from the conditions in UK, then keeping Indian conditions in view the outlook adopted by the English courts may be examined, and if consistent with local jurisprudence, and social condition, then path chalked out for the movement of the law is profitable then assistance may be obtained from the decision. But ignoring all the relevant considerations, English decisions cannot be bodily imported into the Indian legal system to create a hybrid legal system. It is not right to be so hypnotized by English decisions as to overlook legislative changes introduced in Indian Law. In Liverpool and London SP & I Association v. MV Sea Success (2004) 9 SCC 512
The Supreme Court observed as follows: “It is true that this court is not bound by the American decisions. The American decisions have merely a persuasive value but this court would not hesitate in borrowing the principles if the same is in consonance with the scheme of Indian law keeping in view the changing global scenario. Global changes and outlook in trade and commerce could be a relevant factor. With the change of time; from narrow and pedantic approach, the court may resort to broad and liberal interpretation. What was not considered to be a necessary a century back, may be held to be so now”. Where the Indian statute practically reproduces the English enactment, it would not be proper to neglect the judicial decisions in England. Ex: The Law of Trade Marks adopted Indian Trade Mark Act merely reproduces the English law with only with slight modifications, a reference to the judicial decisions on the corresponding section of the English act is helpful. ‘English decisions are not precedent which governs us, but are only referred to for the purpose of finding out the principle underlying those decisions and to explain the Indian statutes which are usually framed with reference to those decision’. The provisions of the Indian statute must be understood in their background and setting in interpreting them, regard must be had to the conditions, customs and religious belief of those affected by the provisions. National Textile Workers Union v. P.R Ramakrishnan, AIR 1983 SC. While dealing with aspects of the value to be attached to decisions of English courts J. Bhawati, J “ A legal rule which found with the English courts in the last century when the doctrine of laisses-faire prevailed. Should not be mechanically accepted as valid merely on the ground that it has been accepted as valid rule in England and is still being followed there. The court in India will have to build their own jurisprudence and though they may receive light from whatever source it comes, they cannot surrender their judgment and accept as valid in India whatever has been decided in England.” Whether Supreme Court bound by its own decisions “There is nothing in our constitution which prevent us from departing from previous decision if we are convinced of its error and baneful effect on the general interests of the public.”Article 141 only enacts that the decisions of this court are binding on all courts, and that does not stand in the way of this court itself, reversing or modifying a previous decision, as when that is done, such decision would therefore became itself the law under that article. Decision on question of facts not binding Question of fact, cannot be binding and cited as precedents governing the decision of other cases
30. PRECEDENT AND INTERPRETATION-II Exceptions to Binding Precedent If two judges Bench find a judgment of a three judges Bench to be so incorrect that it cannot be followed in any circumstances, keeping view of judicial
discipline and propriety, the proper course is to refer the matter before it to another Bench of three judges. (Pradip Chandra Parija v. Pramod Chandra Patnaik, AIR 2002 SC 296) It is impermissible for a High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down legal position without considering any other point. High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court. (Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420.) When a court differs from the decision of a co-ordinate bench of a Single Judge of High Court, the decision should be referred to Larger Bench. If a division bench of a High Court differs from the view expressed by another division bench of the same court, it is appropriate that the matter is referred to a larger bench. (Rajesh Kumar Verma v. State of Madhya Pradesh and others, AIR 1995 SC 1421). When there is a conflict of opinion that is when there is disagreement by one single judge with the decision of another single Judge it is appropriate that the appropriate course is to refer the matter to a larger bench for an authoritative decision. One Full Bench decision cannot over rule another Full Bench Decision delivered by Judges of equal strength. Circumstances weakening the bidingness of precedents Abrogated decisions
A decision ceases to be binding if a statute or statutory rule is inconsistent with it is subsequently enacted or if it is reversed or overruled by a higher court. Ignorance of statute A precedent is not binding if it was rendered in ignorance of a statute or rule having the force of statute. Such decisions are per incuriam and not binding. The mere fact that the earlier court misconstrued a statute or ignored a rule of construction is no ground for impugning the authority of precedent. To come within the category of per incuriam it must be shown not only that the decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens. Sub silentio Precedents sub silentio or not argued: A decision passes sub silentio when the particular point of law involved in decision is not perceived by the court or present to its mind. When a decision is on point A upon which judgment is pronounced but there was another point B on which also court ought to have pronounced before deciding the issue in favour of the party, but that was not argued or considered by the Court. In such circumstances although point B was logically involved in the facts and although the case had a specific outcome, the point B is said to pass sub silentio. (Gerard v. Worth of Pipers Ltd (1936) 2 All. E R 905(A))
A precedent is not destroyed merely because it was badly argued, inadequately considered and fallaciously reasoned. Total absence of argument vitiates the precedent. A decision is an authority only for what it actually decides and not for what may logically or remotely follows from it. Decision on a question which has not been argued cannot be treated as precedent. M/s. Goodyear India Ltd. v. State of Haryana and another, AIR 1990 SC 781. Distinguishing A binding precedent is a decided case which a court must follow. But a previous case is only binding in a later case if the legal principles involved are the same and the facts are similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by judges usually in order to avoid the consequences of an earlier inconvenient decision which is, in strict practice, binding on them. Even Apex Court is bound by its earlier decisions. It is only when the Supreme Court finds itself unable to accept the earlier view; it shall be justified in deciding the matter in a different way. Overruling A higher court can overrule a decision made in an earlier case by a lower court eg. The Court of Appeal can overrule an earlier High Court decision. Overruling can occur if the previous court did not correctly apply the law, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable. The Apex Court, which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or public inconvenience. The Court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. Reversing Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision. Non speaking order Non speaking order dismissing special leave petition would not constitute binding precedent as to the ratio of the High Court involved in the decision against which special leave petition to appeal was filed. (Ajit Kumar Rath v/s State of Orissa (1999) 9 SCC 596) on facts If a judgment is rendered merely having regard to the fact situations obtaining therein , the same could not be declaration of law within meaning of Article 141.(UP State Brassware Corp. Ltd v. Uday Narain Pandey AIR 2006 SC 586 ; (2006)1 SCC 479) There is nothing in the Constitution which prevent the Supreme Court from the reversing its previous decision. (State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997: 1967(2) SCR 170.) Decisions per incuriam Per incuriam is a doctrine often invoked in declining to follow a particular decision for certain reasons. A judgment per incuriam need not be followed as binding precedent.
Where ratio decidendi in a decision has been laid down in ignorance of the provisions of the Act conferring jurisdiction, is not a binding precedent. Where certain views are expressed without analyzing statutory provision it cannot be a binding precedent and at the best it would be a decision per incuriam. A Judgment is per incuriam if it is rendered in ignorance of a binding authority. A judgment is per incuriam if it is rendered in ignorance of a statute or a rule having the force of a statute. Use of Foreign Judicial Decisions1 The decisions of the European Court of Human Rights (ECHR) and European Court of Justice (ECJ) have been extensively cited by courts in several non-EU countries as well. This also opens up the possibility of domestic courts relying on the decisions of other supranational bodies in the future. When a domestic court may cite the decision of a foreign court on the interpretation of obligations applicable to both jurisdictions under an international instrument. For example, Courts in several European countries freely cite each other’s decisions that deal with the interpretation of the growing body of European Community (EC) law. Judges in India routinely cite precedents from U.S. Courts besides other foreign jurisdictions and international law. There is also a distinct tendency on part of Indian Courts to refer to academic writings, especially those from law reviews published by American Universities. A foreign precedent should only be assigned persuasive value and cannot be relied on when it clearly runs contrary to existing domestic law. It is true that the socio-political conditions prevailing in different jurisdictions will pose legal problems particular to them, but there is no reason why constitutional courts in these countries should not benefit from each other’s experiences in tackling them. The first Commonwealth judicial colloquium held in Bangalore was resulted in the declaration of the Bangalore Principles which deal with how national courts should absorb international law to fill existing gaps and address uncertainties in domestic law. The Bangalore principles have gradually found wide acceptance with judges in many jurisdictions looking towards the growing body of international human rights law to streamline their domestic laws. This also creates compelling reasons for constitutional courts in different jurisdictions to look to each other’s decisions. Courts in independent India have frequently relied on decisions from other common law jurisdictions, the most prominent among them being of the United Kingdom, United States of America, Canada and Australia. The opinions of foreign courts have been readily cited and relied on in landmark constitutional cases dealing with questions such as the ambit of the right to privacy, freedom 1 Reference: THE ROLE OF FOREIGN PRECEDENTS IN A COUNTRY’S LEGAL SYSTEM Lecture at Northwestern University, Illinois (October 28, 2008) By Justice K.G. Balakrishnan, Chief Justice of India
of press, restraints on foreign travel, the constitutionality of the death penalty, broadcasting rights and prior restraints on publication. Maneka Gandhi v. Union of India, case concerning restrictions on the issue of a passport to the petitioner, the Supreme Court of India read in the ‘substantive due process guarantee’ into the language of Article 21. Prior to this decision, the Indian Courts had applied the lower threshold of ‘procedure established by law’ to evaluate the validity of governmental action that curtailed personal liberty. This decision heavily drew from U.S. decisions and laid down the position that governmental action was subject to scrutiny on multiple grounds such as fairness, reasonableness and non-arbitrariness. By enumerating the theory of ‘inter-relationship between rights’ a foundation was laid for the creative expansion of the ambit of Article The decision in Sunil Batra v. Delhi Administration (II) prominently invoked academic Edward Corwins’s writings on the Eighth amendment (‘right against cruel and unusual punishment’) in order to implement reforms in prison conditions. Reliance was also placed on a British parliamentary white paper entitled “People in Prison”. In the said judgment, lower court judges were directed to personally inspect their jurisdictional prisons once a week, receive complaints from individual prisoners, take remedial measures and provide grievance mechanisms that were easily accessible to all prisoners. Freedom of speech and expression’, the Indian Courts have repeatedly cited decisions related to the First Amendment to the U.S. Constitution. In Indian Express Newspapers v. Union of India, the Supreme Court held that the imposition of a tax on the publication of newspapers violated the constitutional right to freedom of expression, which also incorporates freedom of the press. In a series of decisions invoking international legal materials, the Court has articulated and expanded the ‘right to a healthy environment’ as an extension of the right to life and personal liberty. In Subhash Kumar v. State of Bihar, it was held that a slow, steady, and subtle method of extinguishment of the quality of life, i.e. severe pollution - was violative of the right to life. Likewise, in Virender Gaur v. State of Haryana, it was reiterated that Article 21 includes a right to a clean environment. In M.C. Mehta v. Union of India, the Court discussed several provisions of the 1972 United Nations Stockholm In the realm of gender justice it is important to mention the decision in Vishaka v. State of Rajasthan. This litigation originated on account of the gang-rape of a social worker and the Court proceeded to frame guidelines for the prevention of and redressal for sexual harassment at the workplace. This act of ‘judicial legislation’ was prompted by the absence of any statutory law on the point and extensive reliance was placed on the provisions of the Convention for Elimination of all forms of Discrimination Against Women (CEDAW). 31. PRESUMPTION-I Legal Roots of Presumption
A presumption in the ordinary sense is an inference; it comes into operation only in the absence of relevant information or evidence, is an anticipation of something yet unproved. It is tentative and provisional rather than absolute and final.
a b c d e
A presumption may be defined to be an inference required by a rule of law drawn as to the existence of one fact from the existence of some other established basic facts-it is a true presumption of fact in the sense that another fact is assumed from established facts. It is a presumption of law in the sense that a rule of law requires the assumption to be made. Acc. to Stephen’s language, “a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of the evidence is disproved” Examples: the person accused of a crime is innocent that the child born in wedlock is legitimate, as is one born within eleven months of the husband’s death. that a person missing for seven years or more is dead that young children (under the age of seven) cannot commit a felony. That a document over 30 years old is genuine. Nature of Interpretative Presumptions Presumption is to accept something in the absence of the further relevant information that would ordinarily be deemed necessary to establish it. Interpretative presumptions are not distinct from rules and principles of law, but are to a large extent drawn from them. Presumptions have majorly been deduced from the common law and have been used in the Indian context. Presumptions that are attached to various legislations are not strictly codified but have a binding effect on the statutes as if these presumptions are a well codified and binding part of the law. The presumptions, when coupled with the legislation are extremely helpful in figuring out the true intention of the legislators. Various presumptions of interpretation
I
Statutes are presumed to be valid A statute must be so construed as to make it effective and operative “on the principle expressed in the maxim: ut res magis valeat quam pereat” Court while pronouncing upon constitutionality of a statute start with a presumption in favour of constitutionality and prefer a construction which keeps the statute within the competence of the legislature. Farwell, J “Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning, and not to declare them void for uncertainity”. Acc. to Holmes, J., “the rule requires that “the statute must be construed in such a way as not merely to save its constitutionality but so far as it is consistent with fair interpretation, not to raise grave doubts on that score”. If certain provision of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction. Limitations of the rule Delhi Trasnsport Corn. V Dtc Mazdoor Congress, AIR 1991 SC
Delhi Road Transport Authority Act, Regulation 9(b) conferring unrestricted power to terminate the service of a permanent or confirmed employee and expressed in unambiguous terms, was not read down to save it ad was declared ultra vires offending Article 14 and 21 of the constitution. Severability When a statute is in part void, it will be enforced as against the rest, if that is severable from what is invalid. Following are the rule of construction of severability a b c
d e f
II
III
In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirely. Even when the provisions which are valid are distinct and separated from those which are invalid, if they all form part of a single scheme which is intended to operate as a whole, then also the invalidity of part will result in the failure of the whole. What is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirely. If after the invalid portion is expunged from the statute what remain cannot be enforced without making alternations and modifications therein, then the whole of it must be struck down as void. While determining the legislative intent on the question of separability, it will be legitimate to make into account the history of the legislature, its object, the title and the preamble to it. Presumption that text is primary indication of legal meaning The interpretation must be done by looking at the text of the statute and give the interpretation as the text, in itself, means in law. Barell v. Fordree, Lord Warrington of Clyfee said “The safer and more correct course of dealing with a question of construction is to take the word themselves and arrive, if possible, at their meaning, in the first instance, reference to the cases.” Presumption that literal meaning to be followed When the literal meaning is straightforward. If the grammatical meaning when applied to the facts of the case is ambiguous, then any of the possible grammatical meaning that could be accorded to be statute may be described as the literal meaning. Courts of law have to presume that the particular of law is intra vires and not ultra vires.
Presumption of constitutionality burden on one who attack it IV Presumption that rectifying construction to be given: It is always presumed that the legislator intends the courts to apply a construction which rectifies any error in the drafting of the enactment, where it is required in order to give effect to the intention of the legislator. R v Moore.
In this case it was held that, the court is presumed not to rely on the drafting of the enactment if any error is apparent and by means of such error the intention of the legislature is defeated. In such cases, the interpreter may deviate from the drafting of the statute and provide an interpretation that rectifies any such error. The language of the legislature must be modified, in order to avoid inconsistency with the manifest intentions. The reason behind such presumption being that any person should not take any undue advantage of the errors in drafting by defeating the intent of the legislature. V. Presumption that updating construction to be given: R (on application of Quintavalle) v Secretary of State for Health “A construction which takes account of the relevant changes which have occurred since the enactment was originally framed but does not alter the meaning of its wording in ways which do not fall within the principles originally envisaged by that wording.” The interpreter must take into account the relevant changes occurred and must interpret in a manner befitting the present scenario. It must be always noted that the interpretation must never be contradictory to the principles originally envisaged by the wordings or the intention of the legislature in framing the statute. VI. Presumption that the court is to apply remedy provided for the ‘mischief’ The legislature intends the interpreter, in construing the statute, to endeavor to apply the remedy provided by it in such a way as to suppress the ‘mischief’.
32. PRESUMPTION-II VII. Presumption that enactment to be given a purposive construction The statute, with the aim of suppressing the mischief, must advance the remedy which is indicated by the words of the statute for the mischief being dealt with, and the implications arising from those words, should aim to further every aspect of legislative purpose. The construction of the statute which cures a particular mischief and promotes the remedy as provided by the legislature is known as purposive construction. While construing an enactment, it is presumed that the enactment shall be given a purposive construction by the interpreter. Consideration of the purpose of the enactment is always a legitimate part of the process of interpretation. VIII. Presumption that absurd result not intended: It is presumed that the construction or interpretation of a statute must not be such that it leads to absurd consequences. The reason for such a presumption is that an absurd conclusion is very unlikely to be intended by the legislature. In the case of R (on the application of Edison First Power Ltd) v Central Valuation Officer and another, Lord Millett observed“The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or
unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.” IX. Presumption that evasion not to be allowed: It is always presumed that the interpreter shall prefer a construction which supports the intention of the legislators rather than a construction that evades the intention of the legislator. X. Presumption that the words in a Statute are used precisely and not loosely The general rule used in holding such presumptions is verbis legis non est recedendum- You must not vary the words of a statute. The interpreter must not make any interpretation contrary to the express words of an enactment. In the case of Spillers Ltd. v Cardiff (Borough) Assessment Comm it was observed by Lord Hewart, C.J.“It ought to be the rule and we are glad to think that it is the rule that words are used in an act of Parliament correctly and exactly and not loosely and inexactly.” XI. Presumption that vested rights are not taken away without express words or necessary implications or without compensation: A statute generally, is not given a retrospective operation to take away a vested right, except in such situations where in the intention of the legislature is to give retrospective effect to the enactment. Also, it is presumed that the interpreter will not construe the statute in a manner as to deprive persons of their properties without payment of compensation unless such a conclusion is ineluctable. Inglewood Pulp Co. v New Brunswick Electric Power Commission, it was held“….and the rule has long been accepted in the interpretation of statutes that they are not to be held to deprive individuals of property without compensation unless the intention to do so is made quite clear.” United Provinces v Atiqa Begum, “It is a well-recognized rule that statutes should, as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a court in enforcing the law as it stands, its retrospective character must be clearly expressed.” XII
Mens Rea is generally required for a criminal act: It is always presumed that an interpreter of a statute must not find a man guilty of any criminal act unless the person is proved to have a guilty mind. Actus non facit reum nisi mens sit rea. In the case of Brend v Woo, Lord Chief Justice of England observed: “It is in my opinion of the utmost importance for the protection of the liberty of the subject that the court should always bear in mind that, unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent
part of crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind.” It is thus presumed that the requirement of the mens rea (guilty mind) is a must for convicting a person of a criminal offence. The plain words of the statute are read subject to the presumption that no crime can be committed unless there is mens rea. Such a measure is resorted to in public interest and moral justification of laws of strict liability. Offences of strict liability do not violate the principle of fair procedure and the principle that everyone charged shall be presumed to be innocent until proven guilty according to law. XIII Presumption government bound by the statute/ Statute affect the State Since a law is passed by the crown for its subjects, there is a presumption that a statute does not bind the crown. The crown, by passing a statute, does not wish to harm his own interest nor does he wish to interfere with his own rights. Therefore, the normal presumptions that the crown is not bound by a statute unless so is provided by express terms of the statute or by necessary implication. According to Maxwell, this presumption extends to the Crown’s servants and agents also but there are many persons and bodies whose position as servants or agents of the crown is not altogether clear and their liability depends on the nature of the function performed by the person or body in question. Maxwell states that the Crown may be held to be bound by a statute in the following four casesa Where the crown is clearly bound by a provision in which it is expressly stated to be bound under statute; b Where the intention to bind the crown is manifest; c Where the prerogative, rights or property of the crown are not in question; and d Where a statute is for advancement of religion or learning and for the maintenance of the poor; or for suppression of wrong, or for performing the will of a donor. By the passage of the Crown Proceeding Act, 1947 the area of liability of the Crown has been widened very considerably. In India, the question whether the state is bound by a statute or not does not seem to be clear beyond doubt. The Supreme Court till 1964 had consistently been deciding following the English Presumption, that the State is not bound by a statute unless expressly named therein or included by necessary implication. But the position seems to have changed since 1967. Since that year Supreme Court has been holding that the presumption under English law is not applicable in India. It is always presumed that the government is also bound by a statute unless excluded expressly or by necessary implication In the landmark judicial decision of K. M. Nanawati v State of Bombay, it was observed that“The State is bound by the Code of Civil Proceeding , the scheme of the code being that subject to any special provision made in that regard, as respects governments, it occupies the same position as any other party to a proceeding before the court.”
Thus, the state is presumed to be bound by the law unless it has been expressly intended by the legislators not to be bound by the law.
Samatha v. State of Andhra Pradesh, AIR 1997 SC. Section 3(1)(a) of the Andhra Pradesh Scheduled Area Land Transfer Regulations, 1959. Under this provision no ‘person’ is authorized to transfer any land in the scheduled area to a non-tribal person. The Supreme Court while interpreting the word ‘person’ in this provision held that the ‘government’ is also included within the word ‘person’ and as such even the government cannot transfer land in the scheduled area to a non-tribal person.
Satya Narain v. Distt. Engineer, AIR 1962 SC It has been held that Roadways Deptt. Of the State was liable to pay toll tax under section 15, Northern India Ferries Act, 1876. XIV. Presumption that the jurisdiction of the courts is neither enlarged nor decreased There is a strong presumption that statute should not be construed so as to take away the jurisdiction of superior courts, or so as to extend that jurisdiction by giving a right of appeal. For example, there is a strong presumption that civil courts have jurisdiction to decide all questions of civil nature. The exclusion of jurisdiction of civil courts is therefore not to be readily inferred. There can be any such exclusion of jurisdiction only when the same is either “explicitly expressed or clearly implied. The jurisdiction is bestowed in a court by a legislation, legislation alone can take away the same. The parties to a dispute can neither create by mutual consent jurisdiction of court to try their dispute nor can they take it away by mutual consent if in fact a court is vested with jurisdiction in the matter. Mutual consent of the parties, can create an arbitrator and the arbitrator may be a judge also. The basis of such a principle is that the law presumes that a remedy in the ordinary civil courts must always be available to a citizen unless a contrary intention unmistakably appears from the terms of a statute. According to such presumption of legislation a jurisdiction of a court can be enlarged only where the legislator has expressly intended to do the same. The creating of new jurisdiction or enlarging the existing ones cannot take place by means of any sort of implication but only through express language of the legislator. Legislation that gives jurisdiction to subordinate courts, tribunals and government agencies must be strictly construed and the procedure prescribed by the legislation, if any should be strictly adhered to in the judicial interpretation. According to such presumption of legislation a jurisdiction of a court can be enlarged only where the legislator has expressly intended to do the same. The creating of new jurisdiction or enlarging the existing ones cannot take place by means of any sort of implication but only through express language of the legislator. In Coljax Laboratories Ltd (1) v. State of Goa, (1995) Goa LT 325.
It was held that the court will not favour an interpretation which has the effect of taking away the jurisdiction of the competent authority, unless the same is expressly provided for in law. XV. Presumption against the ouster of Jurisdiction If a statute purports to exclude the ordinary jurisdiction of civil courts, it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. When the language is doubtful, the courts will lean against an ouster of the jurisdiction of the ordinary courts, except in cases which are clearly and specifically indicated by the legislature. It is an accepted principle of statutory interpretation that when a right of suit is taken away and the remedy by way of application is substituted, the prohibition in regard to the filing of the suit should be read as co-extensive with the remedy that is provided.
33. PRESUMPTION-IV?
Statute affecting the crown or the state Rule of English law is that no statute binds the crown unless the crown is named therein either expressly or by necessary implication because a statute is presumed to be enacted for the subject and not for the King. Extension of the rule to all those officers of the state and their subordinate’s who perform pursuant to statutory authority. Common law rule that the crown was not bound by a statute unless named expressly or by necessary implication applied to India before the constitution came into force. (Bombay Province v. Bombay Municiapal Corporation AIR 1947 PC 34) State of W.B V. Corporation of Calcutta, AIR 1967 SC All general rules apply to citizens as well as to state unless it express or by necessary implication exempts the state from its operation. In view of Article 285 of the Constitution of the Union is exempt from taxation imposed by a state law unless the Parliament provides otherwise. Article 289 which relates to exemption of property of a State from Union taxation have no application to indirect taxes such as custom duty, central excise duty, sales tax etc. The Union is therefore liable to sales tax under a State Act. The municipal corporation cannot evades the ban of Article 285 and tax union property by levying service charges for water, electricity supplied and drainage and roads provided to posts and telegraph buildings. LDA V.M.K Gupta, AIR 1994 SC Consumer Protection Act, 1986 applies to a statutory authority and a Government or semi-Government body or a local authority in the same way as it applied to private bodies for the act does not expressly or impliedly indicate that these bodies are excluded from the purview of the Act. Article 285 of the Constitution provides that property of the Union is exempt from taxation imposed by a state law unless the Parliament provides otherwise.
X
Presumption that statutes are not intended to be inconsistent with international law Every enactment is to be so interpreted as not to be inconsistent with the well established rules of international law, except when a contrary intention is expressed ‘clearly’. Legislature is presumed not to enact anything contrary to international law or the common law of the realm. Unless, therefore, the intention to do so is clearly expressed in the enactment, the courts would be inclined to favour an interpretation which would bring the enactment into consonance with those principles rather accept a grammatical interpretation A very important observation in this respect was made by Khanna J. in the landmark case of Kesavananda Bharati v State of Keral “It is only in cases of doubt or ambiguity that the courts would interpret a statute so as not to make it inconsistent with the comity of nations or established rules of international law.” In Maxwell’s ‘Interpretation of Statutes’, it has been observed“But if a statute is clearly inconsistent with international law or the comity of nations, it must be so construed, whatever the effect of such a construction may be. There is, for instance, no doubt that a right conferred on an individual by a treaty made with the crown may be taken from him by the act of legislature.”
ADM, Jabalpur v. Shivakant Shukla AIR 1976 SC. Justice Khanna authoritatively laid down that: “Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the court should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the international law or treaty obligation.” Regard to International Agreements or conventions and international law Regard was given to art. 11 of the International Covenant on Civil and Political Rights which provided that no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation and this Article greatly influenced the court in giving a limited meaning to S. 51 and O 21,r 37 of the CPC. In Nilabati Behra v. State of Orissa AIR 1993 SC Art.9(5) of the International Convention on Civil and Political Rights was considered. Article 9(5) said that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compression’. This article was referred to in support of the view that damages could be allowed under art 32 and 226 of the Constitution for violation of the Fundamental Right enshrined in Art. 21. XI
Presumption of Territorial Nexus The general principle of interpretation is that the legislature is dealing with subject matter situated within its own territorial jurisdiction. A state has jurisdiction over subjects.
Acts of the legislature of a country are intended to apply to matters within the territory of that country. Also, the law made by such a legislature must bear a real territorial connection with the subject matter with which it is dealing Article 245(2) of the Indian Constitution provides that no law made by Parliament shall be deemed to be invalid on the ground that it has extraterritorial operation but under Article 245(1) a state legislature has no extraterritorial power and can legislate only for the territory of the state. Section 4 of the Indian Penal Code, 1860 applies any offence committed by: a. any citizen of India in any place without and beyond India; b. Any person on any ship or aircraft registered in India wherever it may be. The power of a country allows it to legislate for its own subjects all over the world, and for foreigners within its jurisdiction, but no further. a Operation as to foreigners: Regard to principles of international law in that respect Presumption that a statute is not intended to apply to person outside the territories of the state enacting it and presumption that the legislature intends to respect the rule of International law. XIX. Presumption against retrospective legislation It is a cardinal presumption that statute is prima facie has prospective operation unless language of the statute makes them retrospective, either expressly or by necessary implication. Presumption against retrospective legislation is stronger in the case of penal statutes than in civil statutes. In civil statutes court may even introduce a retrospective effect in civil matters if there seems to be enough justification. Acc. to Supreme Court: “All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectively if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect must be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the court has to decide whether in the light of the surrounding circumstance retrospective effect should be given to it or not” 34. PUNCTUATION XI.Punctuation England
No punctuation in the manuscript copy of any Act which received the Royal assent, the court cannot have any regard to punctuation for construing the older Acts. In Ashwini Kumar Ghose v. Arabinda Bose, AIR 1952 SC J. B.K Mukherjea observed “Punctuation is after all a minor element in the construction of a statute, and very little attention is paid to it by English Courts.
When statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to punctuationI need not deny that punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text.” In Mohd. Shabbir v. State of Maharashtra, AIR 1973 SC 1425 Sec. 27 of the Drugs and Cosmetics Act, 1940 came up for construction. Section provides whoever ‘manufactures for sale, sells, stocks or exhibits for sale or distributes’ a drug without a licence, is liable for punishment. Question arouse before the court that whether mere stocking is an offence? Held: Mere stocking is not an offence within the section but stocking for sale could amount to offence because of the absence of comma after ‘stock’. Supreme court pointed out the presence of comma after ‘manufactures for sale’ and ‘sells’ and absence of any comma after ‘stocks’ indicates that mere stocking is not an offence within the section. It was, therefore held that only stocking for sale could amount to offence and not mere stocking. While marks of punctuation contained in a statute will not generally be wholly ignored by the court in interpreting a statutory provision, it may not always be safe to rely on punctuation as a deciding factor. 35. READING UP, IN AND DOWN Judicial approach as to applying techniques of Reading Down and Reading Up in interpretation of laws and constitutional amendments I
II
Reading Down: Where general language in a statute which is literally apt to extend beyond the power of the enacting legislature will be construed more narrowly so as to keep within the permissible scope of power. Where there are two interpretations, one wide and unconstitutional bounds, the court will read down the overflowing expressions to make them valid. The technique involves choice of valid but limited meaning as against invalid but overbroad meaning. This rule is based on constitutionality of legislation and tries to balance between legislative autonomy and constitutionalism. Reading down is not redrafting, but it is narrowing the reach of the statute for a constitutional survival. In R.M.D.C, While dealing with the constitutionality of the Prize Competition Act, meaning of its definition was restricted to competitions of gambling nature by applying the reading down rule, to save its constitutionality. Reading Up It is a process of adding a term or a procedural safeguard of inclusion of some persons or group into a class from which they were omitted by legislation, in order to elevate the impugned legislation for confirming to the constitution.
Judicial addition of procedural safeguard like requirement of recording the reasons for handcuffing in Sunil Batra case read up the statute, which was otherwise infirm, to meet the standards of just and fair. In PUCL (Telephone tapping) case, reasonable procedure of law under Act additional procedural safeguard provided to safeguard the constitutionality of Section 5(2) of Indian Telegraph Act. Analysis of right to privacy in telephone conversations and of its rootedness in Art. 19(1)(a) and Art. 21 was made by the court by extensively referring to the Indian and American decisional law. Support was also gathered from International Convention on Civil and Political Rights. Finding no rules being made by the Central Government, Kuldip Singh J. for the Court observed, “It is entirely for the Centre Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguard.” While section 5(2) judicial activism was necessitated because of legislative and executive inaction, which impinged the fundamental rights. The court laid down as many as 9 directionsi Requirement of exercise of power only by high and reasonable officers, ii Scrutiny of the order by a Review committee consisting of top level officers within a week, consideration of alternative method of getting information’s, accuracy of addresses of persons subjected to telephone tapping, iii Limiting the duration of tapping to two months, maintenance of record of tapping and their destruction were insisted by these direction. These are based on paramount constitutional values, framed with a sense of balance and with proper method. They are pragmatic in outlook, temporary in character and not doubting the authority of Centre to make rules. It is for this reason that high quantum of reading up gets vindicated in the case. In Gita Hariharan case, inclusion of mother in the phrase ‘natural guardian’ even during the lifetime of father could bring section 6(a) of Hindu Minority and Guardianship Act within the parameters of Arts. 14 and 15. Reading up involves filling the interstices of legislation by using the relevant constitutional value, spirit of the legislation, international conventions, and recommendations of Law Commission, Press Commission and such other bodies. Reading up is essentially reading the existing legislation along with the constitution instead of judge’s personal view; it is the voice of the Constitution that enhances the statute of legislation towards validity. Reading up set afoot in Canada after the commencement of the Constitutional Charter of Rights and Freedoms 1982. Thus reading p has shown potentiality for judicial activism in the context of Charter issues. III
Reading in Reading in of constitutional values, especially preamble, Directive Principles of State Policy, inter-relationships of fundamental rights is done and extrapolation of legislative spirit is made. Govid v. State of MP Interaction of Art. 14, 19 and 21 and reading in of Part IV values synthesized this development.
Reading Down and Reading up of Constitutional Amendment Substantive review of Constitutional Amendments through basic structure theory and its corollary principles is an innovation of par excellence by the Indian Judiciary. Once the higher judiciary sits to decide validity of constitutional amendments in the light of basic feature or values of the Constitution, the opportunity to read down or read up the constitutional amendments with a value based interpretation emerges. Keshwanada Bharthi case while upholding the Twenty fourth Constitutional Amendments which altered Art. 368 to the effect that parliament has power to amend any provision of the constitution by following the procedure laid there in, the majority of the Apext Court ruled that such power did not include power to alter basic structure to the constitution. The court reasoning employed by implication, the rule of reading down. Court read down in order to uphold basic features of the constitution. Minerva Mills case it was suggested that wider scope given to Art. 31C by 42 nd Amendment may be upheld, but its ambit may be read down by applying basic structure scruity pon legislations which are said to enforce Directive Principles and allow only those which do not destroy the basic structure. Apex court declined to hold so, and observed, “The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of Constitutional law, no constitutional amendments have ever been read down to mean exact opposite of what it says and intends”. The court annulled the amendment to Art. 31C and restored the post Keshwavanda position of Art. 31C and restored the post Keshavanada position of Art. 31C in this task the court exhibited the same boldness which it had displayed in Keshavandada in reading down the scope of amendment power. Judicial innovated techniques of reading down and reading up have become key tools in operating the basic structure doctrine and in infusing paramount constitutional values into the amendments. Writing the legal norms anew to fill the legal vcuum
Vishaka v. State of Rajasthan is another case of filling the vacuum in existing legislation through judicial process. Facts about sexual harassment, including rape of women in work place formed the cause of this case. Preventive measures to avoid sexual harassment were conspicuously absent. According to the Court, “the need is to find an effective alternative mechanism to fulfill this felt and urgent social need”. The Court proceeded to analyze the inter-dependence between Art. 19(1)(g) and 21 and supportive character of rule of law under Art. 14 was read into Art. 21. In this particular case extensive reference was made to international conventions and provisions of CEDAW, Fundamental duty of respect for women was also looked into. On the above basis guidelines and norms against sexual harassment in workplace were laid down for due observance in all workplaces and institutions until a legislation is enacted for the purpose.
Concluding observation By and large, Indian judicial activism came as a big boon for human right values and social welfare causes. While reading down helps in balancing between legislative choice and constitutionalism, Reading up enables infusion of constitutional values and safeguards into the legal norms. Both avoids judicial confrontation with legislature and substantial and at times, reasonably modify the legislative policy. One striking feature of reading down or reading up cases is that judiciary immensely makes use of information process by referring to various commission reports and extensively relies an international human rights norms to deal with policy arguments. This has moulded the methodology of reading techniques 36. RULE OF HARMONIOUS CONSTRUCTION The basic of the principle of harmonious construction is that the legislature never intends to contradict itself by providing two repugnant provisions in the statute. The rule of harmonious construction says that “When two or more provisions of the same statute are repugnant, the court tries to construe these provisions in such a manner, if possible, as to give effect to both by harmonizing them with each other”. Sometimes, the Court will deal separately situation or by holding that one provision merely provides for an exception of the general rule contained therein. While applying the rule, the court should ensure that it should be consonance with the intention of rule makers. The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to reconcile the same. Apparently conflicting statutory provisions should be harmoniously construed for avoiding interpretation which may render any one of them ineffective. The principle should be followed in avoiding a head on class where there appears to be inconsistency in two sections of the same act. To harmonies is not to destroy the statute. A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe more general one as to exclude the more specific. Apart from resolving conflict between two provisions in the act, the principle can also be used for resolving a conflict between two provisions in the act and rule made under the act. Text of the entire Act and context of the case must be looked into while interpreting any expression used in such statute. Court must also look to the object which the statute wants to achieve. The provisions of a statute should be so read as to harmonize with one another and not to defeat those of another unless it is impossible to reconcile them. Case law Reference Sri Venkataramana Devaru V. State of Mysore, AIR 1958 SC 255
Whether right of religious denomination to manage its own affairs in matters of religion guaranteed under Article 26 (b) is subject to and can be controlled by a law protected by Article 25 (2) (b) throwing open Hindu public temple to all classes and sections of Hindus Held: Principle of harmonious construction should be applied in the present case, the Supreme Court observed that the conflict between the two provisions could be removed if it is held that Article 26(b) was subject to Article 25(2)(b)as argued by the respondent. This is effect will mean that a denominational temple is guaranteed by Article 26(b) during certain ceremonies and on special occasions, it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded. This would clearly be a denominational right. Then, the question is whether if this right is recognized, what is left to the public of their right under Art. 25(2)(b) is substantial.
Sirsilk Ltd v. Govt. of Andhra Pradesh, AIR 1964 SC 160. Conflict between two equally mandatory provisions, viz section 17(1) and Sec. 18(1) of the Industrial Dispute Act, 1947 Sec. 17 of the Act requires the government to publish every award of a Labour Tribunal within the thirty days of its receipt and by sub-section (2) of section 17 the award on its publication become final. Sec. 18(1) of the Act provides that a settlement between employer and workmen shall be binding on the parties to the agreement. Where a settlement was arrived at after receipt of the award of a Labour Tribunal by the Government but before its publication. Question was whether the government was still required by Sec. 17(1) to publish the award. Held: While constructing these two equally mandatory provisions, Supreme Court held that the only way to resolve the conflict was to hold that by the settlement which becomes effective from the date of signing the industrial dispute comes to an end and the award becomes infructuous and the government cannot publish it. Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044. The legislative assembly of W. Bengal passed the Oriental Gas Company Act in 1960. The respondent sought to take over the management of the Oriental Gas Company under this Act. The appellant challenged the validity of the act by holding that the State Legislative Assembly had no power to pass such an Act under Entries 24 and 25 of the State List because the Parliament had already enacted the Industries (Development and Regulation) Act, 1951 under Entry 52 of the Central List dealing with Industries. Entry 24 of the State List cover entire industries in the state. Entry 25 of the State List is limited to only the Gas Industry. Therefore, Entry 24 covers all industries except gas industry which is specifically covered by Entry 25. Corresponding to Entry 24 in the state list is Entry 52 in the Union List. Held: Harmonious construction suggests that Gas industry is exclusively covered under Entry 25 of the State List over which the State has full control. The state is, therefore, fully competent to make laws in this field.
Legislature of a State has the exclusive power to make law in respect of gas industry by virtue of entry 25 of List II, and that entry 24 does not comprehend gas industry. The expression "industry" in entry 52 of List I bears the same meaning as that in entry 24 of List II, with the result that the said expression in entry 52 of List I also does not take in a gas industry. If so, it follows that the Central Act, in so far as it purported to deal with the gas industry, is beyond the legislative competence of Parliament. Commissioner of Sale Tax, Madhya Pradesh, Indor v. Radha Krishna AIR 1979 SC In spite of repeated demand notices by the Sale Tax Officer, the acessee firm did not pay the tax Criminal prosecution of the respondent partner was sanctioned by the commissioner under Sec. 46(1)(d) of M P General Sale Tax Act 1958. The respondent challenged the validity of the provision on the ground that there were two separate provisions, Section 22(4-A) and 46(1)(C) under the Act. Under which different procedure were prescribed to realize the amount due but there was no provision of law which could tell as to which procedure was to be followed in which case. Held: Supreme held that a reading of the two provisions reveals that out of two the procedure prescribed under Sec. 46(1)© was more drastic. A harmonious interpretation of the two provision that there was a judicial discretion with the commissioner to decide as to which procedure was to be followed in which the case. If the commissioner failed to act judicially while choosing the procedure the court had a right to intervene.
MSM Sharma v. Krishna sinha AIR 1950 SC Supreme Court applied harmonious construction to resolve the conflict between Article 19(1)(a) and 194(3) of the constitution and it was held that the right of freedom of speech guaranteed under Art. 19(1)(a) is to be read as subject to power, privileges and immunities of a House provided under Art. 194(3). Case law references: 1. Ishwari Khatan Sugar Mills v. State of UP, AIR 1980 SC. 2. Raj Krishna v. Binod AIR 1954 SC
37. MEANING OF STATUTES Construction and interpretation Interpretation is the method by which true sense or the meaning of the word is understood. The proper construction of a statute is a question of law. Acc. to Gray ‘the process by which a judge (or indeed any person, lawyer or layman, who has occasion to search for the meaning of a statute) constructs from the words of a statute books, a meaning which he either believes to be that of the legislature, or which he proposes to attribute to it, is called interpretation.
Acc. to Salmond describes interpretation or construction as the process by which courts seeks to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed. Acc. to Francis Bennion’s Interpretation ‘In interpreting an Act of Parliament it is not, in general, a true line of construction to decide according to the strict letter of the Act but the courts will rather consider what is its fair meaning and well expound it differently from the letter in order to preserve the intent. Function of the court is only to expound and not to legislate in accordance with the settled rule of construction. Interpretation distinguished from construction Acc. to Cooley, interpretation differs from construction in that the former is the art of finding out the true sense of any form of words; construction on the other hand, is the drawing of conclusions respecting subjects that are beyond the direct expression of the text; conclusions which are in the spirit, though not within the letter of the law. Construction is to determine from its know elements its true meaning or interest of its framers and the people who have adopted it, and drawing conclusions beyond direct expression used in the text Construction of a statute is an effort to draw conclusions which are in the spirit though not within the letter of the law. The distinction is erroneous. By passage of time and in view of the case law evolved, the distinction has been largely relegated to the realm of academic discussion. Object of Interpretation I.
II.
The primary object in interpreting a statute is always to discover the intention of the legislature. Essence of law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlines it. Kinds of interpretation Grammatical Grammatical interpretation is arrived at by reference to the laws of speech to the words used in the statute/ it regards only the verbal expression of the legislature by taking into account other circumstances permissible according to the rules settled in this behalf. Logical interpretation Logical interpretation gives effect to the intention of the legislature by taking into account other circumstances permissible according to the rules settled in this behalf. Logical interpretation calls for the comparison of the statute with other statutes and with the whole system of law, and for the consideration of the time and circumstances in which the statute was passed. Special rules for interpretation of constitutions Constitution’s link with community and its emergence from the collective consciousness of the community. It is a mechanism under which laws are to be made. It is an instrument intended for ensuring peace, order and good governance.
It is a living and organic thing and “is intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.
[Mischief Rule of Construction: mere repetition] 38. STATUTE AFFECTING JURISDICTION OF COURT A Exclusion must be explicitly expressed or clearly implied The provisions excluding jurisdiction of civil courts and provisions conferring jurisdiction on authorities other than civil courts are strictly construed. There is a strong presumption that civil courts have jurisdiction to decide all questions of civil nature and exclusion of jurisdiction of civil courts is not to be readily inferred and such exclusion must either be explicitly expressed or clearly implied. The rule that the exclusion of jurisdiction of civil courts is not to be readily inferred is based on the theory that civil courts are courts of general jurisdiction and the people have a right, unless expressly or impliedly debarred to insist for free access to the courts of general jurisdiction of the state. Principles as to jurisdiction of courts not limited to civil courts alone, but applies to all courts of general jurisdiction including criminal courts. Dhulabhai v. State of M.P, AIR 1968 SC Madhya Bharat Sales Tax Act, 1950, Sec. 17 provides that assessment made shall not be called in question in any court. Held: Ultra vires Supreme Court laid down the following propositions: i Where the statute gives a finality to the orders of the special tribunals the civil court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. However, does not exclude those cases where the provisions of the particular act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure. ii Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. iii Challenge to the provisions of the particular act as ultra vires cannot be brought before tribunals constituted under the act. iv Where the particular act contains no machinery for refund of tax collected in excess of constitutionality limits or illegally collected, a suit lies. In Mafatlal Industries Ltd. V. Union of India, AIR 1996 SC A nine judge bench of Supreme Court while dealing with refund provisions in he Central Exercise and Salt Act, 1944 and Customs Act, 1962 can be said to have laid down by majority the following general propositions: A claim for refund of tax on the ground that it has been collected by misinterpretation the provision of taxing act has to be prepared under the authorities constituted under the Act and no suit is maintainable in civil court.
Where refund is claimed on the ground that provision of the act under which it was levied is unconstitutional, claim can be made by suit/write
B
Construction of exclusionary clauses Article 356 of the Constitution provides that if the president ‘is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution’ the President may proclaim presidential rule. The Article before the Constitution 44th Amendment Act further provided that the satisfaction of the President ‘shall be final and conclusive and shall not be questioned in any court of law’. Interpreting this provision the Supreme Court held that if the satisfaction of the President is based on wholly extraneous grounds which have no nexus with action taken, the proclamation can be challenged in a court of law. Proclamation issued by him is open to judicial review on the ground of mala fide exercise of power; that it was based on wholly irrelevant or extraneous grounds; that there was no material in support thereof. (SR. Bommai v. Union of India, AIR 1994 SC). Rameshwar Prasad v. Union of Inida, AIR 2006 SC. Dissolution of the Assembly was ordered even before its first meeting on the ground that attempt were being made to cobble a majority by illegal means to form the Government’s report. Exclusion of Jurisdiction of superior courts The jurisdiction conferred by the constitution can be taken away only by amending the constitution and not by statutory enactment. Art. 262(2) of the constitution which enables parliament to provide by law that ‘neither the supreme court nor any other court shall exercise jurisdiction in respect of any dispute relating to waters of inter-state Water Disputes Act, 1956 which provides for constitution of water dispute for adjudication of such dispute and section 11 of which bars the jurisdiction of all courts including the supreme court in terms of Art. 262(2). Finality of to the decision of an authority is not construed as completely excluding judicial review under Art. 136, 226 and 227 of the constitution. Statutes affecting ‘Judicial Review’ Judicial review has been held to be a part of the basic structure of the Indian Constitution. In India some of the statute excludes the judicial review concept through incorporation of the word ‘Statutory Finality’. Supreme Court on statute affecting judicial review Kihota Hollohan v. Zachilhu, AIR 1993 SC. Owing to large scale defections in the Indian legislature, lawmakers introduced Anti-Defection Law vide the Constitution (Fifty Second Amendment) Act, 1985. Paragraph 7 of Schedule 10 provides “Notwithstanding anything contained in the constitution, no court has any jurisdiction in respect of any matter connected with the disqualification of a member of a House on ground of defection” Court observed that if the power of judicial review is weakened, then it would adversely affect the system of justice whereby tribunals and other quasijudicial bodies could violate rules at will.
C
D
The purpose of finality clause was clarified to prevent any further appeal but its effect on the power of judicial review remains unfettered. State of Rajasthan v. Union of India, AIR 1977 SC Article 356(5) provides that order passed by the President under Art. 356 complete immunity from judicial scrutiny. Held: Reviewable by the Courts if it was based on irrelevant considerations, ulterior motives or was mala fide. N. P Ponnuswami v. The Returning officer, AIR 1951 No election shall be called in question except by an election petition’’ in Article 329 (b), and the point to be decided is whether questioning the action of the Returning Officer in rejecting a nomination paper can be challenged only after the culmination of election process. HM Trivedi v. VVB Raju, AIR 1973 SC It was held that entry of a person’s name in the electoral roll of a constituency prepared under the Representation of the People Act, 1951, could neither be challenged before the civil court nor before an election tribunal on the ground that the person concerned was not ordinary resident in that constituency. It was held that the authorities under the Act could conclusively decide the question of ordinary residence. Union of India v. Jyoti Prakash Mitter AIR 1971 1093 SC. The question of jurisdiction of Higher Courts were raised again in this case. When the finality of the President’s decision with regard to question of age of a judge arose. Article 217(3) specified that the President’s order shall be final with regard to the determination of age of a judge of a High Court and excluded it from the purview of judicial review. The Supreme Court discussed the effect of the President’s decision on the independence of Judiciary and observed that “Notwithstanding the declared finality of the order of the President the court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rule of natural justice were not observed, or that the president’s judgment was coloured by the advice or representation made by the executive or it was founded on no evidence. In Khemani Engineering Corporation v. General Manager, N.F Railway, AIR 2006 SC The act in contention was Section 10 of the Public Premises (Eviction of Unauthorized Occupations) Act, 1971 which conferred finality to the decision of the Additional District Judge who had dismissed the appeals. The High Court relied on L. Chandra Kumar’s Case (AIR 1997 SC 1125) and held that “the powers vested upon in the High Court rightly pointed out that there is a difference between a court of appeal and a court of writ and held that even if a statute does not provide a right of appeal and declares certain orders to be final, the remedy of approaching this High Court in exercise of the power of judicial review under Article 226 of the Constitution would not be barred. Under Article 74 and Article 163 advice tendered by the Council of Ministers to the President/Governor cannot be questioned in a Courts of Law. In spite of constitutional finality attached to the statute, the court have interpreted the ouster of judicial review against the plain reading of the words to protect the
legitimacy of the institution of democracy and to prevent abuse of position and authority by Government and President.
39. STATUTE MUST BE READ AS A WHOLE
To ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each words, phrases, or sentence is to be considered in the light of the general purpose and object of the Act itself. Statute is to be read and interpreted within the four corners of the Act to avoid any contradiction between one part of a statute and another. Intention of the legislature must be found by reading the statute as a whole. In order to ascertain the meaning of a clause in a statute, court must look at the whole statue. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184 Supreme Court while holding that the Dowry Prohibition Act, 1961 prohibits not only actual receiving of dowry but also the very demand for dowry made even before the marriage, observed that the text and context of the entire Act must be looked into while interpreting any of the Act expressions used in a statute. The Court must look to the object which the state seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. In Ram Narain v. State of Uttar Pradesh, AIR 1957 SC 532 The appellant’s circumstances and property were taxed under S. 14(1)(f) of the U.P.Town Area Act. Challenging the imposition he argued that even though he was carrying on business in the town area, he was not living in it and therefore, could not be taxed. Held: Supreme Court rejecting this contention, held that while interpreting a particular enactment of a statute, it is essential to keep the whole scheme of the statute in mind, and so interpreting it becomes clear that residence within the town area is not an essential condition for imposition of tax on circumstances and property because circumstances means one’s status and financial position which includes income from trade. Attar Singh v. Inder Kumar AIR 1967 SC 773 The Punjab Rent Restriction Act 1949 provided by S. 13 (a)(ii) that a landlord could obtain possession in the case of rented land if (a) he requires it for his own use; (b) he is not occupying in the urban area concerned for the purpose of his business any other such rented land, and (c) he has not vacated such rented land without sufficient cause after the commencement this Act, in the urban area concerned."
The High Court of Punjab held that the words ‘for his own use’ in cl (a) permitted the landlord to claim eviction for his own used. Whatever may be the nature of the use. Supreme Court reserved the High Court’s decision and applied the principle that statute should be read as a whole. Words ‘for his own used have been used in a restricted sense and would mean that his own used could be only of or business purposes as was clear clause (a) is read together with clauses (b) and (c).
Dr. Sanjeevayya v. Election Tribunal, AIR 1967 SC 773 The election of the appellant to the State Legislative Assembly was challenged by a petitioner who prayed that he be declared elected in place of the appellant. During the pendency of this petition, the appellant got elected to the Rajya Sabha and so resigned from the Assembly. In interpreting S. 150 of the Representation People Act 1951 which requires that on the happening of a causal vacancy ‘the Election Commission shall, by a notification in the official Gazette call upon the Assembly constituency to elect a person for the purpose of filling the vacancy’. The Supreme Court pointed out that the section cannot be read in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. It was held that on a reading of all those provision together the duty of the Election Commission to hold a bye-election on resignation of a member imposed by S. 150 need not be discharged forthwith if the election of that member has been called in question by an election petition in which the petitioner has also claimed a relief that he should be deemed to be duly elected and that election commission can await the final adjudication of the election petition for if the petitioner succeeds in getting the declaration that he has been duly elected, there would be no necessity of holding any bye-election Alamghir v. State of Bihar, AIR 1956 SC 46 Appellant was charged with having committed an offence under section 498 of the Indian Penal Code for detaining with him a married woman. Accused stated that since the woman had come to live with him voluntarily leaving her husband he could not have been said to have detained her. Held: Supreme Court reading the whole section as a whole in context with the entire statute and the surrounding circumstances stated that the word detention would not be taken in its dictionary sense. Sec. 498 aims at protecting the rights of a husband against anyone interfering with him by depriving him of the company of his wife. 40. 3. STATUTORY INTERPRETATION IN LIGHT OF CHANGES IN SOCIAL, POLITICAL, ECONOMIC DEVELOPMENTS AND SCIENTIFIC INVESTMENT A statute may be interpreted to include circumstances or situations which were unknown or did not exist of the enactment of the statute. Statute must be interpreted in the light of the legal system as it exists today.
Lord Bridge observed: “When a change in social conditions produces a novel situation, which was not in contemplation at the time when a statute is first enacted, there can be no a priori assumption that the enactment does not apply to the new circumstances, there is no reason why it should not apply”. When in the changed circumstances the common law fiction that by marriage the wife must be deemed to have irrevocably consented to sexual intercourse in all circumstances has been come anachronistic, the husband can be convicted of rape under the Sexual Offences (Amendment) Act, 1976, if he has sexual intercourse with his wife without her consent. (R v. R 1991) 4 All ER 481.) R v. C, (2004) All ER Change in social outlook has also resulted in the view that a man recklessly infecting a woman or his wife with HIV even during consensual intercourse, when the woman or wife did not know that the man was suffering from a disease which could be transmitted by sexual intercourse, would be guilty of inflicting grievous bodily harm under section 20 of the Offences against the Person Act, 1861. Anuj Garg v. Hotel Association of India, (2008) 4 SCC. Section 30 of the Punjab Excise Act 1914 prohibited the employment of any man under the age of 25 years or any women in any part of premises in which liquor or intoxicating drugs were consumed by the public. This law may be good having at that time, but having regard to the present social conditions and equality to sexes guaranteed under the constitution, the same was declared void. The effect of change in social attitude bring about change in interpretation. The word ‘Person’ under Sec.27 of the Representation of the People (Scotland) Act, 1868 was held in 1901 not includes women thereby disentitling them to vote. But Privy Council in 1929 overruling the said decision and held women as eligible to contest as well as right to vote. Change in social attitude towards homosexuals, two persons of the same sex cohabiting and living together for a long time with mutual degree of interdependence have been held as constituting a ‘family’. (Fitzpatrick v. Sterling Housing Association LTD., (1994) All ER.) Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) SCC Where the Supreme Court opined that a ‘broad and expansive interpretation should be given to the term wife in accordance with the spirit of the beneficial provision i.e section 125 of the Code of Criminal Procedure. In this case, the court declared that if a man and woman live together for a long time, as husband and wife, without valid marriage rites, a presumption of marriage would still be made so as not to deny the woman the benefit of maintenance. Capturing the essence of statutory interpretation in light of socio-economic changes, the court said: “ We believe that in light of the constant change in social attitude and value, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.P.C and accordingly, a broad interpretation of the same should be taken”. A Shift in social attitudes towards euthanasia can also be charted by studying the move from the Gian Kaur v. State of Punjab 1996 SCC to the Aruna Ramchadra Shanbaug v. Union of India & Ors. (2011) . In the Gian Kaur case, the court look a very strict view of Art. 21 and said that the state has a duty to
protect life, and therefore could not legitimize ending it. But the court took cognizance of growing literacy and a changing social view point towards mercy killing in the Aruna Shanbaug case. It interpreted the same Article 21 to say that it gives the right to live with human dignity. The court differed in its interpretation of the same Article done in 1996 and lay down guidelines for passive euthanasia. General words are construed to include new inventions and technological advances not known at the time when the act was passed It has been held that telephone is ‘telegraph’ within the meaning of that word in the Telegraph Acts, 1863 and 1869 although telephone was not invented in 1890. Definition of ‘telegraph’ in the Indian Telegraph Act, 1885 is wide enough to take in electric lines used for the purpose of wireless telegraph. The word ‘handwritten in section 45 of the Evidence Act, 1872 will embrace typewriting. State of Maharashtra D. Dr. Praful B. Desai, AIR 2003 SC 2053 Whether evidence in a criminal trial could be taken through video-conferencing, with reference to section 273 of the Cr.pc Held: Keeping inn view of advances in science and technology ought to be applied to it, thereby holding that evidence of a witness taken through videoconferencing would satisfy the requirements of evidence taken in the presence of the accused. Liberal construction is given so as to include within its ambit the future developments in various fields of human activity. M.C Mehta v. Union of India AIR 1987 SC In this case, the SC evolved the principle of absolute liability and differentiated it from the tortuous principle of strict liability expressed in Rylands v. Fletcher (1868) while evolving this doctrine, the court observed that: ‘This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Vineet Narain v. Union of India AIR 1998 SC Supreme Court virtually look away the power of superintendence over the CBI vested in the Central Government under section 3 of the Delhi Police Establishment Act, 1947, without holding it ultra vires, and transferred to it to the Central Vigilance Commission which was directed to be given a statutory status. Prakash Singh v. Union of India AIR 2006 SCC The task of extensive police reform was undertaken by the Supreme Court to insulate police machinery from outside interference and detailed directions were issued to that end which indirectly require repeal of the India Police Act, 1861. Seema v. Ashwani Kumar AIR 2006 SCC
The court noticed that though India was a signatory to the Convention on the Elimination of All Forms of Discrimination against Women and also ratified the convention. The court held that “in the interest of society” marriages are made compulsorily registered. Justice Bhagwati in the case of National Textile Workers' Union v. P.R. Ramakrishnan, (1983) 1 SCC 228, at page 256, need to be set out. They are: "We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind."
42. THEORETICAL INTERPRETATION
FOUNDATIONS
OF
STATUTORY
Interpretation is a rational activities giving meaning to a text, it is an intellectual activity, determining normative message that arises from the text. Plain text needs no interpretation, every text requires interpretation, and text cannot interpret without interpretation. I. Textualism The textualist approach is premised on the exclusive validity of the statutory language as the source of legislative intent. Textualists believe that statutory language is the source of judicial power and the only legitimate object of judicial concern. One of the cardinal rule applied by textualists for statutory interpretation is the ‘Plain Meaning Rule’ Where language of the provision is so clear and its meaning so plain that no difficulty attends its construction, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed in the provision are to be taken as the final expression of the legislative intent. Construction is no substitute for legislation. Inconvenience or hardships, if any, that result from following the statute as written, must be relieved by the legislature, not the judiciary, whose sole function is to enforce a statute according to its terms, as enacted by the legislature. New textualist: It will have commitments to plain meaning, context, integrity, and coherence are objectively correct in the eye of the legislature Focusing on written word but not its limited view of what the law is Judge relies on canons of statutory interpretation, as long as those canons are clear bright-line rules that courts consistently apply. Textualists do not want judges to make the law.
Law making should be left to the legislature, textualists maintain, because it is a political business, and as such, it should be left to the elected representatives of the people. The judiciary is not a democratic institution, and thus it should not be allowed to usurp the power of making law by using various liberal or creative means of statutory interpretation. Underlying motivation of textualism derives from a neo-conservative conception of the regulatory state Textualism urges judges to interpret statutes and statutory regulations as literally as possible. Judges should apply the plain literal meaning of the statute to the case at hand. Textualism seems to maintain that if the legislature is unhappy with the particular judicial result, it can always rectify the situation by legislative amendments that . The more legislators will realize that courts will not correct drafting error and thus law makers will become more vigilant and meticulous when drafting legislation. Primus agrees that textualism promises transparency as then anyone can know the law by merely reading the text. Interpreting text means understanding it according to its original meaning
II.
III.
Critics The moral obligation of the court is first and foremost to do justice to the litigants in from of them, and to the extent their rulings have the force of binding precedent, court duty is to make the law the best it can be. Textualism is bound to fail on its own terms; it is bound to be flip-flop theory, one that cannot be applied consistently across the board. Textualism is thus inherently deceptive and consequently immoral. The textualist approach is premised on the exclusive validity of the statutory language as the source of legislative intent. Textualists believe that statutory language is the source of judicial power and the only legitimate object of judicial concern. One of the cardinal rule applied by textualists for statutory interpretation is the ‘Pleain Meaning Rule’ Intentionalism When a statute gives rise to different meaning then the real intention is to be sorted out. According to William Eskridge, Philips and Frickey views that legislative intent is not only a collective intent but also a coincidence of at least two different collective intents, that of the senate and the house. Roscue Pound emphasizes that the object of genuine interpretation is to discover the rule with which the law maker intended to establish, to discover the intention with which the law maker mad the rule or the sense which he attached to the words wherein the rule is expressed. Legislatures say that an interpreter’s role is to give a statute the meaning most consistent with their intention, Interpreter should follow the intent that was actually manifested, unless it would lead to an absurd result. Dynamic Theory of Statutory Interpretation
Judiciary by giving dynamic statutory interpretation fills in the lacunae in the law which came up due to the changing circumstances. Statute should be interpreted in light of their present societal, political, and legal context/societal scenario itself, is an extremely dynamic concept. Interpreter need to analyze the meaning of a legislation in relation of contemporary needs and objectives What purpose is served by the Theory of Dynamic statutory interpretation? A rational society, as the law always presupposes, will desire that the ongoing statute shall be construed in such a manner that takes the society forward, not backwards. One cannot predict what law will be, court are attracted to dynamic statutory interpretation. When a society evolves, it starts demanding that the legal system of a nation fulfils its changing and newly developing (essential needs of people is different). One argument favour to intentionality and other one to fill gaps The well-established cardinal principle of statutory interpretation is that the ‘plain, literal and original’ meaning is to be awarded to the words in the statute. Where such interpretation results in absurdities and creates immense difficulties in law, other cannons of interpretation are to be resorted to. When a judges interpret a statute in common law, they are inclined not only to interpreted it in light of precedents and historical developments, but also in cultural, political, economic and technical advances being made in the society. This is to say that the judiciary by giving dynamic statutory interpretation-fills in the lacuna in the law which came up due to the changing circumstances, however many have criticized this rule and alleged that a misguided application of the same, largely due to judicial hyper activism can result into difficulties such as betraying the intent of the legislature behind the enactment of the concerned act or policy etc. What purpose is served by the theory of dynamic statutory interpretation? A rational society, as the law always presupposes, will desire that the ongoing statute shall be construed in such a manner that takes the society forward, not backwards Pedantic interpretation can render a statute obsolete has been expressed by eminent judges since the second half of the 19th Century. Ex: when the negotiable instrument act, 1881 came into force, notice writing was meant to be construed literally only. However with the invention of fax machines, notices corresponded through these machines were also brought under the purview of notice in writing. Such an illustration and interpretation affirms that view that “words cannot be static vehicles of ideas or concepts. This cannon of law provides interpretative guidance to the judiciary in coming up with the best possible solution to the problem at hand and the most coherent decision which the legislators could have intended. Dynamic theory presupposes that the judicial organ of country is abreast with the contemporary world by taking into account the technological, political, economic and social advancements that have been taking place.
Immanuel Kant, a famous German philosopher, went a step further and claimed that “even permanently unalterable laws should not be allowed to hold back progress” Ronald Dworkin who argued that statue should change as “law’s integrity” develops and changes. To arrive at a best decision/fair or effective justice delivery mechanism cannot be accomplished by recreating past events and fulfilling past expectations rather it is the current web of beliefs and policies surrounding the statue” the guide the judicial fraternity to arrive at the best decision in consonance with not only the original intent but also present needs. School Board v. Arline, SC USA Person with contagious diseases like tuberculosis was handicapped to receive the benefits accorded to “handicapped person” within the meaning of the Rehabilitation Act 1973. In India similar approach has been followed by the judiciary in National Taxtile Workers’ Union v. P. R Ramakrishn, AIR 1983 SC While concluding Video conferencing would meet the requirements under sec. 313 of CrPC( which mandated the physical presence of the accused), said that the aforementioned section was to be considered in the light of the revolutionary changes in technology, communication and transmission and the marked improvement. Constitution is a living document, expanded the scope of art. 21 to ensure that judicial system of India grows with the changes that the country was witnessing Problem with the dynamic theory Many academicians and opponents of Dynamic theory have contended that by resorting to this method, the judiciary has overstepped the role that was apportioned to it by the constitutional scheme, especially when it comes to India This is to say that the judiciary has encroached upon the power, authority and responsibility that was awarded to the parliament. Judicial activism and judicial overreach as the judiciary has been accused of. Or judicial hyper activism. Opponent of dynamic theory four another arguments that this theory often ignored the historical legitimacy of originalism. No finality inconsistent do arises. Isolated and unelected judiciary. Proponents of dynamic theory, two major arguments – a. Homosexual, IPC 377 unnatural. Naz Foundation v. Govt. of NCT of Delhi- Indian judiciary recognized the need of the hour and decriminalized consensual sexual acts of adult in private In USA, France enacted laws amending or repealing the laws to make same sex copulation and marriage constitutional It shows that when paradigm changes are required in a nation, which completely transform the social fabric of the country it should be judiciary which kick starts the process and legislature which completes the task. Proponent of dynamic theory, include taking the societal developments into consideration. Original theory means giving the terms an ordinary and literal interpretation.
Dynamic theory approves to assist the judiciary to deliver justice in tandem with the evolving needs of an ever-changing society; it gives unfettered power to the judiciary to fiddle with established law. Static interpretation outdated. It is the duty of the judiciary to make decisions in consonance with the changing demands in a country, but also to guide them through. 43. WEBSITE 5. Wikipedia
“Interpretation of a statute cannot remain static….If the ground realities changed, the interpretation should also change”. Wikipedia can be considered as an external aid to interpretation of statutes. Its position in the process of interpretation is akin to that of Dictionaries or Encyclopaedias – an accepted external aid to interpretation. Wikipedia describes itself as a “multilingual, web-based, free-content encyclopedia project. Wikipedia describes itself as a “multilingual, web-based, free-content encyclopaedia project”. It functions as the collaborative work of thousands of volunteers, each of whom contributes to it gratuitously. Articles can be freely edited by any person with access to the internet, without discrimination between experts and laymen. As a result, it accepts that “articles may contain misinformation, un-encyclopaedic content, or vandalism”. The Supreme Court first referred to Wikipedia in the case of Commissioner of Customs v. C-Net Communication (I) Pvt. Ltd. (2007 (11) SCALE 492) The case concerned the duty leviable on a ‘signal decoder’ – whether it was covered by the term ‘reception apparatus for television’, or was a part ‘suitable for use solely or principally with the apparatus’. The Court referred to the Dictionary of Computers and Wikipedia to glean the nature of a ‘decoder’. It came to the conclusion that a decoder was absolutely essential to the television apparatus, and hence, would fall within the ambit of the phrase ‘reception apparatus for television’. Though it did not discuss the value of Wikipedia as a source, the Court based its decision partly on it. The question of Wikipedia’s reliability was further considered in the case of Ponds India Ltd. v. Commissioner of Trade Tax. 2008(8) SCC 369 Here, the question was whether petroleum jelly or Vaseline was taxable as a ‘drug’ or ‘cosmetic’ under the U.P. Trade Tax Act, 1948. Though it had previously been assessed as a drug, the Revenue contended that it had no curative value and hence, must be considered a cosmetic. For this purpose, it relied upon Wikipedia, which stated that modern discoveries had taken a limited view of its curative properties. The Court observed that,
Wikipedia, like all other external aids to construction, like dictionaries etc, is not an authentic source, although the same may be looked at for the purpose of gathering information. Where an express statutory definition of a word exists, a Wiki definition cannot be preferred. It cannot normally be used for the purpose of interpreting a taxing statute or classification of a product vis-a-vis an entry
in statute.” (Ponds India Ltd. v. Commissioner of Trade Tax, 2008 (8) SCC 369, at ¶24.) In Cochin Cadalas (P) Ltd. v. State of Kerala, MANU/KE/0197/2008. The court relied solely on the Wikipedia definition of ‘craft paper’ to determine whether it was taxable as ‘paper’ or a ‘paper product’. In State of Kerala v. Sterling Farm Research Service (P) Ltd., 2008 (3) KLJ 375, The Court relied only on the Wikipedia meaning of ‘coir’ to evaluate its biodegradability for the purpose of classification for taxation. In all these cases, Wikipedia references formed a key part of the Court’s final decision Wikipedia, being an online encyclopedia where inputs could be made by anyone, was held to be not authentic. (Commissioner of Customs v. Acer India(P) Ltd. 2008 SCC Website Material available on official websites may also be taken into consideration as an external aid in interpretation of statutes. The Supreme Court, while considering whether public sector undertaking included Government companies also, relied upon the material available on government website regarding functioning of PSUs. (Leelabai Gajanan Pansare v. Oriental Insurance Co Ltd( 2008) 9 SCC 724). 6. Usage (Contemporanea exposition) It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed, may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation, as well as with the sense then attached to legislative expression. Contemporanea exposition i.e, the effect of usage and practice means that words of a statute will generally be understood in the sense which they bore when it was passed. Usage and practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion and in case of an ancient statute is an admissible external aid to its construction. In construing old statute it has been usual to pay great regard to the construction put upon them by the judge who lived at or soon after the time when were made, because they were best able to judge of the intention of the makers at the time. The principle of contemporanea expositio is not applicable to a modern statute. Policy It is needless for a court to scan the wisdom or policy of the statute, where the meaning of the words used admits of no ambiguity. Where doubt exists regarding the meaning of a statute, rather than to allow a miscarriage of the intention of the legislature when that intention is in fact ascertainable, it would seem proper for the court to give the general policy of the state some consideration. Nevertheless, if the legislature reveals intent to depart from existing public policy, that intent must be made effective; the court should not ignore or override it. “The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are
capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction. It is only in such cases that it become relevant to consider the mischief and defect which the act purports to remedy and correct.” 44. STRICT CONSTRUCTION OF PENAL STATUTES I.
General Principles: The principle of ‘strict construction’ has evolved from the principle that the power of punishment has always been vested in the legislature and not the court’. Acc to Halsbury’s Laws of England, clear language is a pre-requisite to create a crime. A penal statute must be construed according to its plain, natural and grammatical meaning. If the accused does not fall within the parameters of the offence described in the statute, accused cannot be held liable. Subject should not be free unless he can be found guilty according to the clear and unambiguous language of the statute. Penal statutes cannot extended by implication: no one can be brought within a statute unless the case falls within the letter and the spirit of the statutes.
Benefit to the subject in case of doubt and standards of compliance Another accepted canon of interpretation is that a penal statute should be construed strictly and that in case of doubt the benefit should go to the subject. If the section is ambiguous or susceptible of another construction, the construction more favorable to the accused should be adopted. According to Maxwell – “Penal law must be construed strictly. But it is paramount duty of judicial interpreter to put upon the language of the legislature, honestly and faithfully its plain and rational meaning and to promote its object”. If two interpretation and reasonable construction can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which impose penalty. If two possible and reasonable constructions can be put upon penal provisions, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes a penalty.
It is not competent for the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature. Where two interpretation possible Penal provisions should be so construed not to place a burden on the subject.
Prakash kumar v State of Gujarat (2005) 2 SCC 409 “Court cannot enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous” charges should come within the words and within the spirit.
Tolaram v. State of Bombay AIR 1954 SC 496 Bombay Rents, Hotel and Lodging House Bates Control Act, 1947, Section 18(1) of the provides;“If any landlord either himself or through any person acting or Purporting to act on his behalf............ receives any fine, premium or other like sum or deposit or any consideration, other than the standard rent in respect of the grant, renewal or continuance of a lease of any premises such landlord shall be punished with imprisonment of fine as laid down in the section” Held: Section envisaged the existence of a lease and the payment in respect thereof, did not prohibit the taking of money by owner of an incomplete building in consideration of binding himself by an oral agreement to grant a lease on completion of the building to the person from whom the money was taken The relationship of landlord and tenant does not come into existence till a lease comes into existence.
London and North EasterN Railway Co. v. Berriman (1946 A.C) The Railway Employment (Prevention of Accident) Act, 1900 Gave power to the board of trade to make rules ‘with the object of reducing or removing the dangers and risks incidental to railway services’ One such rule: The railway companies to provide warning of approaching train to workmen engaged in ‘relaying or repairing’ the permanent way Question was whether a railway company was guilty for not providing look-out precautions when some workmen, who were engaged in only ‘Cleaning and Oiling an apparatus between the running lines were knocked down and killed by an oncoming train. Held: He had been involved in routine maintenance and oiling at the time of the accident and was not ‘relaying or repairing’ tracks. Widow of diseased not entitled to compensation. Lord Porter said that the word ‘repair’ contains ‘some suggestion of putting right that which is wrong’
M.V Joshi v. M.U Shimpi AIR 1961 SC1494 Appendix B, Rule A 11.05 framed under the Prevention of Food Adulteration Act, 1954,
Defined ‘Butter’ to mean ‘the product prepared exclusively from the milk or cream of cow or buffalo or both’ Contention of the appellant was that butter made from curd is not covered und the rules made under the act. Held: In interpreting these rules the supreme court felt no doubt in holding that butter prepared from curd, i.e., soured milk and cream also fell within the definition, The court was bound to accept the expressed intention when the words were clear and plain Prakash Kumar v. State of Gujarat (2005) SCC409 Terrorist and Disruptive Activities (Prevention) Act, 1987 the court held that the more stringent the provision of law, the less discretion of the court. Stringent laws are made for the purpose of achieving its objectives. It is the duty of the court to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of purposive construction should be taken recourse to, to achieve the objectives II.
Modern view of Strict construction of Penal statutes The rule of strict construction of penal statutes as modified in modern times. According to Maxwell observes: The rule of strict construction in the case of penal statutes was more rigorously applied in former times, and the tendency of modern decision, upon the whole, is to narrow materially the difference between what is called a strict and beneficial construction. The rule of strict construction must yield to the paramount rule that every statute is to be expounded according to its express or manifest intention.
All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature. Penal statute should be construed to avoid a lacuna and to suppress mischief and advance remedy in the light of the rule in Hydon’s case.
M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC Sec. 5(1) (d) of the Prevention of Corruption Act, 1947 Sec. 5(1)(d) provides that “a public servant is said to commit the offence of criminal misconduct in the discharge of his duty, If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable things or pecuniary advantage” The contention – said clause did not cover the case of benefit which was not derived from a third person, but was derived by causing loss to the government by abuse of power. Held: Comprehensive language used in the clause covered such a benefit and that the wide meaning of the language could not be limited by construction as it well accorded with the spirit of the statute.
Chitan J. Vaswani v. State of West Bengal, AIR 1975 SC 2473 Sec. 18(1) of the Suppression of Immoral Traffic Act, 1956 Authorizes a magistrate to direct eviction of an “occupier of premises within a distance of two hundred yards of any public place if after notice and hearing the person concerned the magistrate is satisfied that the premises are used as a brothel or for carrying prostitution. Sub section (2) of the same section empowered a court convicting a person of any offence under section 3 or 7 to pass under Section 3 punishes person who keep brothels Section 7 punishes prostitution in premises within a distance of 200 yards of specified sensitive places. Sub section 2 is not limited to premises within two hundred yards of any public place and it enable making of an order of eviction of the nature mentioned in sub-section (1) in respect of all premises in respect of which conviction recorded under section 3 and 7.
Imp. CasesSP Choudhury v. state of Punjab
