Professional Documents
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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 Codes 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previous state of the law or to judicial decisions interpreting the repealed Acts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.
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
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
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
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
4. DELEGATED LEGISLATION-III
4
Unreasonable restriction on fundamental right (14 &19) the court can invalidate
an administrative rule.
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
5. DELEGATED LEGISLATION-IV
Procedural control
Allowing the specific audit of the rules by those for whose consumption they
are made
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
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.
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.
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.
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 lexicographers angle; in built
policy of the legislature as discernible from the object and scheme of the Act
must be given effect to.
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.
English context
The rule of Ejusdem Generis was laid down by Lord Tenderden (Know as Lord
Tenderdens 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.
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.
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.
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
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 draftsmans 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 225Representation of People Act, 1951
Section 81Patna High Court RulesRules 6 and 7Election petition
Period of limitation45 days from date of electionLast date of limitation
being 28.8.2003Word day in Section 81 begins at mid night and covers
period of 24 hours thereafterThus, petition could have been presented upto
mid night falling between 27th and 28th day of August, 2003High Court
Rules framed under Article 225Relate to procedural mattersAnd cannot
make nor curtail any substantive lawAt time of presentation, Judge may not
be sitting in open courtBut that does not mean that he cannot receive election
petitionJudge ordinarily to sit in open court upto 4.15 p.m. of day as per rules
But that time is not end of dayElection petition handed over to Election
a.
b.
c.
d.
e.
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.
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.
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
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.
5.
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
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.
Jurists 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
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.
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.
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.
II
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.
b
c
IV
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.
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.
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.
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
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.
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.
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 Blacks 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
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.
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.
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 Employees 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.)
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.
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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. Ambedkars 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.
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.
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
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
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
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 others 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 others 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 others 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 COUNTRYS LEGAL SYSTEM
Lecture at Northwestern University, Illinois (October 28, 2008) By Justice K.G. Balakrishnan, Chief
Justice of India
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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.
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 observedThe courts will presume that Parliament did not intend a statute to have
consequences which are objectionable or undesirable; or absurd; or
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 Crowns 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 thatThe 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.
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?
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.
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.
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
I.
II.
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
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 persons 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 Presidents decision with regard to question of age of a
judge arose.
Article 217(3) specified that the Presidents 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 Presidents 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
presidents 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 Kumars 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
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 appellants 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 ones 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 Courts 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).
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
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 interpreters 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
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 laws 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.
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 Courts 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 Halsburys 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.
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.
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
Hydons case.