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Subject: Interpretation of statutes Semester: seventh semester Compilation date: 22 November, 2005 to 5th December, 2005. uthor: !.

"asanth dith#a $%mail: vasanth.adith#a&'mail.com

Preface

(his is a compilation of notes and lectures on the subject titled )IN($*+*$( (I,N ,- S( (.($S/. It is a read#%to%use 'ist for la0 students and the primar# objective of this 'ist is to enable the reader to understand the in%depths of the subject and to provide e1am oriented information. (his has been a ne0 initiative from 2,,D3,*D and 0e hope that it 0ill definitel# be of some use to la0 students and to others 0ho are interested in this subject. Su''estions and additions to the compilation are 0elcomed. 3ishin' #ou all the best4

!."asanth dith#a uthor

CONTENTS

5. 2eneral principles of interpretation. 2. Internal 6. id to Interpretation. mendin', Consolidatin' and Codif#in' Statutes.

7. Interpretation of -iscal Statutes. 5. Interpretation of the Constitution. 8. 9e'al -iction. :. Statutes affectin' the cro0n of the State. ;. $1ternal id to Interpretation of Statutes. <. =eneficial Construction. 50.+resumption affectin' the jurisdiction of the Court. 55.,peration of a statute. 52.>andator# and Director# Statues. 56.Interpretation of +enal Statutes. 57.(he 2eneral Clauses ct, 5;<:% $ffect of repeal. Short notes.

CHAPTER 1 GENERAL PRINCIPLES OF INTERPRETATION Introduction

(he term interpretation means )(o 'ive meanin' to/. 2overnmental po0er has been divided into three 0in's namel# the le'islature, the e1ecutive and the judiciar#. Interpretation of statues to render justice is the primar# function of the judiciar#. It is the dut# of the Court to interpret the ct and 'ive meanin' to each 0ord of the Statute. (he most common rule of interpretation is that ever# part of the statute must be understood in a harmonious manner b# readin' and construin' ever# part of it to'ether. (he ma1im )A Verbis legis non est recedendum/ means that #ou must not var# the 0ords of the statute 0hile interpretin' it. (he object of interpretation of statutes is to determine the intention of the le'islature conve#ed e1pressl# or impliedl# in the lan'ua'e used. In Santi swarup Sarkar v pradeep kumar sarkar, the Supreme Court held that if t0o interpretations are possible of the same statute, the one 0hich validates the statute must be preferred.

?inds of Interpretation (here are 'enerall# t0o @ind of interpretationA literal interpretation and lo'ical interpretation.

9iteral interpretation 2ivin' 0ords their ordinar# and natural meanin' is @no0n as literal interpretation or litera legis. It is the dut# of the court not to modif# the lan'ua'e of the ct and if such meanin' is clear and unambi'uous, effect should be 'iven to the provisions of a statute 0hatever ma# be the conseBuence. (he idea behind such a principle is that the le'islature, bein' the supreme la0 ma@in' bod# must @no0 0hat it intends in the 0ords of the statute. 9iteral interpretation has been called the safest rule because the le'islatureCs intention can be deduced onl# from the lan'ua'e throu'h 0hich it has e1pressed itself. (he bare 0ords of the ct must be construed to 'et the meanin' of the statute and one need not probe into the intention of the le'islature. (he elementar# rule of construction is that the lan'ua'e must be construed in its 'rammatical and literal sense and hence it is termed as litera legis or litera script. (he Golden Rule is that the 0ords of a statute must prima facie be 'iven their ordinar# meanin'. (his interpretation is supreme and is called the 'olden rule of interpretation.

In Ramanjaya Singh v Baijnath Singh, the $lection tribunal set aside the election of the appellant under s 526D:E of the *epresentation of +eopleCs more ct, 5<55 on the 'rounds that the appellant had emplo#ed than prescribed for electioneerin' purpose. (he persons

appellant contended that the e1cess emplo#ees 0ere paid b# his father and hence 0ere not emplo#ed b# him. (he Supreme Court follo0ed the

'rammatical interpretation of S 526D:E and termed the e1cess emplo#ees as volunteers. In a!bool "ussain v State o# Bombay, the appellant, a citiFen of India,

on arrival at an airport did not declare that he brou'ht 'old 0ith him. 2old, found in his possession durin' search in violation of 'overnment notification, 0as confiscated under S 58: D;E Sea Customs 5<7:. (he appellant pleaded that his trial under the of ct, 5;:;. ct, Ge 0as char'ed under s ; of the -orei'n $1chan'e *e'ulation

ct 0as violative

rt 20D2E of the constitution relatin' to double jeopard# as he 0as

alread# punished for his act b# 0as of confiscation of the 'old. It 0as held b# the Supreme Court that the sea customs authorit# is not a court or a judicial tribunal and the confiscation is not a penalt#. ConseBuentl# his trial 0as valid under the ct of 5<7:. In adan mohan v $.%handrashekara, it 0as held that 0hen a statute

contains strict and strin'ent provisions, it must be literall# and strictl# construed to promote the object of the act. In Bhavnagar &niversity v 'alitana Sugar ills 'vt (td, it 0as held that

accordin' to the fundamental principles of construction the statute should be read as a 0hole, then chapter b# chapter, section b# section and then 0ord b# 0ord. In unicipal board v State transport authority, Rajasthan, an

application a'ainst the accordin' to s 87

chan'e of location of a bus stand could be ct, 5<6<. (he application

made 0ithin 60 da#s of receipt of order of re'ional transport authorit# of the >otor vehicles 0as moved after 60 da#s on the contention that statute must be read as )60 da#s from the @no0led'e of the order/

(he Supreme Court held that literal interpretation must be made and hence rejected the application as invalid. In Raghunandan Saran v )s 'eary (al workshop 'vt (td, the supreme ct 5<5; and provided

court validated 57 D 2E of the Delhi *ent Control

the benefit of eviction on account of non pa#ment of rent. (he Supreme Court adopted 'rammatical interpretation. $1ceptions to the rule of literal interpretation 2enerall# a statute must be interpreted in its 'rammatical sense but under the follo0in' circumstances it is not possible:% 9o'ical defects E ambi'uit# =E inconsistenc# CE incompleteness or lacunae DE unreasonableness 9o'ical interpretation If the 0ords of a statute 'ive rise to t0o or more construction, then the construction 0hich validates the object of the 0hile interpretin'. It is better to validate a thin' than to invalidate it or it is better the prevails than perish. (he purpose of construction is to ascertain the intention of the parliament. The m !ch ef rule (he mischief rule of interpretation ori'inated in Ge#donCs case. If there are t0o interpretations possible for the material 0ords of a statute, then for sure and true interpretation there are certain considerations in the form of Buestions. ct ct must be 'iven effect

(he follo0in' Buestions must b considered. 5. 3hat 0as the common la0 before ma@in' the ctH 2. 3hat 0as the mischief and defect for 0hich the common la0 did not provide a remed#H 6. 3hat is the remed# resolved b# the parliament to cure the disease of the common 0ealthH 7. (he true reason of the remed#. (he jud'e should al0a#s tr# to suppress the mischief and advance the remed#. (he mischief rule sa#s that the intent of the le'islature behind the enactment should be follo0ed. *ule of casus omissus 2enerall#, the court is bound to harmoniFe the various provisions of an ct passed b# the le'islature durin' interpretation so that repu'nanc# is avoided. Sometimes certain matters mi'ht have been omitted in a statute. In such cases, the# cannot be added b# construction as it amounts to ma@in' of la0s or amendin' 0hich is a function of le'islature. ne0 provision cannot be added in a statute 'ivin' it 0ord omitted from the meanin' not other0ise found therein.

lan'ua'e of the statute, but 0ithin the 'eneral scope of the statute, and omitted due to inadvertence is @no0n as Casus ,missus. In 'adma Sundara Rao v State o# *amil +adu it 0as held that the cassus omissus cannot be supplied b# the court e1cept in the case of a clear necessit# and 0hen reason for it is found 0ithin the four corners of the statute itself. *ule of ejusdem 'eneris

$jusdem 'eneris means )of the same @ind/. 2enerall# particular 0ords are 'iven their natural meanin' provided the conte1t does not reBuire other0ise. If 'eneral 0ords follo0 particular 0ords pertainin' to a class, cate'or# or 'enus then it is construed that 'eneral 0ords are limited to mean the person or thin' of the same 'eneral class, cate'or# or 'enus as those particularl# e1posed. $': if the husband as@s the 0ife to bu# bread, mil@ and ca@e and if the 0ife bu#s jam alon' 0ith them, it is not invalidated merel# because of not specif#in' it but is valid because it is of the same @ind. (he basic rule is that if the le'islature intended 'eneral 0ords to be used in unrestricted sense, then it need not have used particular 0ords at all. (his rule is not of universal application. In ,evendra Surti v State o# -ujarat, under s2 D7E of the =omba# shops and $stablishments ct, 5<7; the term commercial establishment means )an establishments 0hich carries an# trade, business or profession/. Gere the 0ord profession is associated to business or trade and hence a private doctorCs clinic cannot be included in the above definitions as under the rule of .jusdem -eneris. In -rasim Industries (td v %ollector o# %ustoms, Bombay, the rule of $jusdem 2eneris is applicable 0hen particular 0ords pertainin' to a class, cate'or# or 'enus are follo0ed b# 'eneral 0ords. In such a case the 'eneral 0ords are construed as limited to thin's of the same @ind as those specified. $ver# clause of a statute must be construed 0ith reference to other clauses of the ct.

CHAPTER " INTERNAL AI# OF INTERPRETATION IN(*,D.C(I,N Statute 'enerall# means the la0 or the ct of the le'islature authorit#. (he 'eneral rule of the interpretation is that statutes must prima facie be 'iven this ordinar# meanin'. If the 0ords are clear, free from ambi'uit# there is no need to refer to other means of interpretation. =ut if the 0ords are va'ue and ambi'uous then internal aid ma# be sou'ht for interpretation. IN($*N 9 IDS

5. Conte1t If the 0ords of a statute are ambi'uous then the conte1t must be ta@en into consideration. (he conte1t includes other provisions of

the statute, its preamble, the e1istin' state of la0 and other le'al provisions. (he intention behind the meanin' of the 0ords and the circumstances 2. (itle (itle is not part of enactment. So it cannot be le'all# used to restrict the plain meanin' of the 0ords in an enactment. 9on' title (he headin' of the statute is the lon' title and the 'eneral purpose is described in it. $.'. +revention of -ood follo0s ) n food/. In Re $erala .ducation bill, the Supreme Court held that the polic# and purpose ma# be deduced from the lon' title and the preamble. In anohar (al v State o# 'unjab, 9on' title of the ct is relied as a dulteration ct, 5<57, the lon' title reads as ct to ma@e provisions for the prevention of adulteration of under 0hich the# are framed must be considered.

'uide to decide the scope of the ct. Short (itle (he short title of the ct is purel# for reference onl#. (he short title is merel# for convenience. $.'. (he Indian +enal Code, 5;80. 6.+reamble (he ct Starts 0ith a preamble and is 'enerall# small. (he main ct are found in the +reamble of the ct in a nutshell. It is a preparator# ct is clear the preamble must be objective and purpose of the Statute. )+reamble is the the

statement. It contains the recitals sho0in' the reason for enactment of ct. If the lan'ua'e of the i'nored. (he preamble is an intrinsic aid in the interpretation of an ambi'uous act.

In $ashi 'rasad v State, the court held that even thou'h the preamble cannot be used to defeat the enactin' clauses of a statute, it can be treated as a @e# for the interpretation of the statute. 7.Geadin's 'roup of Sections are 'iven under a headin' 0hich act as their preamble. Sometimes a sin'le section mi'ht have a preamble. S.6:;% 775 of I+C is ),ffences a'ainst propert#/. Geadin's are prefi1ed to sections. (he# are treated as preambles. If there is ambi'uit# in the 0ords of a statute, headin's can be referred. In ,urga *hathera v +arain *hathera, the court held that the headin's are li@e a preamble 0hich helps as a @e# to the mind of the le'islature but do not control the substantive section of the enactment.

5. >ar'inal notes >ar'inal notes are the notes that are printed at the side of the section in an ct and it summariFes the effect of the section. (he# are not part of the statute. So the# must not be considered. =ut if there is an# ambi'uit# the# ma# be referred onl# as an internal aid to the construction. In /ilkes v -oodwin, the Court held that the side notes are not part of the ct and hence mar'inal notes cannot be referred. 8. +roviso proviso merel# carves out somethin' from the section itself. proviso is a subsidiar# to the main section and has to be construed in the li'ht of the section itself. ,rdinaril#, a proviso is intended to be part of the section and not an addendum to the main provisions. 0ords to a proviso 0ith a vie0 to enlar'e the scope. proviso should receive strict construction. (he court is not entitled to add

:. DefinitionI Interpretation clause (he le'islature can la# do0n le'al definitions of its o0n lan'ua'e, if such definitions are embodied in the statute itself, it becomes bindin' on the courts. 3hen the act itself provides a dictionar# for the 0ords used, the court must first loo@ into that dictionar# for interpretation. In ayor o# 'ortsmouth v Smith, the court observed )(he introduction of interpretation clause is a novelt#./ ;. Conjunctive and Disjunctive 0ords (he 0ord )and/ is conjunctive and the 0ord )or/ is disjunctive. (hese 0ords are often interchan'eable. (he 0ord JandC can be read as JorC and JorC can be read as JandC.

<. 2ender 3ordsC usin' the masculine 'ender is deemed to include females too. 50. +unctuation +unctuation is disre'arded in the construction of a statute. 2enerall# there 0as no punctuation in the statutes framed in $n'land before 5;7<. +unctuation cannot control, var# or modif# the plain and simple meanin' of the lan'ua'e of the statute. 55. $1planations IN certain provisions of an ct e1planations ma# be needed 0hen doubts arise as to the meanin' of the particular section. $1planations are 'iven at the end of each section and it is part and parcel of the enactment. 52. $1ceptions and savin's clause

(o e1empt certain clauses from the previe0 of the main provisions, and e1ception clause is provided. (he thin's 0hich are not e1empted fall 0ithin the purvie0 of the main enactment. (he savin' clause is also added in cases of repeal and re%enactment of a statute. 56. Schedules Schedules form part of a statute. (he# are at the end and contain minute details for 0or@in' out the provisions of the e1press enactment. (he e1pression in the schedule cannot override the provisions of the e1press enactment. Inconsistenc# bet0een schedule and the Ramchand te0tiles v sales ta0 o##icer1 ct, the ct prevails. D

57. Illustrations Illustrations in enactment provided b# the le'islature are valuable aids in the understandin' the real scope. 55. >eanin' of the 0ords (he definition of the 0ords 'iven must be construed in the popular sense. Internal aid to construction is important for interpretation.

CHAPTER $ A%EN#ING& CONSOLI#ATIONG AN# CO#IF'ING STAT(TE IN*,D.C(I,N Consolidatin' statute is a statute 0hich collects the statutor# provisions relatin' to a particular topic, and embodies them in a sin'le ct of parliament, ma@in' minor amendments and improvements. C,NS,9ID (IN2 S( (.($ (he object of a consolidatin' statute is to present entire bod# of different statutor# la0s on a particular subject in a complete form. (his is done b# repealin' all former statutes. Consolidatin' statutes are of three t#pes 5. Consolidatin' statutes 0ithout chan'es 2. Consolidatin' statutes 0ith minor chan'es. 6. Consolidatin' ct 0ith amendment.

*.9$S ,- IN($*+*$( I,N E +resumption In enactment of a consolidatin' parliament is intended to alter ct, the presumption is that the the e1istin' la0. (he further ct bear the

presumption is that the 0ords used in the consolidatin' made.

same meanin' as that of the enactment for 0hich consolidation is Go0ever, if the 0ords have ori'in in different le'islations, then the same meanin' cannot be sustained. =E INC,NSIS($NCK In case of inconsistenc# bet0een the provisions of a consolidatin' to dates of enactment in chronolo'ical order. -or the purpose of enactment of a consolidatin' etc. !ust because certain terms of a non% repealed statute are used in the consolidatin' statute, it does not mean that the non%repealed statute and 'eneral la0s are affected b# the consolidatin' statute. consolidatin' statute is not simpl# a compilation of different earlier statutes, but enacted 0ith co%ordination and for the chan'in' present social circumstances. In this conte1t a consolidatin' statute ma# also be an amendment act. $.'. rbitration and Conciliation ct, 5<<8. ct it is in order to refer to previous la0s, e1istin' la0s, judicial decisions, common la0 ct, it is pertinent to refer to different previous enactments 0ith reference

In -alloway v -alloway, it 0as ar'ued as per a 28 D5E of the matrimonial clauses le'itimate children onl#. ct, 5<50, the term )children/ is limited to

(he interpretation 0as rejected b# 9ord *adcliff and 'ave a liberal interpretation to include ille'itimate children also. C,DI-KIN2 S( (.($ codif#in' statute is a statute 0hich states e1haustivel# the 0hole of the la0 upon a particular subject. (he ma@er of la0 incorporates in the enactment both the pre%e1istin' statutor# provisions and the common la0 relatin' to the subject. (he purpose of a codif#in' statute is to present uniform, orderl# and authoritative rules on a particular subject. 3hen once the la0 has been codified, it cannot be modified 'raduall# from da# to da#, as the chan'in' circumstances of the communit#. n# modifications to it 0hether of a minor matter or a major amendment must be made b# the le'islature Dban@ o# .ngland v vagliano brothers1 9ord Gershell interprets a codif#in' statute as follo0s:% ) (he object of a codif#in' ct is to end the conflict of decisions . codif#in' statute does not e1clude reference to earlier case la0s on the subject for the purpose of true interpretation of the 0ords. (he reference of the previous le'islations is for the reason of removal of ambi'uit#. (he aim of a codif#in' statute is to declare the la0 on the subject so that the jud'e, b# true interpretation of 0ords decides the meanin' 0ithin the parameter of such la0. In Subba Rao v %ommissioner o# Income *a0 , the Supreme Court held that the Income (a1 ct, 5<22 is a self%contained code e1haustive 0ith n intention to the matters dealt 0ith therein, and its provisions sho0 preamble of the

depart from common rule la0 2!ui #acet per alium #acit per se3. (he ct states it to be an act to consolidate and amend. (herefore the court should tr# to find out the true scope of the code and matters dealt 0ith e1haustivel# therein. (o conclude, the difference bet0een a consolidatin' and codif#in' statutes are that the aim of a consolidatin' statute is to enact a

complete code on a particular subject b# not onl# compilation but also b# addition but a codif#in' statute states e1haustivel# the 0hole of the la0 upon a particular subject.

CHAPTER ) STRICT CONSTR(CTION OF TA*ING STAT(TES IN(*,D.C(I,N Statutes imposin' ta1es or monetar# burdens are to strictl# construed. (he lo'ic behind this principle is that imposition of ta1es is also a @ind of imposition of penalt# 0hich can onl# be imposed if the lan'ua'e of the statute uneBuivocall# sa#s so. n# @ind of intendment or presumption as to ta1 does not e1ist. ( L ND -$$ In case of a fee, there is a specific service rendered to the fee pa#er. D4uid pro !uo1, 0hereas for the ta1 pa#er no direct services are rendered but the service assumes the form of public e1penditure rendered to the public at lar'e. *ules of interpretation 5 Char'in' Section (he section that char'es the ta1 must have clear 0ords. =efore ta1in' an# individual it must be clearl# established that the person to be ta1ed falls 0ithin the purvie0 of the char'in' section b# clear 0ords. (here is no implication of the la0. If a person cannot be brou'ht 0ithin the four corners of the la0, he is free from ta1 liabilit#. In %alcutta 5ute anu#acturing %o. v %ommercial *a0 o##icer, the Supreme Court held that in case of interpretin' a ta1in' statute, one has to loo@ into 0hat is clearl# stated. (here is no room for searchin' the intentions, presumptions or eBuit#. In athuram Agarwal v State o# adhya 'radesh, the Supreme Court held that 0ords cannot be added or substituted to find a meanin' in a statute so as to serve the intention of the le'islature. $ver# ta1in' statute must contain three aspectsA subject of ta1, person to be ta1ed and the rate of ta1.

2. Strict and favourable construction (a1in' enactment should be strictl# construed and the ri'ht to ta1 should be clearl# established. $Buitable construction should not be ta@en into account. Courts should not strain 0ords and find unnatural meanin' to fill loopholes. If the provision can be interpreted in t0o 0a#s, then the one favorin' the assessee must be ta@en into consideration. In Saraswati Sugar mills v "aryana State Board, (he Supreme Court held that ever# ct of the parliament must be read accordin' to the strict natural construction of its 0ords. 6. Clear Intention to impose or increase ta1 (he intention to impose or increase ta1 or dut# must be clear and in unambi'uous lan'ua'e. 7. +rospective operation (he cardinal principle of ta1 la0s is that the la0 to be applied to assessee is the la0 in force in the assessment #ear unless other0ise provided e1pressl# or b# necessar# implication. No retrospective effect to fiscal statute is possible unless the lan'ua'e of the lan'ua'e of the statute is ver# clear and plain. In Reliance 5ute Industries (td v %ommercial *a0 o##icer, -iscal Statute are 'enerall# not retrospective other0ise e1pressl# provide b# necessar# implications. 5. >eanin' in common parlance. In findin' out the meanin' of a ta1in' statute, the meanin' in common usa'e, parlance special in commercial and trade circles must be considered. In Annapurna Biscuit anu#acturing %o. v %ommissioner o# Sales ta0, the Supreme Court held that statute imposin' a ta1 should be

construed in the 0a# 0hich the# are understood in ordinar# lan'ua'e in the area in area in 0hich the la0 is the force. In ,unlop India (td V &nion o# India, the Supreme Court held )late1/ comes 0ithin the meanin' of )rubber/ for the purpose of ta1. Imposition of (a1 b# authorit# of la0. (he ta1es and assessment can onl# be imposed b# an authorit# established under a statute. (he ta1 can be levied onl# b# an ct of the parliament. In Atlas %ycles Industries (td v State o# "aryana, the Supreme Court held that notification imposin' a ta1 cannot be deemed to be e1tended to ne0 areas in the municipalit#. :. >achiner# provision >achiner# it. In +ational *ag *raders v %ommissioner o# Income *a0, the Supreme Court held that a fiscal statute must be construed strictl#. ;. No presumption as to ta1 s re'ards to imposition of ta1, no presumption e1ists. It cannot be dra0n b# implication or analo'ical e1tensions. (he presumption for eBualit# and a'ainst partialit# of ta1ation e1ists. In ohammed Ali $han v %ommissioner o# /ealth *a0, it 0as held that no ta1 can be imposed b# inference, analo'# or probin' into the intention of the le'islature. <. -iscal statute to be read as a 0hole. (he entire provisions of a fiscal statute has to be read as a 0hole and not in piecemeal to find out the intent of the le'islature. provision means the procedure foe calculation and collection of ta1. (he person 0ho claims an e1emption has to establish

In -rasian Industries (imited v State o#

adhya 'radesh, the Supreme

Court held that an# e1emption notification in a fiscal statute must be read in its entiret# and not in parties to find out the meanin'. <. No spirit of la0. person is no liable to ta1 on the spirit of la0 or lo'ic or reason. 50.Substance of matter. (he ta1 authorities must consider the le'al aspect of a particular transaction for lev# of ta1. (his is called Jsubstance of the matterC. Court fee ct If the court fee is hi'h, then it affects the ri'ht of the a''rieved person to see@ remed#. In interpretin' the court fee al0a#s 'oes to the assessee. ,ouble ta0ation In interpretin' a fiscal statute, if one meanin' 'ives rise to double ta1ation and other meanin' 'ives rise to sin'le ta1ation, then the interpretation must be in favour of sin'le ta1ation. Dela#ed pa#ment of ta1. Interest is levied b# ta1 authorities on dela#ed pa#ment of ta1. If provision e1ists, such dela#ed pa#ment is valid. +enalt#% no criminal ct (he penalt# provision cannot be eBuated 0ith a criminal statute as a criminal act reBuires mens rea. In short the 'eneral rule of construction is that in case of doubt, it is decided in favour of the ta1 pa#er even if such a decision is detrimental to the 'overnment. ct, the benefit of doubt

CHAPTER + INTERPRETATION OF THE CONSTIT(TION M: $numerate the various principles applied b# the judiciar# 0hile interpretin' the constitution. Introduction (he constitution is an or'anic instrument. It is the fundamental la0. (he 'eneral rule adopted for construin' a 0ritten constitution is the same as for construin' an# other statute. (he constitution should be interpreted so as to 'ive effect to all its parts. (here are basicall# three t#pes of interpretation of the constitution.

5. Gistorical interpretation mbi'uities and uncertainties 0hile interpretin' the constitutional provisions can be clarified b# referrin' to earlier interpretative decisions. 2. Contemporar# interpretation. (he constitution must be interpreted in the li'ht of the present scenario. (he situation and circumstances prevalent toda# must be considered. Garmonious Construction. (he Supreme Court held in Re $erala .ducation Bill that in decidin' the fundamental ri'hts, the court must consider the directive principles and adopt the principle of harmonious construction so t0o possibilities are 'iven effect as much as possible b# stri@in' a balance. In 4ureshi v State o# Bihar, (he Supreme Court held that 0hile the state should implement the directive principles, it should be done in such a 0a# so as not to violate the fundamental ri'hts. In Shajahan v rs. $amala +arayana, the Supreme Court held that harmonious interpretation of the le'islation is justified if it ma@es effective use of an# other provision in the same or another enactment. In Bhatia International v Bulk *rading SA, it 0as held that if more than one interpretation is possible for a statute, then the court has to choose the interpretation 0hich depicts the intention of the le'islature. Interpretation of the preamble of the constitution. (he preamble cannot override the provisions of the constitution. In Re Berubari, the Supreme Court held that the +reamble 0as not a part of the constitution and therefore it could not be re'arded as a source of an# substantive po0er.

In $eshavananda Bharathi6s case, the Supreme Court rejected the above vie0 and held the preamble to be a part of the constitution. (he constitution must be read in the li'ht of the preamble. (he preamble could be used for the amendment po0er of the parliament under 68; but basic elements cannot be amended. (he 72nd mendment has inserted the 0ords )Secularism, Socialism and Inte'rit#/ in the preamble. 2eneral rules of interpretation of the constitution 5. If the 0ords are clear and unambi'uous, the# must be 'iven full effect. 2. (he constitution must be read as a 0hole. 6. +rinciples of Garmonious construction must be applied. 7. (he constitution must be interpreted in a broad and liberal sense. (he court has to infer the spirit of the constitution from the lan'ua'e. 8. Internal and $1ternal aids ma# be used 0hile interpretin'. :. (he Constitution prevails over other statutes. CHAPTER , LEGAL FICTION Introduction 9e'al fiction is defined as:% 5. 2. 6. le'al assumption that a thin' is true 0hich is either not true, or 0hich is probabl# false. n assumption of la0 that somethin' 0hich is false is true. state of facts e1ists 0hich has never reall# e1isted. le'al fiction is a devise b# 0hich the la0 deliberatel# departs from the truth of thin's for some reason. $.'. forei'ner 0as treated to be a *oman citiFen for the purpose of jurisdiction. 9e'al fiction is treated in the provisions of an enactment b# usin' the term )is deemed/. rt.

(he deemin' provision is for the purpose of assumin' the e1istence of fact does not reall# e1ist. In +ew India Assurance %o. (td v %omplete Insulation 'vt (td, the Supreme Court held that le'al fiction created under S.55: of the >otor "ehicles ct, 5<;;, the transfer of 6rd part# insurance is deemed to have effect from bu#er to seller. In Bengal Immunity %o (td v State o# Bihar, (he Supreme Court that the le'al fiction should not be e1tended be#ond its le'itimate limits. In 'andurang Vinayak v State o# Bombay, the Supreme Court held that for the purpose of le'al fiction, the 0ord )ordinanceC is to be read as JenactmentC. In Bombay corporation v %I* Bombay, S 76 of the Income (a1 purpose of this ct provided that under certain circumstances, an a'ent is for all the ct, deemed to be an a'ent of a non%resident person. Such a'ent is deemed to be an assessee. In Avatar Singh v State o# 'unjab, it 0as held that rules framed in contravention of the $lectricit# ct, 5<50 are separate and hence theft of electricit# is not an offence under the I+C. 9e'al fiction is an important subsidiar# rule of interpretation of Statute. It is useful in decidin' case 0here certain thin's are presumed to e1ist in fact of their non%e1istences. .

CHAPTER STAT(TES AFFECTING THE CRO.N OF THE STATE Introduction (he 'eneral $n'lish rule is that the )@in' is above the la0C and all statutes are meant for subject onl# and the cro0n is not bound b# them. (he statutes neither control the cro0n nor the ri'hts or properties of the cro0n, unless e1pressl# or b# necessit# or b# implication is named so in the statute. (his presumption e1tends not onl# to the cro0n but also to the Cro0nCs servants. (he basis of this rule is to present an efficient and effective functionin' of the ruler and his 'overnment for the 0elfare of the people. $1tent of pplication a. Soverei'n b. Soverei'nCs servants or a'ents. c. +ersonCs considered to be consimili casu.

d. ,fficers of the State 0ith ministerial status. Illustrations 0here statutes are not bindin' on the state a. 9and (ransfer ct, 5;<:. b. 9ocomotives ct, 5;85. c. +ropert# ,ccupied b# the servants of the Cro0n e1clusive for the cro0n. d. (he rule of Common 0ealth of nations reads that )the e1ecutive 2overnment of the State is not bound b# a statute unless that intention is apparent. e. (he custodian of enem# propert# bein' a Cro0n, the servant is not liable to ta1. f. (he Statutes re'ardin' limitation 0ere formerl# held not to bind the cro0n. '. It is a prero'ative of the Cro0n not to pa# tolls, rates or other burdens in respect of the properties o0ned in his name. In Rudler v 7ranks, the court held that the cro0n is not bound b# *ent *estriction cts under ,rder in to0n and Countr# +lannin' ct, 5<5:. (he Cro0n is not bound to 'et plannin' permission in its o0n interest. In %ooper v "awkins, a arm# driver drove a vehicle on the cro0nCs service at a speed e1ceedin' the limit. Ge 0as not liable for the breach of the speed limit in the absence of e1press 0ords in the statute that the ct binds the Cro0n. Illustrations of statutes that are bindin' on the cro0n Certain Statutes bins the Cro0n. $.'. Statutes for the advancement of reli'ion or learnin', the statutes for the maintenance of the poor, statutes for the suppression of 0ron' and statutes to perform the 0ill of the testator or donor. If an ct. ct is made for public 'ood, then the cro0n is bound b# such an

(he cro0n is not e1cluded from the operation of a statute even if the statute includes his prero'ative or ri'hts and if the statute e1pressl# includes the cro0n or the intention to include him is clear. In V.S Rice an oil ills v State o# ', the Supreme Court held that the

state is not bound b# a statute unless e1pressl# named therein or included b# necessar# implications, is applicable to Indian ruler also. Cases ?asthuri lal v State of .+ "id#avathi v State of *ajasthan (he applicabilit# of a statute to the cro0n 0as operative in ancient da#s 0here monarch# 0as in practice. =ut no0, in democracies this concept does not appl#.

CHAPTER / E*TERNAL AI# TO INTERPRETATION Introduction ,ther than the internal aid to interpretation 0hich are part of a statute itself there are other aids 0hich are not part of the statute. (hese are @no0n as e1ternal aid to interpretation. (he court can consider recourse outside the ct such as historical settin's, objects and reasons, bills, debates, te1t boo@s, dictionaries etc. *ecourse to e1ternal aid is justified onl# to 0ell%reco'niFed limits. $1ternal aids 5. Gistorical settin's (he surroundin' circumstances and situations 0hich led to the passin' of the ct can be considered for the purpose of construin' a statute. ,bjects and reason. (he statements and object cannot be used as an aid to construction. (he statements of object and reason are not onl# admissible as an aid to construction of a statute. ,bjects and reasons of a statute is to be loo@ed into as an e1trinsic aid to find out the le'islative intent, onl# 0hen the lan'ua'e is obscure or ambi'uous. (e1t boo@s and dictionaries.

(he use of dictionaries is limited to circumstances 0here the jud'es and Counsels use different 0ords. In such cases the court ma# ma@e use of standard authors and 0ell @no0n authoritative dictionaries. (e1t boo@s ma# also be refereed to for assistance in findin' out the true construction of a statute. International Conventions. International conventions are 'enerall# not resorted to for the purpose of interpretation, but it helps as an e1ternal aid for the purpose of resolvin' ambi'uities in the lan'ua'e. 5. 2overnment publications (he# are:% E *eports of commissioner or committee =E ,ther documents. ,nl# if the above documents are e1pressl# referred to in the statute, the# can be loo@ed at for the purpose of construction. 8. =ill ,nl# 0hen the lan'ua'e is ambi'uous, bills can be referred. :. Select Committee *eport (o ascertain the le'islative intent of a doubtful meanin' of a statute, report of le'islative committee of the proposed la0 can be referred. (he report of the Select committee can be loo@ed into from an historical an'le to find out 0hat 0as the previous la0, before and at the time of enactin' the statute. ;. Debate and proceedin's of the le'islature. speech made in the course of a debate on a bill could be referred to find out the intent of the spea@er. Speeches made in the parliament can also be referred. <. State of thin's at the time of passin' of the bill 50. Gistor# of le'islation

(he histor# of le'islation usuall# denotes the course of events 0hich 'ibe rise to enactments. (he court ma# refer historical facts if it is necessar# to understand the subject matter.

55..0temporaneous e0position In interpretin' old statutes, the construction b# the jud'es 0ho lived at the time of the enactment could be referred as <it is best to understand the intentions of the ma@ers of the statute. 52. !udicial interpretation of 0ords It is an accepted principle of la0 that if a 0ord has received clear judicial interpretation, then the 0ord is interpreted accordin' to the judicial meanin'. $.'. *ule in Ryland v 7letcher, absolute liabilit# has become a fi1ed and standin' rule. If definition is not 'iven, popular meanin' must be construed. 56. nalo'# and le'al fiction nalo'# means 'overned b# the same 'eneral principle. 57.+revious $n'lish la0 It is not le'al and correct to appl# decisions of $n'lish acts to the construction of an Indian statute.

,thers e1ternal aids include interpretation b# the e1ecutive, forei'n decisions 0hich include polic# of the le'islature and 'overnment polic#, purpose of the ct conventions and practices. Spirit and reason of la0. (he purpose of a statute is the reason of enactment, but the spirit or reason of la0 is connected 0ith the le'islative intent. cts in 'ari material

3hen a statute is ambi'uous, the intention of the le'islature ma# be 'athered from statutes relatin' to same subject. (he definitions cannot be 'enerall# imported. ,ther e1ternal aids include interpretation of later cts 0ith the help of earlier cts and 0ords and e1pressions used in different ct.

CHAPTER 0 1ENIFICIAL CONSTR(CTION Introduction =eneficial construction is also @no0n as liberal construction. It means interpretation of a statute in the 0idest possible meanin' of the lan'ua'e permitted. (he mischief in the lan'ua'e is remedied b# liberal and beneficial construction. =eneficial construction is an interpretation to secure remed# to the victim 0ho is unjustl# denied of relief. Such beneficial construction is mainl# applicable in social 0elfare and labour le'islations. =eneficial construction a. 3ider >eanin' In =eneficial construction, 0ider meanin' is 'iven instead of the usual and natural meanin' of the lan'ua'e of the statute. Such 0ider meanin' helps the victim secure relief unjustl# denied to him. In 7orsdike v %ol!uhoun, the court held that if an enactment reBuires that public houses are to be closed at certain hours on Sunda#s then it means that it does not include Christmas da#s. Gere beneficial construction is to be 'iven to e1empt Christmas from Sunda#s so that on Christmas da# public houses need not be closed. In Re "ale, the 0ords Nsoldier bein' in actual militar# service/ 0as held to include a territorial officer 0ho has received orders to join his unit/. Statutes 'rantin' po0er are sometimes broadl# interpreted. In )s .thiopian Airlines v )s S*I% *ravels 'vt (td, the Supreme court held that the object of beneficial le'islation, in case of ambi'uities, is resolved b# 'rantin' rather than den#in' the benefit.

In Steel Authority o# India v +ational &nion /ater 7ront /orkers, the rule of literal interpretation is to be 'iven a 'o b#, onl# 0hen provisions are va'ue or obscurel# 0orded. b. Suppression of mischief (he dut# of the jud'e is to ma@e construction of a statute so as to suppress the mischief and advance the remed#. In 5ohn %alder 8 'ublications1 (td v 'owell, =# Sec5 D5E of the obscene publications ct,5<5<, the court 'ave a 0ide interpretation to the term ) depravit#/ and ) corruption/ not merel# confinin' them to se1ual matters but to other matters too. c. Industrial le'islation In Industrial le'islations, the application of beneficial construction is more 0itnessed. d. !urisdictionalI procedural reBuirements +rovisions relatin' to procedural reBuirements namel# )'ivin' of notice/ often receive beneficial construction. Statute relatin' to the jurisdiction or procedure of the court has received beneficial construction. e. 2enus includes Species (he lan'ua'e of the statute is 'enerall# e1tended to ne0 thin's 0hich could not have been @no0n at the time of enactment. If the 0ith J'enusC, Jspecies/ is also included. $.'. J=ic#cles 0ere considered to be carria'es under the hi'h0a# 5;65. #. ,e minmus non curat le0 (he la0 does not concern itself 0ith trifles or ne'li'ible thin's or acts. 3hile interpretin' trivial acts are i'nored. (he objectives 0hich the le'islature is presumed not to intend must be avoided. ct, ct deals

$.'. )(o brea@ from prison/ 0ould not appl# to a prisoner 0ho bro@e out of prison 0hile it 0as on fire to save his life. =eneficial construction or liberal construction has been receivin' more attention as most of the le'islations are social 0elfare le'islations and hence rules of beneficial interpretation has become an important branch of stud#.

CHAPTER 12 PRES(%PTIONS AFFECTING 3(RIS#ICTION OF THE CO(RT

Introduction (he 'eneral presumption is that ordinar# courts of la0 namel# the civil courts, criminal courts, hi'h courts and Supreme Court have jurisdiction over people. n# statute 0hich ta@es a0a# the jurisdiction

of ordinar# courts must be rarel# resorted to, as people have the ri'ht to have free access to all the courts. !urisdiction of civil courts (he basic presumption of la0 is that all civil courts are empo0ered to decide all suits of civil nature. (he basis of this presumption is that civil and criminal court have 'eneral jurisdiction over people and the# have ri'ht to have free access to both civil and criminal court. Section < of C+C It 0as emphasiFed b# the Supreme Court that the rule prescribed b# section < of C+C is that the court shall, subject to provisions contained in the code, have jurisdiction to tr# al suits of civil nature e1ceptin' suits in 0hich their co'niFance is either e1pressl# or impliedl# barred. (he la0 further presumes that a remed# in the ordinar# civil courts must al0a#s be available to citiFens. 9e'al provisions e1cludin' jurisdiction of civil courts and conferrin' jurisdiction to tribunals must strictl# interpreted in such a 0a# that as far as possible, the jurisdiction of civil court are not ta@en a0a#. If the statute contains t0o interpretations, then the one conferrin' jurisdiction 0ill prevail. $1clusion of jurisdiction must be e1pressed or clearl# implied. Not possible to curtail jurisdiction of Gi'h Court and Supreme Court e1cept b# an amendment to the relevant provisions in the constitution. !urisdiction of other courts

(he 'eneral presumption is that a statute should not be 'iven such an interpretation as to ta@e a0a# the jurisdiction of the court unless the lan'ua'e of the statute is unambi'uous and clear. Since jurisdiction has been 'iven to court b# le'islation, it is the le'islation alone 0hich can ta@e a0a# the jurisdiction. If an# statute provides for an e1press bar of jurisdiction of a civil or other court, then the scheme of the particular adeBuate alternative remedies. If the constitutionalit# of an# provision is to be challen'ed, the 0rit of certiorari is the onl# recourse. (here is no s#mpath# for le'islative provisions 0hich oust jurisdiction of courts, because of the fact that the subjects are deprived of a remed#. If jurisdiction is conferred to a tribunal, the intention of the parliament is presumed to have jurisdiction to correct the decision of inferior tribunal. -inalit# clause >an# modern statutes contain provisions 0hich attempt to ta@e a0a# the jurisdiction of courts b# ma@in' the decision of the tribunal final or conclusive. (he remed# b# certiorari is never to be ta@en a0a# b# an# statute e1cept b# the most e1plicit and clear 0ords. (he 0ord final means 0ithout an appeal. It does not mean 0ithout recourse to the 0rit of certiorari. It ma@es the decision final on fact but not on la0. In ,hulabhai v State o# ', the Supreme court held that if a statute 'ives finalit# to the orders of a special tribunal, the jurisdiction of civil court must be held to e1cluded onl# if there is an adeBuate alternate remed# similar to 0hat civil remed# 0ould be. ct must provide

In R v

edical Appeal *ribunal, 9ord Dennin' said the 0ord JfinalC onl#

meansC 0ithout appealC and the remed# of certiorari cannot be ta@en a0a# because it is not an appeal. Creatin' ne0 and enlar'in' e1istin' jurisdiction It is presumed that a statute does not create ne0 jurisdiction or enlar'e e1istin' jurisdiction. $1press lan'ua'e is reBuired if an jurisdiction. In "eathstar properties (td, statute 'ivin' po0er to 'rant relief Jon bein' satisfiedC on certain facts, does not confer on it an# po0er to 'rant interim relief until such fact had been full# ascertained. In State o# &' v ohammed +ooh, Ina departmental enBuir# a'ainst the constable, the person holdin' the trial offered to be a 0itness and prosecuted the constable. (here 0as a 'ross violation of the principles of natural justice. (he court held that it can issue a certiorari. ct is to be so interpreted, as to create ne0 jurisdiction or enlar'e e1istin'

CHAPTER 11 RETROSPECTI4E OPERATION OF STAT(S A. Introduction:

Statutes

are

either

prospective

or

both

prospective

and

retrospective from the point of its applicabilit# i.e. the period of le'al effect of statutes. ll statutes in 'eneral have onl# prospective effect. It means applicabilit# to future transactions. =ut certain statutes have to be sometimes both prospective and retrospective. J*etrospectiveC means the statute 0ould appl# and affect past transaction also. T5o term! a6 Commencement (he term JcommencementC is used 0ith reference to an da# on 0hich the b6 *etrospective *etrospective statute contemplates the past and 'ives effect to previous transactions. (here must be 0ords in a statute sufficient to sho0 that the intention of the le'islature is to 'ive the rule or the la0 the *etrospective effect. 16 2eneral Statute $ver# statute is prima facie prospective, unless it is e1pressed or implied. If the object of the statute is to affect vested ri'hts or to impose me0 burdens or to impair e1istin' obli'ations, then there must be 0ords in the statute sufficient to sho0 the intention of the le'islature. statute can be 'iven retrospective effect, onl# if the statute so directs either e1pressl# or b# necessar# implications. It is a fundamental rule of the la0 that no statute shall be construed to have retrospective operation unless such construction appears ver# clearl# in terms of the ct, or arises b# necessar# or distinct implication. Conditions for 'ivin' retrospective effect ct, the ct comes into force. If not provided, a Central

ct comes into force on the da# it receives +residential assent.

>inute attention must be 'iven to the lan'ua'e of the statutor# provision for determinin' the scope of the retrospection as intended b# the +arliament. (he lan'ua'e used in a statute is the most important factor to be considered. C6 mendin' statute n amendment of a substantive la0 is not retrospective unless laid do0n or necessaril# implied. b# amendin' intendment. #6 Declarator# statute declarator# ct is defined as an ct to remove doubts e1istin' as to the common la0, or the meanin' or the effect of an# statute. (he usual reason for the passin' a declarator# act is to set aside 0hat +arliament has considered a judicial error, 0hether in the statement of the common la0 or the interpretation of the statute. (he presumption a'ainst retrospective operation is not applicable to the declarator# statutes. retrospective. E6 +endin' ctions In the pendin' suits or actions, the la0 is that the ri'hts of the parties are decided as per the la0 as it e1isted 0hen the action 0as commenced. If ho0ever the ct provides the retrospective operation of a statute, it 0ould be construed accordin'l# even thou'h the conseBuences are unjust and hard I+ Smith6s Vs +ational Association o# 9perative 'lasterers. S7 of the trade dispute act,5<08 enacted that J an action for tort a'ainst a trade union shall not be entertained b# an# courtC. It 0as declarator# act is an act to remove doubts e1istin' to common la0 and thus declarator# acts are usuall# held vested ri'ht cannot be ta@en a0a# ct e1cept b# e1press lan'ua'e or b# necessar#

held not to affect decisions of an action commenced before passin' of the act. F6 Doctrines of prospective overrulin' Rule in I.% -olaknath Vs State o# 'unjab (he doctrine of prospective overrulin' is a modern doctrine suitable for a fast movin' societ#. It does not affect the past but restricts its scope for the future. .nder this doctrine, the court declares 0hat the la0 is but does not 'ive retrospectivit#. It reconciles the t0o conflictin' doctrines, namel#, the Court finds la0 and that it ma@es a la0 for the future b# brin'in' about a smooth transition b# correctin' the errors in the la0 0ithout disturbin' the impact of errors on the past transactions. In other 0ords, the la0 for the future corrected and the past transaction as per the la0, thou'h invalid, are held valid. (he doctrine of prospective overrulin' can be invo@ed onl# re'ardin' constitutional matters. It can be applied onl# b# the Supreme Court. G6 De -acto cts (he acts performed b# the officers de facto 0ithin their assumed official authorit#, provided such acts are performed in the interest of the public or the third part# and not for their o0n benefits, are 'enerall# held as valid and bindin', as if the# 0ere acts of officersC de jure. H6 2eneral ct and Special ct. (he 'eneral rule is that special cts prevails over the 'eneral act in the case of inconsistenc#. Special 'eneral act cannot repeal a special act. ct, thou'h earlier in time, deals 0ith special objects and

'eneral la0 even if enacted later cannot repeal it. 7ood inspector Vs Suivert and ,holakia 'vt ltd.

If there is a 'eneral la0 and a special la0 relatin' to a particular subjects, the 'eneral la0 must be so applied as to not to affect the special provision. ,nl# if the intention to abro'ate the special la0 can be spelled out, the 'eneral la0 shall prevail. I6 Statutes dealin' 0ith merel# matters of procedure are presumed to be retrospective unless other0ise interrupted. 36 Statutes *e'ulatin' Succession Statutes enacted for re'ulatin' succession are not applicable to alread# open succession. Such la0s have onl# prospective effect. It is the same re'ardin' statutes re'ulatin' transfers and contracts. -iscal and +enal Statutes are prospective Statutes re'ulatin' appeals and finalit# of orders are also prospective.

CHAPTER 1" %AN#ATOR' AN# #IRECTOR' STAT(TES (his chapter is in the form of a lecture.

3hether an enactment is mandator# or director# depends on the scope and the object of the statute. 3here the enactment demands

the performance of certain provision 0ithout an# option or discretion it 0ill be called peremptor# or mandator#. ,n the other hand if the actin' authorit# is vested 0ith discretion, choice or jud'ment the enactment is director#. In decidin' 0hether the provision is director# or mandator#, one has to ascertain 0hether the po0er is coupled 0ith a dut# of the person to 0hom it is 'iven to e1ercise it. If so, then it is imperative. 2enerall# the intention of the le'islature is e1pressed b# mandator# and director# verbs such as Jma#C, JshallC and JmustC. Go0ever, sometimes the le'islature uses such 0ords interchan'eabl#. In such cases, the interpreter of the la0 has to consider the intention of the le'islature. If t0o interpretations are possible then the one 0hich preserves the constitutionalit# of the particular statutor# provisions should be adopted and the one 0hich renders it unconstitutional and void should be rejected. Non%compliance of mandator# provisions has penal conseBuences 0here as non%compliance of director# provisions 0ould not furnish an# cause of action or 'round of challen'e. Distinction It is one of the rules of construction that a provision is not mandator# unless non%compliance 0ith it is made penal D!a'annath v !as0ant sin'hE. >andator# provisions should be fulfilled and obe#ed e1actl#, 0hereas in case of provisions of director# enactments substantial compliance is satisfiable. (est for determinin' 0hether a provision in a statute is director# or mandator#. 9ord Campbell observed that there can be no universal applications as to 0hen a statutor# provisions be re'arded as merel# director# and 0hen mandator#.

>a10ell sa#s )that it is impossible to la# do0n an# 'eneral rule for determinin' 0hether a provision is mandator# or director#C. (he supreme court of India is stressin' time and a'ain that the Buestion 0hether a statute is mandator# or director#, is not capable of 'eneraliFation and that in each case the court should tr# and 'et at the real intention of the le'islature b# anal#Fin' the entire provisions of the enactment and the scheme underl#in' it. In other 0ords it depends on the intent of the le'islature and not upon the lan'ua'e in 0hich the intent is clothed. (he intent of the le'islature must be ascertained not onl# from the phraseolo'# of the provision, but also from its nature, desi'n and conseBuences 0hich 0ould follo0 from construin' it in one form or another. J>a#C, JshallC and JmustC. (he 0ords Jma#C, JshallC and JmustC should initiall# be deemed to have been used in their natural and ordinar# sense. >a# si'nifies permission and implies that the authorit# has been allo0ed discretion. In state of .+ v !o'endra Sin'h, the Supreme Court observed that Jthere is no doubt that the 0ord Jma#C 'enerall# does not mean JmustC or JshallC. =ut it is 0ell settled that the 0ord Jma#C is capable of meanin' JmustC or JshallC in the li'ht of conte1t. It is also clear that 0hen a discretion is conferred upon a public authorit# coupled 0ith an obli'ation, the 0ord Jma#C should be construed to mean a command D Smt. Sudir =ala *o# v 3est =en'alE. )>a#/ 0ill have compulsor# force if a reBuisite condition has to be filled. Cotton 9.! observed that J>a#/ can never mean )must/ but 0hen an# authorit# or bod# has a po0er to it b# the 0ord J>a#C it becomes its dut# to e1ercise that po0er. JShallC% in the normal sense imports command. It is 0ell settled that the use of the 0ord JshallC does not al0a#s mean that the enactment is obli'ator# or mandator#. It depends upon the conte1t in 0hich the

0ord

JshallC

occurs

and

the

other

circumstances.

.nless

an

interpretation leads to some absurd or inconvenient conseBuences or contradicts 0ith the intent of the le'islature the court shall interpret the 0ord JshallC in mandator# sense. >ust% is doubtlessl# a 0ord of command. Specific (erminolo'ies <<O of ne'ative terms are mandator#A affirmative terms are mostl# mandator# 0here 'uidin' principle for vestin' of po0ers depends on conte1t. In procedural statutes both ne'ative and affirmative are mandator#. ids to construction for determination of the character of 0ords can be used. (ime fi1ation If time fi1ation is provided to the e1ecutive, it is supposed to be permissive 0ith re'ard to the issue of time onl#. Go0ever, provisions re'ardin' time ma# be considered mandator# if the intention of the le'islature appears to impose literal compliance 0ith the reBuirement of time. Statutes re'ulatin' ta1 and election proceedin' are 'enerall# considered permissive. Go0ever the Supreme Court held in >anila mohan lal v S#ed hamed, 0henever a statute reBuires a particular act to be done in a particular manner and also la#s do0n that failure to compl# 0ill have conseBuence. It 0ould be difficult to accept the ar'ument that the failure to compl# 0ith the reBuired said reBuirement should lead to an# other conseBuence.

CHAPTER 1$ INTERPRETATION OF PENAL STAT(TES 2eneral principle (he rule that a statute enactin' an offence or imposin' a penalt# in strictl# construed is no0 onl# of limited application and it serves in the selection of one 0hen t0o or more construction are reasonabl# open. (he rule 0as ori'inall# evolved to miti'ate the ri'or of monstrous sentences for trivial offences and althou'h that necessit# has no0

almost vanished, the difference in approach made to a penal statute as a'ainst an# other statute stic@ persists. ccordin' to 9ord $sher, the settled rule of construction of penal section is that Jif there is reasonable interpretation 0hich 0ill avoid the penalt# in an# particular case 0e must adopt that construction. If there are t0o reasonable constructions can be put upon a penal provision, the court must lean to0ard that construction 0hich e1empts the subject from the penalt# rather than the one 0hich imposes penalt#. (here are t0o elements of crimeA the ctus *eus and the mens rea. In +oakes v ,ancaster Amalgamated collieries ltd, >a10ell cited that 0here to appl# 0ords literall# 0ould defeat the obvious intention of the le'islation and produce a 0holl# unreasonable result. (hen the court must do some violence to the 0ords and so achieve that obvious intention and produce a rational construction. =ut the full bench rejected the ar'ument of futilit# based on Noa@es " Dancaster amal'amated collier# ltd in tolaramCs case. ,n appeal the Supreme Court held that Jcourt is not competent to stretch the meanin' of the e1pression used b# the le'islature in order to carr# out the intention of the le'islatureC% >ahajan.! . $ven if one 0ere to disre'ard the rule of construction based on futilities the onl# reasonable 0a# of construction is provided b# ensurin' that the lan'ua'e is not stretched and rule of strict construction is not violated. In .V.5oshi v .V Shimpi, it 0as held that )it is no0 0ell settled that in the absence of clear compellin' lan'ua'e, the provision should not be 'iven a 0ider interpretation/. penal statute must be construed accordin' to its plain, natural and 'rammatical meanin'. D* v Gunt 5<;:E In decidin' the essential in'redients of the offence, substance and realit# of the lan'ua'e and not its form 0ill be important. 3hen the

intention is not clearl# indicated b# lin'uistic construction then re'ard must be 'iven to the mischief at 0hich the act is aimed. *ule of construction in penal statutes does not prevent the court from interpretin' a statute accordin' to its current meanin' and appl#in' the lan'ua'e to cover developments in science and technolo'# not @no0n at the time of passin' the statute. In R v Ireland 8:;<=1, +s#chiatric injur# caused b# silent telephone calls 0as held to amount to assault and bodil# harm under the person bet0een the bod# and ps#chiatric injur#. In appl#in' and interpretin' a penal statute, public polic# is also ta@en into consideration. In * v =ro0n, the Gouse of 9ords held that consensual sadomasochistic homose1ual encounters 0hich occasioned actual bodil# harm to the victim 0ere assaults. -ollo0in' are some of the propositions important in relation to strict construction of penal statutes. if the scope of prohibitor# 0ords cover onl# some class of persons or some 0ell defined activit#, their scope cannot be e1tended to cover more on consideration of polic# or object if the statute. +rohibitor# 0ords can be 0idel# construed onl# if indicated in the statute. ,n the other hand if after full consideration no indication is found the benefit of construction 0ill be 'iven to the subject. 6. If the prohibitor# 0ords in their o0n si'nification bear 0ider meanin' 0hich also fits in 0ith the object or polic# of the statute. >ens rea in statutor# offences. (his principle is e1pressed in the ma1im ) Actus non #acit reum nisi mens sit rea3 0hich means that the e1istence of a 'uilt# intent is an essential in'redient of a crime at common la0. ct, 5;85 in the li'ht of the current scientific appreciation of the lin@

>ens *ea is the state of mind sti'matiFed as 0ron'ful b# the criminal la0. Crimes involvin' mens rea are of t0o t#pes. a. crimes of basic intent D does not 'o be#ond ctus *eusE Crimes of specific intent Dforesi'ht of its conseBuence and has a purposive elementE. 3ords such as Jvoluntaril#C, J@no0in'l#C, dishonestl#C, Jfraudulentl#C are used to si'nif# the state of mind.P (he modern tendenc# is in favour of the vie0 that principles of construction do not var# 0ith statutes. (he juristic parlance toda# uses the e1pression that a proper construction should be made 0hether the statute is penal or fiscal. Normall# the 0ords used in the statute are to be construed in their ordinar# meanin'. Go0ever such approach al0a#s does not meet the ends of fair and a reasonable construction. $1clusive reliance on the bare dictionar# meanin' of 0ords ma# not provide proper construction. (hat is 0h# in decidin' the true scope and effect of the relevant 0ords in an# statutor# provision as observed b# Galsbur#, the 0ords should be construed in the li'ht of their conte1t rather than 0hat ma# be either their strict et#molo'ical sense or their popular meanin' apart from the conte1t. (hus one has to anal#Fe the different parts of a statute and consider 0hat effect the# ma# have on interpretation.

CHAPTER71) THE GENERAL CLA(SES ACT& 1/0-

M: $ffect of repeal . Introduction (he 'eneral rule of construction is that 0hen an# Central ct is not e1pressed to come into operation on a particular da#, then it shall come into operation on the da# it receives presidential ssent.

=. $ffect of repeal ccordin' to the 2eneral Clauses act, 5;<:, 0hen this act or re'ulation made after the commencement of this act repeals an# enactments hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not:% a. revive an#thin' not in force or e1istin' at the time at 0hich the repeal ta@es effect b. affect the previous operation of an# enactment so repealed or an#thin' dul# done or suffered there under c. affect an# ri'hts, privile'e, obli'ation or liabilit# acBuired or incurred under an# enactment so repealed d. effect an# penalt#, forfeiture or punishment incurred in respect of an# offence committed a'ainst an# enactment so repealed e. affect ant investi'ation, le'al proceedin's or remed# in respect of an# such ri'ht, privile'e, obli'ation liabilit#, penalt#, forfeiture, or punishment as foresaidA and such investi'ation, le'al proceedin', or remed# ma# be instituted, continued or punishment ma# be imposed as if the repealin' ct or re'ulation had not been passed. 8. *epeal of an act ma@in' te1tual amendment in act or re'ulation 3here an# Central ct or re'ulation made after the commencement of this ct repeals an# enactment b# 0hich the te1t of an# central act or re'ulation 0as amended b# the e1press omission, insertion or substitution of an# matter, then unless a different intention appears the repeal shall not affect the continuance of an# such amendment. *evival of repealed enactments

In an# central acts or re'ulation made after the commencement of this act, it shall be necessar#, for the purpose of revivin', either 0holl# or partiall# repealed, e1pressl# to state the purpose

CHAPTER71) THE GENERAL CLA(SES ACT& 1/0M: $ffect of repeal =. Introduction (he 'eneral rule of construction is that 0hen an# Central ct is not e1pressed to come into operation on a particular da#, then it shall come into operation on the da# it receives presidential ssent. =. $ffect of repeal ccordin' to the 2eneral Clauses act, 5;<:, 0hen this act or re'ulation made after the commencement of this act

repeals an# enactments hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not:% f. revive an#thin' not in force or e1istin' at the time at 0hich the repeal ta@es effect '. affect the previous operation of an# enactment so repealed or an#thin' dul# done or suffered there under h. affect an# ri'hts, privile'e, obli'ation or liabilit# acBuired or incurred under an# enactment so repealed i. effect an# penalt#, forfeiture or punishment incurred in respect of an# offence committed a'ainst an# enactment so repealed ffect an investi'ation, le'al proceedin's or remed# in respect of an# such ri'ht, privile'e, obli'ation liabilit#, penalt#, forfeiture, or punishment as foresaidA and such investi'ation, le'al proceedin', or remed# ma# be instituted, continued or punishment ma# be imposed as if the repealin' ct or re'ulation had not been passed. 8. *epeal of an act ma@in' te1tual amendment in act or re'ulation 3here an# Central ct or re'ulation made after the commencement of this ct repeals an# enactment b# 0hich the te1t of an# central act or re'ulation 0as amended b# the e1press omission, insertion or substitution of an# matter, then unless a different intention appears the repeal shall not affect the continuance of an# such amendment. *evival of repealed enactments In an# central acts or re'ulation made after the commencement of this act, it shall be necessar#, for the purpose of revivin', either 0holl# or partiall# repealed, e1pressl# to state the purpose

CHAPTER 1+ Short Notes 5. =K$ 9 3S 2. C,DI-KIN2 S( (.($ 6. C,NS(*.C(I,N ,-3,*D IN =,N > + *($> * " G.9>$ 7. D$-INI(I,N C9 .S$ *estrictive $1tensive mbi'uous .nambi'uous Contrar# conte1t definition 7. 5. 8. :. ;. DIC(I,N *I$S $M.I( =9$ C,NS(*.C(I,N 9 CG$S% 0illful dela# in ascertainin' ones o0n ri'hts >,* 9I(K *$2.9 (I,N

Qread Constitutional Doctrines