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CHAPTER 1 

Introduction   
CHAPTER 1
INTRODUCTION

1 Scope of Research
2 Object of Research
3 Significance of Research
4 Hypothesis
5 Design, Research Method
6 Meaning of Interpretation and Construction
6.1 Interpretation
6.2 Construction
6.3 Mimansa
6.4 Meaning of Statute
6.5 Meaning of Judge
7 Object of Interpretation
8 Ambiguity
9 Application of various modes of interpretation

INTRODUCTION:

The judiciary is one of the principal organs of a democratic society.


Judge has to play very sensitive role in a democracy. The tasks imposed
upon him are bridging the gap between law and society, and protecting
constitution and democracy.

All courts perform a dual function; they resolve disputes and they
regulate the future. A court’s decision purports to justify the result in the
controversy before it and to guide the behaviour of the others – whether

 
private individuals, corporate officers or public officials – whom
someday may wish to avoid similar controversy.1

The law would less often be reshaped in adjudication by the


interpretation of prior law if the law employed in resolving the dispute
was clear to the public and the explanation given in the judicial opinion
kept in clear. But such clarity would require the law to be static. For
example, a court could not take changing social circumstances into
account in reaching its holding without engaging in interpretation that
might entail reshaping the law if the law were clear static, a day in court
would be important only in sorting out factual matters; what happened,
when, to whom and so on.2

It is obvious that in contemporary India such a steady state of


affairs is impossible. In our system the law is much too complex to be
very clear even to specialists, and almost surely must remain so. The law
must also change overtime. The one way that it changes is through the
process of interpretation. The judiciary cannot cling to age-old notions of
any underlying philosophy behind interpretation. It has to move with the
times.

The rules of interpretation may well rank as an important branch of


what is called the adjective law. The part that these rules play in the
administration of justice is by no means less important than the rules of
procedure and rules of evidence. Primarily the courts have to deal with
three things: (1) Laws dealing with rights and liabilities, (2) Facts which
establish such rights and liabilities in particular cases and (3) the
machinery of administering the law and of ascertaining the facts.

                                                            
1
Harry H. Wellington: Interpreting the Constitution – First Indian Reprint 2005, p. 3
2
Harry H. Wellington: Interpreting the Constitution, Ibid, p. 5

 
The main duty of the court is, to deal with the substantive law, with
which they are supplied by the State, and with the facts, with which the
parties proposed to supply that. To assist them in respect of the greater
duty, there is the law of evidence. To assist them as regards the former
duty, there are the rules of interpretation. Thus, the rules of interpretation
stand side-by-side with the rules of evidence. Yet, the rules of
interpretation have scarcely received that degree of attention as to the
rules of evidence.3 One of the reasons is a conception that the judges
know to interpret the law without any hard and fast rules to guide them.

No doubt, as a matter of fact, a well trained judge hits upon the


proper interpretation of a passage of law, without thinking of any rules of
interpretation, which may exist on a subject. Similarly, a man with
common sense argues rightly without any knowledge of logic. No one,
however, will say that logic is uncalled for, because many men reason
rightly, without any consciousness of logic. No more can it be said that
rules of interpretation are unnecessary, because good Judges interpret law
properly, without thinking of any rules on the subject.4

In cases where a dispute arises concerning the meaning of a


statutory provision, it falls to the courts to render authoritative
pronouncements as to the meaning of the words in question. An analysis
of the workloads of higher courts in India indicate that they spent
significant amount of their time in hearing cases that involve questions
about the proper meaning of statutory provisions. Since so much time is
wasted in interpreting statutory language, it would be advisable to
develop a well defined and well understood uniform process of
interpretation.
                                                            
3
K.L.Sarkar’s Mimansa Rules of Interpretation – Tagore Law Lectures 1905– Third
Edition, p.33
4
K.L.Sarkar’s Mimansa Rules of Interpretation, Ibid, p. 33.

 
This research work is intended to focus on the various principles of
interpretation which are being adopted by the Courts as well as the
mimansa rules of interpretation during the process of administering the
justice to the people. It also includes the case studies as well as analytical
study of the principles of interpretation of the statutes.

1 SCOPE OF RESEARCH:

The scope of research includes the study of three basic rules of


interpretation which are based on common law legal system. The origin
of these principles and its effectiveness in deciding cases relating to
various forms of legislations like Constitution, Penal, Fiscal etc. The
research may also include the effectiveness of mimansa rules of
interpretation which were being utilized in ancient India under the Hindu
philosophy. All the principles of interpretation of statutes will be
analytically studied.

2 OBJECT OF RESEARCH:

Judicial decisions affect a great many people including parties to


the litigation because the law often becomes what Judges say it is. The
decisions of the Supreme Court, for example, are famously important.
The Supreme Court has power to Over Rule even the most deliberate and
popular decisions of other Departments of the Government if it believes
that they are contrary to the Constitution and it therefore has the last word
on whether and how the States may execute murderers or prohibits
certain things etc.

In a trivial sense Judges unquestionably “make new Law” every


time they decide an important case. They announce a Rule or Principle or
Qualification or Elaboration that has never been officially declared
before.

 
Earlier the most popular opinion was that Judges should always, in
every decision, follow the Law rather than try to improve upon it. They
may not like the Law they find but they must enforce it. According to this
procure opinion, some Judges do not accept that vice constraint; covertly
or even nakedly, they bend the Law to their own purposes or politics or
thinking. They are labeled as bad Judges, the usurpers and destroyers of
the democracy. Of course, some people take the contrary view that
Judges should try to improve the Law whenever they can.

It is said that the Judges who enforce the Law as it is with no care
for the misery or injustice or inefficiency that follows are termed as
Mechanical Judges. Whereas the Judges who try to improve and to do
Justice by bending Law are termed as Progressive Judges.

Sometimes, the Judge has no option but to exercise a discretion to


make new Law by filling gaps, where a Law is silent and making it more
precise, where it is vague.

The exercise carried out by the Judges for interpreting provisions


of a given Statute is a process of interpretation of a particular Statute. On
analysis of the various judgments of the Supreme Court as well as various
High Courts of India and the judgments of the Foreign Countries it
appears that the different rules of interpretation of Statute have been
made use of in a different situations and the context before the Court.
There are no straight jacket rules applied by the Courts. It seems that
there is some need of deliberation for developing a well defined and well
understood uniform process of interpretation. With this object this
research work is being undertaken.

 
3 SIGNIFICANCE OF RESEARCH:

There seems to be general suspicion or fear that Courts that adopt a


purpose finding approach to interpretation are prone to over step the
bounds of legitimate law making and that individual judges may be
tempted to refine the meaning of statutes to accord their own view of
acceptable social purposes or objections.

At the same time statutory interpretation can never be wholly


objective and courts cannot avoid some degree of law making in their role
as participants in the process of refining and applying statutory policies.

It is aimed through this research to suggest some sort of solution or


to provide well defined and well understandable uniform principles of
interpretation which may include mimansa rules of interpretation with
that of principles of interpretations based on common law legal system.

4 HYPOTHESIS:

The main principles of interpretation of statues which are being


adopted by the Courts i.e. literal meaning rule, golden rule and mischief
rules are being made applicable in a given situation differently by
different Judges. There is no uniformity in application of these principles.
Sometimes literal meaning rules have been discarded though it is
perfectly applicable in a given situation. Whereas sometimes without any
valid reasons Courts have denied to apply golden rules or mischief rules
in a given situation and has adhered to the literal meaning rules. On
analysis of various Judgments of the various High Courts and the
Supreme Court of India and that of Foreign Courts it appears that there is
no well defined and well developed uniform process of interpretation.

 
During this research work various aspects relating to the process of
interpretation will be tested.

5 DESIGN, RESEARCH METHOD:

The doctrinal method of research will be adopted in this research


work. Various cases from the International level as well as decisions of
the various High Courts and Supreme Court of India and other Journals
dealing with the principles of interpretation of statutes will be analytically
studied. It would also be conducted with an informal, explorative and
evaluative in nature.

6 MEANING OF INTERPRETATION AND


CONSTRUCTION:

6.1 INTERPRETATION:
Interpretation is a familiar feature of law and legal practices.
Interpretation is an important aspect of the practice of law. Interpretation
has very important role in justice administration in the sense that it helps
the legal system “understand” the law.

Interpretation knows no disciplinary boundaries. From philosophy


to psychology, anthropology to natural sciences, interpretation plays a
central role in the explanation of human action. Interpretation makes
understanding possible of the subject.

The word “interpretation” itself is by no means free from


ambiguity. It may be used in its widest sense to indicate the creative
activities of Judges, in so far as they may, in the exercise of their
functions, extend, restrict or modify the operation of a rule of law which
is expressed in statutory form and when so employed it is usually referred
to as “extensive” interpretation. In its narrower sense the word means the

 
explanation by the Judges of the meaning of the words or phrases
contained in a statute.

Interpretation is the art of finding out the true sense of any form or
words; i.e. the sense which their author intended to convey, and of
enabling other to drive from them the same idea which the author
intended to convey. Interpretation only takes place if the text conveys
some meaning or other.5

By interpretation is meant the process by which the Courts seek to


ascertain the meaning of the legislature through the medium of the
authoritative forms in which it is expressed.6 The process by which a
Judge or indeed any person, lawyer or layman, who has occasion to
search for the meaning of a statute, constructs from the words of a statute
book a meaning which he either believes to be that of the legislature, or
which he proposes to attribute to it, is called interpretation.7 Interpretation
is the process by which the courts determine the meaning of a statutory
provision for the purpose of applying it to the situation before them.8

“Interpretation”, is often spoken of as if it were nothing but the


search and the discovery of meaning which, however obscure and latent,
had none the less a real and ascertainable pre-existence in the legislator’s
mind.9 The process is, indeed, that at times, but it is often something
more. The fact is that the difficulties of so-called interpretation arise
when the legislature has had no meaning at all; when the question which
is raised on the statute never occurred to it; when what the judges have to
do is, not to determine what the legislature did mean on a point which
                                                            
5
Swarup Jagdish: Legislation and Interpretation – p. 16
6
Salmond: Jurisprudence 12th Edition – p. 133
7
Gray: The Nature and the Sources of Law IInd Edition – p. 176.
8
Cross Statutory Interpretation, 2nd Edition, p. 30
9
Benjamin N. Cardozo, The Nature of the Judicial Process, 5th Indian Reprint 2004,
p. 14

 
was present to its mind, but to guess what it would have intended on a
point not present to its mind, if the point had been present.10

Interpretation is the topic of the application of law. It is a process


of search, comparison and little more.11 The process of interpretation may
be found as not discovery but creation.

It is said to be either ‘legal’ which rests on the same authority as


the law itself, or ‘doctrinal’, which rests upon its intrinsic reasonableness.
Legal interpretation’ may be either ‘authentic’, when it is expressly
provided by the legislator’, [as in what are called the ‘interpretation
clauses’ in a modern Act of Parliament] or ‘usual’ when it is derived from
unwritten practice. ‘Doctrinal interpretation’ may turn on the meaning of
words and sentences, when it is called ‘grammatical’, or on the intention
of the legislator, when it is described as ‘logical’.

When logical interpretation stretches the words of a statute to cover


its obvious meaning it is called ‘extensive’, when on the other hand, it
avoids giving full meaning to the words, in order not to go beyond the
intention of the legislator; it is called ‘restrictive’.12

Except where there is ‘authentic interpretation’ by the same


authority that enacts a law, the continental codes (French) contemplate
that the judge shall have full liberty of interpretation, but only for the case
in hand. No one else is bound by his interpretation and he himself need
not follow it another time. Until there is authentic interpretation, the point
remains open for other cases.13

                                                            
10
Gray: Nature and Sources of Law, as referred to by Benjamin N. Cardozo in The
Nature of the Judicial Process, Ibid, p. 15
11
Benjamin N. Cardozo, Ibid, p. 20
12
Holland on Jurisprudence, Thirteenth Edi., Indian Economy Reprint, 2011, p. 425
13
Roscoe Pound – Jurisprudence, Vol.III , pp. 424-425

 
Interpretation is also an agency of growth of the traditional element
of law in that it is one of the points of contact between law and morals.14
A point of contact between law and morals is to be found in
interpretation. As an agency of growth, interpretation has to do with the
imperative element of a system of law.

According to Anglo-American thought, interpretation means


finding the content of a written (i.e. enacted) rule.

Common law theory of interpretation is one of the fixing the


content of precepts definitely formulated by enactment for definite
special situations.15

The law applicable to the facts of a dispute may be contained in an


Act of Parliament, and knowing the law then involves interpreting a
legislative text.16 Frequently the process of finding the law involves
choice from among competing texts or selection from competing
analogies urged by the respective parties as the grounds of decision. Here,
as one might put it, there is to be an inductive selection, or, the process
may involve selection by logical development of authoritative principles
or conceptions. Then there is, one might say, a deductive selection.17

Interpretation has been thought of as including the process of


finding or making rules for new cases, or reshaping them for unusual
cases, which has just been considered. This is called “interpretation” by a
dogmatic fiction because n the analytical theory of the last century the
law was complete and all cases were at least covered by the logical

                                                            
14
Roscoe Pound – Jurisprudence Ibid, p. 467-468
15
Roscoe Pound: Jurisprudence, Vol. I, 1959 Edition, p. 166
16
Dias – jurisprudence, 5th Edition, 1994, p. 166
17
Roscoe Pound: Jurisprudence ,Vol.III, p. 473

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implications of pre-existing rules or the logical content of legal
principles.18

Interpretation on one side runs into application and so the judicial


function runs into the legislative function at this point. On the other side,
interpretation runs into application and so the judicial function runs into
the administrative.19

The major function of the judiciary is of adjudication of claims and


counter claims of the litigants. In doing so sometimes where the law
applicable to the factual aspects of the case is such that there is a
provision in it which is capable of two meanings. In order to clarify this
situation the important functions of the Courts in administering justice
comes into play Viz. interpretation of statute. Interpretation, it is well
known, is not so simple as giving a meaning to the text of the statute;
which is in harmony with the intention of the legislature. Meaning and
intentions of the legislature are highly complicated concepts. The
interpretation involves a choice among several alternative results that can
be reached in references to the case on hand, not only on the basis of the
text but also by filling gaps to effectuate the presumed intention of the
legislature, by integrating the statutory prescriptions with the general
body of the law.20 The duty of the Courts is to ascertain and give effect to
the will of Parliament, as expressed in its enactment. In the performance
of such duty, the Judges do not act as computers into which are fed the
statute and the rules of the interpretation of statutes and from whom
issues forth the mathematically correct answers. The interpretation of

                                                            
18
Roscoe Pound – Jurisprudence, Vol.II, 1959 Edi., p. 240
19
Roscoe Pound – Jurisprudence, Vol. IV, Application and Enforcement of Law, 1959
Edi., p.7
20
Murty, B.S. “Prescriptions of Social Policy”, Vol-25 [2] JILI-1983- p.174.

11 

 
statute is a craft as much as a science and the judge as craftsman select
and apply the appropriate rules as the tools of their trade.21

In an analysis of the judicial process we may set off, first,


ascertainment of the facts upon which the determination must proceed.
Next, the facts having been found, judicial decision according to law
involves – (1) finding the legal precept to be applied, (2) interpreting the
precept, (3) applying the precept to the cause.22

Interpretation is a concept having several meanings and a variety of


applications. One may have to interpret facts; one may have to interpret
non-verbal communications; and, finally, one may have to interpret
verbal communications usually those reduced to writing. In this process,
language, logic and law intermingle with one and another.23

Interpretation is the act of finding out the true sense of any form of
words, that is, the sense which the author intended to convey, and of
enabling others to derive from them the same idea which the author
intended to convey. In the legal jargon the words Judicial Interpretation
and Statutory Interpretations are being used. Judicial Interpretation means
an interpretation of law by judiciary whereas in Statutory Interpretation
there is determination of the meaning of the legislation. It only text place
if the text conveys some meaning or other.

The process of judicial interpretation is only necessary in case of


enacted law and it is not called for in respect of customary or case law.
Courts resort to interpretation when they endeavour to ascertain the
meaning of a word found in a statute which , when considered in the light
of other words in the statute, may reveal any meaning different from that
                                                            
21
Jagdish Swaroop: Legislature & Interpretation, 1989 Edition, p. 197
22
Roscoe Pound: Jurisprudence, Vol.III, 1959 Edition, p. 469
23
P. M. Bakshi: Legal Interpretations (Ancient and Modern), 1993 Edition, p. 3

12 

 
apparent when the word is considered abstractly, or when given its usual
meaning. Words in any language are not scientific symbols having any
one precise or definite meaning, and language is but an imperfect medium
to convey one’s thought, much less of a large assembly consisting of
persons of various shades of opinion. It is impossible even for the most
imaginative legislature to forestall exhaustively situations and
circumstances that may emerge after enacting a statute where its
application may be called for. The problem of interpretation is a problem
of meaning of words and their effectiveness as medium of expression to
communicate a particular thought. A word is used to refer to some object
as situation in the real world and this object or situation has been assigned
a technical name referred.24 Each word is but a symbol which may stand
for one or a large number of objects.25

The principles of interpretation was not enunciated only for


interpretation of law but it was enunciated for interpreting any piece of
literature and it meant that when you have to give meaning to anything in
writing then you must understand the real meaning by understanding in
which it was stated and the problems or the situations which were
intended to be by what was said and it is only when you take into
consideration all background and the problems which have to be tackled
then you could really understand, the real meaning of the words. This
exactly is the principle which deserves to be considered.26

Interpretation becomes more than the ascertainment of the meaning


and intent of law makers whose collective will has been declared.27

                                                            
24
Jusice G.P. Singh: Principles of Statutory Interpretation, 5th Edition, p. 3
25
Dy. Chief Controller of Imports & Exports v. Kosalram, A.I.R. 1971 S.C., pp.
1283, 1289.
26
U.P. Bhoodan Yagra Samiti v. Brij Kishor: [1989] 4 S.C.C., p. 281
27
Benjamin N. Cardozo, Ibid, p. 17

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6.2 CONSTRUCTION:-
The Court has to harmonise the letter and spirit of an enactment.
The idea is to get at the ‘intent of the legislature’. But this expression is
ambiguous. It may connote either the meaning or the purpose of
legislation. And the two methods are known respectively by
“interpretation” and “construction”. In practice, one cannot be separated
from the other, because it is difficult to see where ‘interpretation’ leave
off and ‘construction’ begins.

However, Interpretation may be defined as the act of finding out


the true sense of any form of words, that is, the sense which their author
intended to convey, and of enabling other to derive from them the same
idea which the author intended to convey. Whereas, Construction may be
termed as the drawing of conclusions respecting subject that lie beyond
the direct expressions of the text, from elements known from and given in
the text, conclusions which are in the spirit, though not in the letter of the
text. Interpretation only takes place if the text conveys some meaning or
other. But construction is resorted to when, in comparing two different
writings on the same individual or two different enactments by the same
legislative body, there is found contradiction where there was evidently
no intention of such contradiction in one or another, or where it happens
that part of a writing or declaration contradicts the rest. When this is the
case and the nature of the document or declaration, or whatever else it
may be, is such as not to allow as to consider the whole as being
invalidated by a partial or other contradiction, their resort must be had to
construction; so too, if found to act in cases which have not been foreseen
by the framers of those rules, by which we are nevertheless obliged for
some binding reasons, faithfully to regulate as well as we can our action
respecting the unforeseen case.

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Construction is the drawing of conclusions respecting subjects that
lie beyond the direct expressions of the text, from elements known from
and given in the text, conclusions which are in the spirit, though not in the
letter of the text. Construction is resorted to when, in comparing two
different writings of the same individual, or two different enactments by
the legislative body, there is found contradiction where there was
evidently no intention of such contradiction in one or another, or where it
happens that part of a writing or declaration contradicts the rest. When
there is the case in the nature of the document or declaration, or whatever
also it may be, is such as not to allow as to consider the whole as being
invalidated by a partial or other contradiction, then resort must be had to
construction; so too, if found to act in cases which have not been foreseen
by the framers of those rules, by which we are nevertheless obliged for
some binding reasons, faithfully to regulate as well as we can our action
respecting the unforeseen case.

6.3 MIMANSA:
The Mimansa – the rules of interpretation of the sacred scriptures
of ancient Hindu Law is one of forensic source of law. The various rules
of mimansa has been systematically developed in most scientific manner.

The substantive law was described as Dharma and the procedural


law was called the vyavahara. In this sense of the word the legal disputes
were too called vyavahara (vi=various, ava=doubts, hara=removing]
[Harita)

Party (Raga), greed (Lobha), fear (Bhaya), illwill or malice


(Dwesha)

The ancient rules of interpretation were very scientific. They


recognized the science of reasoning and also the principles of Justice,

15 

 
Equity and Good Conscience. Dharma or the Justice, and Yukti or the
Equity and the reason were the foundations of justice or “No decision
should be made merely exclusively according to the letter of shastra, for
in a decision devoid of Yukti, failure of justice occurred. (Brihaspati
II.12, Artha.III.II.51.55) Nyaya always referred Equity and Reason and in
case of difference between different smritis first Manu Smriti was to be
followed otherwise that Smriti which agreed with principles of Nyaya
(Equity and good conscience) was to be followed. [Yajnavalkya II.21,
Gautama XXVII.48, Manu.XII.108]

The Mimansa principles of interpretation were first laid down by


Jaimini in his sutras, about 500 B.C. That they are very ancient is proved
by the fact that they are referred to in many Smritis, which themselves are
very old. Thus, the Apastamba sutras copiously refer to Jaimini’s
principles. Since Jaimini’s sutras are in very terse and concise form it
became necessary to explain them. Many commentaries were written on
them e.g. of Upavarsha, Shabar, etc. but all these are lost except the
Shabarbhashya. Shabar’s work was in turn commented on by Kumarila
Bhatta, Prabhakar, etc. These in turn were commented upon by
Parthasarthy Mishra, Shalignath, etc. It is not necessary to go into detail
into such commentaries etc. but it may be pointed out that there are scores
of books on the topic (all in Sanskrit) e.g. the commentaries of Sree Bhatt
Shankar, Apadeva, Laugakshi Bhaskar, etc. and our interpreters have
gone much deeper into the topic than Maxwell. While the Westerners
have been doing interpretation only for about 200 years (Maxwell’s book

16 

 
was written in the middle of the 19th Century) we have been doing
interpretation for 2500 years or so.28

The Mimansa principles of interpretation were created for religious


purposes, that is, to enable correct performance of the Yagya. However,
since these principles were extremely rational and logical they began to
be subsequently used in other branches of Sanskrit literature e.g. in
philosophy, law, grammar, etc., that is to say, they became of universal
application.29

In Sardar Mohd. Ansar Khan v. State of U.P.,30 the controversy


was that if two clerks in an intermediate college in U.P. were appointed
on the same day who would be senior? Whoever was senior had the right
to be promoted as head clerk. Now on this point the law was silent. There
was nothing in the U.P. Intermediate Education Act or the Regulations
made thereunder which says anything about this. However, Chapter II,
Regulation III of the Regulations says that if two teachers are appointed
on the same day the senior in age will be senior. Justice Katju used the
atidesh principle of Mimansa, which means going from the known to the
unknown, and held that the same principle which applies for teachers
should also be applied to clerks, and hence the senior in age would be
senior.

In Udai Shankar Singh v. Branch Manager,31 the facts were that


the petitioner was going on a scooter and met with an accident with a
truck. As a result, his right leg had to be amputated, and his right hand
was totally paralyzed. He had taken an LIC policy, and he claimed
                                                            
28
Justice M. Katju, Judge, Allahabad High Court, “The Mimansa Principles of
Interpretation-I”, K. L. Sarkar’s Mimansa Rules of Interpretation, Third Edi.,
2011, p.6
29
Justice M. Katju, Ibid p.7
30
1995 Lab IC 1217 (All)
31
1998 (2) ALL CJ 1364

17 

 
compensation. The LIC policy mentioned that compensation was payable
on death or permanent disability. Permanent disability was defined in the
policy as (a) loss of both the eyes, or (b) amputation of both legs, or (c)
amputation of both the hands, or (d) amputation of one hand and one leg.
The LIC rejected the claim, saying that the right hand was only paralyzed,
and not amputated. It was observed that now, if we follow the literal rule
of interpretation the LIC was correct. However, Hon’ble Justice Katju
allowed the petition holding that here the literal rule has not to be
followed, and instead the linga or lakshana principle has to be followed as
after all, paralysis of the hand was as bad as amputation of the hand,
because both lead to loss of the use of the hand.

In Mahabir Prasad Dwivedi v. State of U.P.,32 the facts were


relating to provisos given under Section 7-A of the U.P. Town Areas Act.
Section 7-A of the U.P. Town Areas Act provided that the District
Magistrate could remove the Chairman of the Town Area for certain
misconducts. These were two provisos to Section 7-A. The first proviso
said that before removing the Chairman the District Magistrate had to
give him an opportunity of hearing. The second proviso said: “Provided
secondly that no order for removal shall take effect unless it has been
confirmed by the State Government”. The question was whether the State
Government also has to give an opportunity of hearing. At first glance it
seemed that it was not necessary for the State Government to give an
opportunity of hearing before confirming the order of the District
Magistrate. There was no such requirement expressly mentioned in the
second proviso. Moreover, the second proviso was in close proximity to
the first proviso where this requirement was expressly mentioned, and
hence it was urged by the respondents that the Legislature never intended

                                                            
32
AIR 1992 ALL 351

18 

 
that the State Government must give opportunity of hearing, otherwise it
would expressly have mentioned it in the second proviso (as it had in the
first). However, using the anushanga principle which states that an
expression occurring in one clause is often also meant for a neighboring
clause, and it is only for economy that it is not mentioned in the letter,
Hon’ble Justice Katju held that the State Government must also give
opportunity of hearing.

It is deeply regrettable that in our Courts of Law, lawyers quote


Maxwell and Craies but nobody refers to the Mimansa Principles of
Interpretation. Few people in our country are aware about the great
intellectual achievements of our ancestors and the intellectual treasury
they have bequeathed us. The Mimansa Principles of Interpretation is part
of that intellectual treasury, but it is distressing to note that apart from a
reference to these principles in the judgment of Sir John Edge, the then
Chief Justice of Allahabad High Court, in Beni Prasad v. Hardai Devi,33
it may be mentioned that the Mimansa Rules of Interpretation were our
traditional principles of interpretation laid down by Jaimini in the 5th
Century B.C. whose Sutras were explained by Shabar, Kumarila Bhatta,
Prabhakar, etc. The Mimansa Rules of Interpretation were used in our
country for at least 2500 years, whereas Maxwell’s First Edition was
published only in 1875. These Mimansa Principles are very rational and
logical and they were regularly used by our great jurists like
Vijnaneshwara (author of Mitakshara), Jimutvahana (author of
Dayabhaga), Nanda Pandit, etc. whenever they found any conflict
between the various Smritis or any ambiguity or incongruity therein.
There is no reason why we cannot use these principles on appropriate
occasions even today. However, it is a matter of deep regret that these
                                                            
33
(1892) ILR 14 All 67 (FB)

19 

 
principles have rarely been used in our law Courts. It is nowhere
mentioned in our Constitution or any other law that only Maxwell’s
Principles of Interpretation can be used by the Court. We can use any
system of interpretation which helps us solve a difficulty. In certain
situations Maxwell’s principles would be more appropriate, while in other
situations the Mimansa Principles may be more suitable.34

In the Mimansa system, the literal rule of interpretation is called


the Shruti (or Abhida) principle, and ordinarily it is this principle which is
to be applied when interpreting a text. However, there are exceptional
situations when we have to depart from the literal rule and then certain
other principles have to be resorted to e.g. (1) the Linga (also called
Lakshana) principle or the suggestive power of words or expressions, (2)
the Vakya principle or syntactical arrangement, (3) the Prakarana
principle, which permits construction by referring to other texts in order
to make the meaning clear, (4) the Sthana (position) principle which
means the relative position of one text with reference to another, (5) the
Samakhya (name) principle which means the connection between
different passages by the indication accorded by the derivative words of a
compound name.35

MIMANSA – MAXIMS OF INTERPRETAION

There are certain fundamental maxims in Mimansa Rules of


Interpretation. They are as under: -

                                                            
34
M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai, 2006 (9) Scale
652; Gujarat Urja Vikash Nigam Ltd v. Essar Power Ltd., AIR 2008 SC 1921;
Surjit Singh v. Mahanagar Telephone Nigam Ltd., AIR 2008 SC 2226; Dr. Rajbir
Singh Dalal v. Chaudhari Devi Lal University, Sirsa & Anr., AIR 2009 (Supp.)
768; B. Premanand & Others v. Mohan Koikal & Others, AIR 2011 SC 1925
35
Surjit Singh v. Mahanagar Telephone Nigam Ltd., AIR 2008 SC 2226

20 

 
 Pathakarmanyaya:

The sequence of various steps prescribed must not be changed.

 Dyayo-Pranayantinyaya:

A party cannot take an inconsistent stand.

 Hadhyadipikanyaya:

[Lamp on the central partition wall]. A word may throw light on


preceding as well as succeeding clause.

 Mandukaplutinyaya:

Frog leap….. a clause lying between two clauses may be skipped


over.

 Gobalivardanyaya:

‘Cattle and bull’. If two words having similar meaning are used
and one is general and the other is more specific, the later word
qualifies the former. (ejusdem generis).

 Ghatapatanyaya:

If two words of different gerera appear one after other they do not
control the meaning of each other.

 Samanjavisheshanyaya:

Special rule overrides the general rule.

 Kakadantaparikshanyaya:

Futility of seeking an explanation as is examining a crow’s teeth.

21 

 
 Shringagrahikanyaya:

“Seizing the bull by its horns”. To meet the most difficult point
first.

 Kakataliyanyaya:

“crow getting caught in the clap of a blind person”. Pure


coincidence or no reasonable cansa-cansance. Similar is the
kakashikhanyaya, “Falling of a branch of a tree the moment a crow
was to sit on it”.

 Jalanayananyaya:

“Vessel and the water”. If principal matter is authorized, the


incidental ones are deemed to have been authorized.

 Yah karayati sa karotyeva:

Who causes an act done by another does it himself:

(Modern: “Qui facit per alium, facit per se”, who does through
another does it himself.)

 Ahishiddhamanumatam:

Which is not objected is agreed to.

 Ajatputranamokkirtananyayaha:

Premature actions as raising a question of naming a child before its


birth.

22 

 
JAIMINIS’ RULES OF INTERPRETATION:
The well known scholar Jaimini has enumerated various rules of
interpretation which may be called as Mimansa Rules of Interpretation.
Summarily, they may be mentioned as follows: -

(1) Contradictions apparent in texts were to be ascribed to their


applying to different subjects or one to be general and the other to
be a special rule.

(2) Some word or sentence should not be understood in two different


senses in the course of the same discussion.

(3) Singular includes plural, masculine includes feminine, greater


includes the less.

(4) Primary sense of a word preferred to secondary sense so as to make


it intelligible.

(5) Special rules prevail over general.

(6) Exception to general rule to be strictly construed.

(7) Mere recital of a reason for an Injunction (Arthavada) neither adds


to nor detracts from the rule itself.

(8) From express texts dealing with one subject, a rule can be deduced
by analogy (Atidesa) as applicable to another subject of the same
class when there is no impediment.

(9) An enumeration of persons or objects may be illustrative and not


exhaustive.

(10) Interpretation of APIC (Even), VA (or), CHA (and) Vidhi….


Injunction, Arthavada, recommendatory, could on occasions be
interchangeable.

23 

 
(11) Mimansa Rules of interpretation prescribed logical Methods:
Purvapaksha = proposition to be discussed, then Uttarpaksha = a
refutation of wrong view, then Siddhanta = conclusion.

 Each adhikararana or topic was divided in 5 limbs:-

(1) Vishayavakya (vedic sentence)

(2) Samasya (doubt as to its meaning)

(3) Purvapaksha (prima facie view of objection)

(4) Uttarpaksha (refutation of prima facie view)

(5) Siddhanta (conclusion)

(12) The Sarthakya axiom provided that every word and sentence has
some meaning and purpose. The texts shall be interpreted in such a
way that no provision is rendered meaningless.

(13) The Laghava axiom cautions that if one rule or proposition is


sufficient, more must not be assumed.

(14) The arthaikatva maxim required that the same word or sentence
should not be given different meanings in the same law.

(15) Under the Gunapradhana axiom if a word or a sentence expresses


subordinate idea and it conflicts with principal idea the principal
idea shall prevail and the expression shall be construed
accordingly.

(16) The Samajasya axiom states that a contradiction should not be


presumed if reconciliation is possible. [A harmonious construction
was suggested here.]

24 

 
(17) Under the Vikalya rule if there was real conflict between two
provisions it should be presumed that those were allowed options.

(18) Assertion, indicative power, syntactical unit, context, order and


name are the various means of interpretation and are given in order
of their superiority.

(19) In case of conflict between substantive provision and the


procedural provision the substantive was to prevail.

(20) The law could be mandatory or recommendatory and a provision


can be positive or negative.

Indian classical literature on law, logic and language is vast; and


modern writings thereon are also numerous. In regard to the classical
literature of India, mimansa offered the most appropriate choice as it was
a well developed system; its methodology has considerable resemblance
to legal arguments as addressed in the context of interpretation; and many
of its doctrines, rules and maxims had found practical application in legal
texts, both in dharma shastra including the commentaries thereon and in
judicial decisions pronounced in India in the administration of Anglo
Hindu Law.36 For this reason, the mimansa system appears to be both
suitable and useful for a comparison with modern rules of interpretation.

6.4 MEANING OF STATUTE:

We live in and by the law. It makes us what we are citizens and


employees and doctors and spouses and people who own things. It is
sword, shield and menace; we insist on our wage, or refuse to pay our
rent, or are forced to forfeit penalties, or are closed up in jail, all in the
name of what our abstract and ethereal sovereign the law, have decreed.

                                                            
36
P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 3

25 

 
It is said that the attempt to define the term “law” is a useless
endeavour.37

The law in the wider sense covers all spears of human activities. It
is concerned with social relationship of men and the social consequences
ensuing there from. It is said that the aim of the law is to secure ends of
justice and it is to reach this end that courts of law have been established.

Juristic discussion of theories of law has been much embarrassed


by multiplicity of term to be defined. In jurisprudence, ‘law’ is defined in
various ways, according to the school of thoughts.

A very old use is to mean the order of the universe. A modern use
is o refer to regular sequences of phenomena explained by hypothesis of
rules or principles underlying the sequences. The phenomena of physical
nature, of biology, of history, of linguistics, and of morals may be
referred to laws in this way.38

According to Greek thought, there is the idea of law as human


wisdom, as ascertained and promulgated through the state. There is also
the idea of law as the manifestation of an immutable and eternal right and
justice. In other words, there is the idea of lex and the idea of ‘jus’.39

According to historical school of thoughts, ‘law’ is to mean all


social control or else to mean a taught tradition of doctrines, precepts, and
technique for adjustment of relations and ordering of conduct.

Philosophical school has used the term in the phrase “natural law”
to mean a body of ideal principles, for the guidance of conduct and
ordering of relations, derived by reason.
                                                            
37
W. Friedmann, Legal Theory, 4th Edition, 1960, p. 273
38
P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 5
39
P. M. Baxi: Legal Interpretations (Ancient & Modern), Ibid, p. 23

26 

 
According to Analytical, ‘law’ is aggregate of sanctioned rules of
conduct which have the guinea stamp of a politically organised society, or
as the aggregate of rules and principles for determining controversies
recognised or established by the appointed authorities of such a society,
or as a body of threats of exercise of the force of such a society, or as a
body of predictions as to how and when that force will be applied.

Realists have used the word to mean whatever is done officially in


such a society, or more specifically have used it for the judicial and the
administrative processes.

According to Salmond law is primarily a means towards the


attainment of justice and should therefore be defined with reference to it
and law is merely the instrument while justice is the end, the primary
purpose for which State exists. Further, according to him, law is not right
alone, or might alone, but the perfect union of the two. Law is justice
speaking to man by the will of the state.

Roscoe Pound, an American Professor, regarded law as a social


institution. According to him, “law is the body of knowledge and
experience with the aid of which a large part of social engineering is
carried on. It is more than a body of rules. It has rules and principles and
conceptions and standards for conduct and for decision, but it has also
doctrines and modes of professional thought and professional rules of art
by which the precepts for conduct and decision are applied and developed
and given effect.”40

Austin has regarded law as command of sovereign. According to


Austin, “A law, in the most general sense, is a rule laid down for

                                                            
40
Roscoe Pound: Interpretation of Legal History, p. 156

27 

 
guidance of an intelligent being by an intelligent being having power over
him.”41

According to Holland the immediate objects of law are the creation


and protection of legal rights.

According to Bentham, ‘a law is either a command or the


revocation of one.’42

According to Blackstone, ‘a law was a rule of action which is


prescribed by some superior, and which the inferior is bound to obey”,
rule of action dictated by some superior being.43

Imperative theory of law i.e. it is the command of sovereign – as


expounded by Austin – although one sided contains an important element
of truth. It rightly recognizes the essential fact that civil law is the product
of the state and depends for its existence on the physical force of the State
exercised through the agency of judicial tribunals.

Historically, the oldest and longest continued use of “law” in


juristic writing is to mean the aggregate of laws, the whole body of legal
precepts which obtain in a given politically organized society. But in a
wider phase of this sense it may mean the body of authoritative grounds
of, or guides to, judicial and administrative action, and so of prediction of
such action, established or recognized in such a society including
precepts, technique, and received ideals.44 Law is, indeed, an historical
growth, for it is an expression of customary morality which develops

                                                            
41
Austin: 1 Jurisprudence (3rd Edi.1864) p. 88 as referred to by Roscoe Pound, Ibid,
p. 71
42
Principles of Morals & Legislation (1780) 330 as referred to by Roscoe Pound:
“The Nature of law” – Jurisprudence – Vol.III, p. 69
43
Roscoe Pound, Ibid, p. 70
44
Roscoe Pound: Jurisprudence, Volume I, 1959 Edition, p. 12

28 

 
silently and unconsciously from one age to another. But law is also
conscious or purposed growth.

Sociologists use “law” for the inner order of groups and


associations, for the social control by which that inner order is
maintained, for all social control by which that inner order is maintained,
for all social control, for limitations of power, for organisation of power,
and for institutional social control. One of the most fundamental social
interests is that the law shall be uniform and impartial. There must be
nothing in its action that savors of prejudice or favour, or even arbitrary
whim or fitfulness.45 Uniformity ceases to be a good when it becomes
uniformity of oppression.46

In the science of politics, law is used for a regime of keeping the


peace, and is considered by some identical with the state, law and
political organisation of society being considered the same thing. By
writers on ethical politics a law has been said to be a protest by society
against wrong.47

In another sense the term “law” is used to mean the legal order. It
is used to mean the regime of ordering human activities and adjusting
human relations though the systematic application of the force of a
politically organized society.48

In still another sense law is called as the judicial process. In this


sense law is used to mean the process of determining controversies

                                                            
45
Benjamin N. Cardozo, Ibid, p. 112
46
Benjamin N. Cardozo, Ibid, p. 113
47
Roscoe Pound, Ibid, p. 6
48
Roscoe Pound, Ibid, p. 13

29 

 
whether as it actually text plays or as it is conceived it ought to take
place.49

Law is the body of general principles and of particular rules in


accordance with which civil rights are created and regulated, and wrongs
prevented or redressed. Law and obedience to law are facts confirmed
every day to us all in our experience of life.50

Law in the sense of the legal order has for its subject matter
relations of individual human beings with each other and the conduct of
individuals so far as they affect others or affect the social or economic
order.

Law in the sense of the body of authoritative grounds of or guides


to judicial decision and administrative action has for its subject matter the
expectations or claims or wants held or asserted by individual human
beings or groups of human being which affect their relations or determine
their conduct.51

Law is a social phenomenon. Law is our most structured and


revealing social institution. But its complexity, function, and consequence
all depend on one special feature of its structure. Law is concerned with
social relationships of men and the social consequences ensuring there
from.

The law is only a matter of what legal institutions, like legislatures


and city councils and courts, have decided in the past. So questions of law
can always be answered by looking in the books where the records of
institutional decisions are kept.

                                                            
49
Roscoe Pound, Ibid, p. 14
50
Benjamin N. Cardozo, Ibid, p. 127
51
Roscoe Pound – Jurisprudence, Vol. III, p. 5

30 

 
The law is not a homeless, wandering ghost. It is a phase of human
life located in time and space. 52 The law consists of the rules recognized
and acted on by courts of justice through in the modern concept of law
with social emphasis it also balances the benefits secured by its obedience
with the harm resulting from enforcement by its compulsion.

Law insists merely on the compliance of ‘conduct’ with certain


standards and seldom worries as to the motives of men. It prescribes
external conduct. It is also said to be aggregate of rules of conduct.

It is for the expression and realization of justice that the law has
been created, and, like every other work of men’s hands, it must be
defined by reference to its end and purpose. In idea law and justice are
co-incidence. The law is the instrument which the State uses to promote
justice. Justice was regarded as maintenance of the social status quo, and
philosophers were busied in planning an ideal society in which everyone
was put in the right place, to be kept there henceforth by the law.53Justice
demanded an unanimity in which there would be no violation of mutual
claims or spheres of authority i.e. in which each would keep within his
appointed sphere, and right and law took account primarily of relations of
inequality in which individuals are treated in proportion to their worth,
and only secondarily of relations of equality.54 Justice looks to an ideal
social order; the moral ideal to an ideal man.

Legislation may be described as law made deliberately in a set


form by an authority, which the courts have accepted as competent to
exercise that function. There is universal agreement that deliberate law

                                                            
52
[M. R. Chohen: Reason and Law, 4 (1950)]
53
Roscoe Pound, Jurisprudence , Vol.I, 1959 Ed., p. 465
54
Roscoe Pound, Jurisprudence , Ibid, p. 467

31 

 
making through legislation is indispensable to the regulation of the
modern state.

Legislation is the most potent and sovereign source of law making.


It is the only source which has all the powers of enacting laws, repealing
old laws modifying current laws. It is, therefore, to be distinguished from
law derived from judicial decisions, for though the judiciary may be said
to have power to make law, it has no power to lay down general rules.

A very common use by jurists of all schools, in relation to the term


“law”, is to refer to the regime of adjusting relations and ordering conduct
by the systematic application of the force of politically organised society
jurisprudence.55

Law looks to acts and only to thoughts and feelings so far as they
indicate the character of acts and determine the threat to the general
security which they involve.56The term ‘law’ is used to mean the legal
order, that is, the regime of adjusting relations and ordering conduct by
the systematic and orderly application of the force of a politically
organized society.57 Law is the sum of the general rules for the common
life of man which themselves point out the source of their obligatory
force.58

Law has a definite place as an agent of social evolution. It can play


a vital part in the reshaping of societies. The main functions of law in a
changing society are preservation of stability and of ensuing security
against disorders. There are bound to be changes of law in a changing
society. In democratic system of State organization, there is a great

                                                            
55
Roscoe Pound: The Nature of Law, Vol.II, 1959, p. 6-7
56
Roscoe Pound Ibid, p. 253
57
Roscoe Pound Jurisprudence, Vol. II , pp. 104-105
58
Roscoe Pound – Jurisprudence, Vol. I, 1959 Edi., pp. 172-173

32 

 
variety of interactions between social evolution and legal change. Logic,
and history, and custom, and utility, and the accepted standards of right
conduct, are the forces which singly or in combination shape the progress
of the law.59The final cause of law is the welfare of the society.

The law that has its source in legislation is called enacted law or
statute law. A statute law is expressed in general or abstract terms. Statute
law is the principal source of modern law. It is quickly made, definite,
easy of access and easy to prove. A statute, it is said, is law as soon as it
is passed; it does not have to wait for recognition by the courts before
becoming entitled to the name ‘law’. The courts recognize a statute
because it is law; it is not law merely because the courts recognize it.
Statute may be regarded as a body of universal, absolute, binding rules.

Law is meant to serve the living and does not beat its abstract
wings in the jural void. Its functional fulfilment as social engineering
depends on its sensitized response to situation, subject-matter and the
complex of realities which require ordered control. A holistic
understanding is simple justice to the meanings of all legislations.
Fragmentary grasp of rules can misfire or even backfire.60

The word ‘law’ in the context of Art. 300A of the Constitution


must mean an Act of Parliament or of a State Legislature, a rule, or a
statutory order, having the force of law, that is positive or State-made
law.61

Law in its legislative sense is of much wider import than the


juristic notion of law as the command of a sovereign or as a rule laying

                                                            
59
Benjamin N. Cardozo, Ibid, p. 112
60
Board of Mining Examination v. Ramjee, AIR 1977 SC pp.965, 967 : (1977) 2 SCC
256 : (1977) 34 Fac. L.R. 381 : (1977) 2 SCR 904
61
M/s. Bishamber Dayal Chandra Mohan v. State of U.P., AIR 1982 SC pp.32, 48

33 

 
down a general course of conduct. The term ‘Law’ in Article 245 of the
Constitution must be construed so as to include in its scope all legislative
Acts enacted in the prescribed manner and form.62

The essence of the word ‘law’ is that it is enforceable as law, and


that though the Courts may construe the law, the Courts cannot reject it
nor quash it.63

Statute law and judge-made law are not the only laws. There is
something like a common or general law, the principles of which govern
the making of judicial decisions and which courts and Tribunals state
from time to time.64

Though theorists may not find it easy to define a law as


distinguished from executive orders, the main features and characteristics
of law are well recognised. Stated broadly, a law generally is a body of
rules which have been laid down for determining legal rights and legal
obligations which are recognized by courts. In that sense, a law can be
distinguished from a grant, because in the case of a grant, the grantor and
the grantee both agree about the making and the acceptance of the grant
not so in the case of law. Law in the case of an absolute monarch is his
command which has to be obeyed by the citizens whether they agree with
it or not. Therefore it is not correct to say that while the Court is dealing
with a grant made by an absolute monarch, it is irrelevant to enquire
whether the grant is result of an executive action, or a legislative action.
Nor every act of the absolute monarch and every order passed by him
would become law thought the act or order may have relation exclusively
                                                            
62
Ram Prasad v. State of Bihar, AIR 1952 Pat. 194 at pp.195, 196
63
Emperor v. Abdul Hamid, AIR 1923 Pat. pp.1, t 7 : 68 Ind. Cas 945 : 3 P.L.T. 585 :
1922 P.H.C.C. 274 : 2 Pat. 134 : 23 Cr.L.J. 625 : 1 Pat. L.R. 199 (S.B.)
64
Punkaj Kumar v. Bank of India, AIR 1957 Cal. pp.560, 570 : (1956) 2 L.L.J. 328 :
60 C.W.N. 601

34 

 
to his personal matters and may have no impact on the public at large.
That is why it is unsound to suggest that the jurisprudential distinction
between orders which are judicial, executive or legislative or in relation
to purely individual and personal matters should be treated as irrelevant
in dealing with Acts or orders passed even by an absolute monarch.65

A mere executive order cannot possibly come under “existing law”


or “law in force” as defined in the Constitution.66

The word “law” in its literal sense, may include constitutional law
but it was pointed out that “there is a clear demarcation between ordinary
law, which is made in exercise of legislative power, and constitutional
law which is made in exercise of constituent power. The scheme of the
relevant provisions of the Constitution was then examined and ultimately
the Court reached the conclusion that though both Articles 13 and 368 are
widely phrased, the harmonious rule of construction requires that the
word “law” in Art, 13 should be taken to exclude law made in exercise of
the constituent power.67

The Supreme Court in D. P. Joshi v. State of Madhya Bharat,68 has


held that a notification for an executive direction issued by the State
Government against the provisions of the statute will come within the
definition of the expression “Law” referred to in Article 13 of the
Constitution.

                                                            
65
Raj Kumar Narsingh Pratap Singh Deo v. State of Orissa, AIR 1964 SC pp.1793,
1797 : 1964 All LJ 921 : (1964) 2 SC W.R. 40 : 1965 (1) Cr. L.J. 94
66
K. O. John v. State, AIR 1956 TC pp.117, 118 : 1955 K.L.T. 752 : ILR 1955 TC
1274
67
Sajjan Singh v. State of Rajasthan, AIR 1965 SC pp.845, 856 : (1965) 1 Mad L.J.
(SC) 57 : (1965) 1 SCJ 377 : (1965) 1 An WR (SC) 57
68
AIR 1958 SC 538; R. Jacob Mathew v. State of Kerala, AIR 1964 Ker pp.39, 67 :
1963 Ker. L.T. 783 : 1963 Ker. L.J. 820

35 

 
A law must follow the customary forms of law-making and must
be expressed as a binding rule of conduct. There is generally an
established method for the enactment of laws, and the laws when enacted
have also a distinct form. It is not every indication of the will of the Ruler
however expressed, which amounts a law. An indication of the will meant
to bind as a rule of conduct and enacted with some formality either
traditional or specially devised for the occasion, result in a law but not an
agreement to which there are two parties, one of which is the Ruler.69

The mere fact that the Executive Head also enjoyed legislative
powers for the State does not lead to the conclusion that every order
passed by him, in whatever capacity, would have the status of “law” or “a
provision having the force of law”. It is not correct to say that the Ijlas-i-
khas order was a law in Patiala State and therefore, it became the law for
the State of Pepsu. It was merely an executive order issued by the
Executive Head of the State with a view to lay down certain guiding
principles in the matter of determining seniority of its subordinate
officers. Therefore, the Order or the Rules framed by it did neither
amount to “law”, or “having framed thereunder” nor “a provision having
the force of law”. It was merely an executive Order. It is the nature of the
order that would determine its source and the capacity in which it was
made. The name assigned to it may not be very much material, but the
purpose for which the Order was made may be regarded as one of the
decisive factors. Under the circumstances, the Rules could at any time be
amended, superseded or annulied as the exigency demanded by the
Rajpramukh the Executive Head of the Pepsu State. The contention that it

                                                            
69
Bengal, Nagpur Cotton Mills Ltd., AIR 1964 SC 888; State v. Bundi Electric
Supply Company, AIR 1970 Raj. pp.36, 46 : ILR (1969) 19 Raj. 340 : 1969 Raj
LW 473

36 

 
was for the Legislature of the State to alter or amend those rules was
repelled.70

Whatever might have been its significance in the primitive legal


systems, in the modern developed system of societies, the “law” is of
statutory origin and is embodied in special enactments.

Executive order made by Government in respect of the


administration of its own properties cannot be considered as statutory
rules and are not justiciable under Article 226 of the Constitution.
Government can own property and deal with it in any manner that is
permissible under law. If there is any Statue which imposes a restriction
or if there are any statutory rules which compel a certain procedure to be
followed, that is another matter, and Government would have to follow
them. Otherwise however there seems to be no reason why Government
cannot treat and administer its own property in the way it considers
beneficial.71

The expression “law” used in clause (5) does not mean merely the
direct expression of the will of the Legislature; in its context the
expression “law” must include the lawful expression of the will of some
authority to whom power is delegated by the Legislature. The expression
“property declared by law to be evacuee property” includes property
which is declared by notification issued by the Custodian under the
Administration of Evacuee Property Act to be evacuee property.72

When the Supreme Court construed Art. 286 (1) of the Constitution
in the United Motors case, their interpretation became the law not only

                                                            
70
Gurbachan Singh v. State of Pepsu, AIR 1956 Pepsu pp.26, 28
71
B.S.M. S. Samity v. State, AIR 1961 Cal. pp.214, 217 : 95 Cal. W.N. 685
72
S. A. Mills Corpn. V. Custodian of Evacuee Property, AIR 1957 Bom. pp. 119, 129
: ILR 1957 Bom, 668 : (1957) 59 Bom. 668 : (1957) 59 Bom. LT 309

37 

 
from the date of decision but it should be deemed to be the correct
interpretation from the date of Constitution itself. The consequential
effects flowing from the law so laid down should necessarily follow
subject of course to the law of limitation or special rule such as res
judicata in civil cases or autre fois acquit or convict in criminal cases
provided in the special statutes.

A statute is better described as an instruction to administrators and


courts to accomplish a definite result, usually the securing or maintaining
of recognized social, political or economic values. The statute is
expressed in definite written words.

Statutes are not always rational and it may not be within the
province of the court to import rationality in an enactment under the guise
of interpretation.73

Looked at functionally, the enacted law is an attempt to satisfy, to


reconcile, to harmonize, to adjust the overlapping and often conflicting
claims and demands, either through seeming than directly and
immediately, a through securing certain individual interests, or through
delimitations or compromises of individual interests, so as to give effect
to the greatest total of interests or to the interests that weigh most in our
civilization, with the least sacrifice of the scheme of interests as a
whole.74 Laws are a species of commands.75

The making of law is not static, but is a dynamic process. There is


the idea of law as human wisdom, ascertained and promulgated through

                                                            
73
Lakshmi Ammal v. Ramchandra, AIR 1960 Mad, pp.568, 570
74
Roscoe Pound – Jurisprudence, Ibid, p. 324
75
John Austin: The Province of Jurisprudence Determined Indian Economy Ed. 2012,
p. 26

38 

 
the state. On the other hand, there is the idea of law as the manifestation
of an immutable and eternal right and justice.76

An Act is the product of compromise and the interplay of many


factors, the result of which is expressed in a set form of words.77 Law that
has its source in legislation may be most accurately termed enacted law.78
Every statute is unique. Statutes come out of the past and aim at the
future. They may carry implicit residues or mere hints of purpose.

Law consists of rules which are of broad application and non-


optional character, but which are at the same time amenable to
formalisation, legislation and adjudication.79

Legislation is that source of law which consists in the declaration


of legal rules by a competent authority. To legislate is to make new law in
any fashion. Thus, when judges establish a new principle by means of a
judicial decision, they may be said to exercise legislative, and not merely
judicial power. Legislators can lay down rules purely for the future and
without reference to any actual dispute.80 As Lord Devlin has put it:

“The law is what the judges say it is. If the House of Lords were
to give an Act of Parliament a meaning which no one else
thought it could reasonably bear, it is their construction of
words used on preference to the words themselves that would
become the law”.81

                                                            
76
Roscoe Pound, Ibid, p. 23
77
Jones v. Secretary of State for Social Services, (1972) AC 944, (1972) 1 All E R pp.
145-184 as referred to by Dias, Ibid, p. 167
78
Salmond, Ibid, p. 116
79
Salmond on Jurisprudence, 12th Edition, p. 48
80
Salmond, Ibid, p. 115
81
Delvin, Samples of Law Making P.2, as referred by Dias, Ibid, p. 166

39 

 
6.5 MEANING OF JUDGE:

The term “Judge” may be defined as a person who is called upon


regularly to determine right of parties in contested cases and to
investigate the merits of the claims of the parties and to apply his
unbiased and impartial mind in order to determine the contest. The judge,
says Aristotle, “equalises”.82

According to the Concise Oxford English Dictionary Judge is a


public officer appointed to decide cases in a law court.

The function of the Judge is to decide and determine the rights of


the contested parties. During such decision he has to deal with the
particular Statute applicable in the case. Sometimes Judge has to mold the
law or became a legislature to fill the gaps in the law. A Judge’s
philosophy is reflected in his judicial pronouncement. Such philosophy
develops over a period of time on the basis of perception and experience.

A Judge cannot be a Doctor Jekyll and Mr. Hyde. Analyzing the


role of a Judge as a legislature, to fill the gaps, Cardozo said, “what really
matters is this, that the Judge is under a duty, within the limits of his
power of innovation, to maintain a relation between law and morals,
between the precepts of jurisprudence and those of reason and good
conscience.”83 People often stand to gain or lose more by one judge’s nod
than they could by any general act of Parliament. Judicial decisions affect
a great many people – including parties to the litigation, because the law
often becomes what judges say it is. The decisions of the Supreme Court,
for example, are famously important in this way. That court has the

                                                            
82
Holland on Jurisprudence, Ibid, p. 325
83
Benjamin N. Cardozo: “The Nature of the Judicial Process”, Fifth Indian Reprint
2004, pp. 133-134

40 

 
power to overrule even the most deliberate and popular decisions of other
department of government if it believes they are contrary to the
constitution, and it therefore has the last word on whether and how the
States may execute murderers or prohibit certain things etc.

The work of deciding cases goes on every day in hundreds of court


throughout the country.

Any Judge, one might, suppose, would find it easy to describe the
process which he had followed a thousand times and more. Nothing could
be further from the truth. Let some intelligent layman ask him to explain:
he will not go very far before taking refuge in the excuse that the
language of craftsmen is unintelligible to those untutored in the craft.
Such an excuse may cover with a semblance of respectability an
otherwise ignominious retreat. It will hardly serve to still the pricks of
curiosity and conscience.

In moments of introspection, the troublesome problem will recur,


and press for a solution. The following questions may recur in his mind: -

(1) What is it that I do when I decide a case?

(2) To what source of information do I appeal for guidance?

(3) In what proportions do I permit them to contribute to the result?

(4) In what proportions ought they to contribute?

(5) If a precedent is applicable, when do I refuse to follow it?

(6) If no precedent is applicable, how do I read the rule that will


make a precedent for the future?

(7) If I am seeking logical consistency, the symmetry of the legal


structure, how for shall I seek it?

41 

 
(8) At what point shall the quest be halted by some discrepant
custom, by some consideration of the social welfare, by any
own or the common standards of justice and morals?84

Judges are trusted in the administration of justice and they are


morally entitled to hold office only so long as they serve and fulfil the
essential purpose of the judicial system.

In a trivial sense judges unquestionably “make new law” every


time they decide an important case. They announce a rule or principle or
qualification or elaboration that has never been officially declared before.

Judge is the symbol and the embodiment of justice. The purity of


action and deed presumed in him is absolute. Dedication and loyalty to
that purpose, and not self-serving interest, makes the true Judge. It is said
that a good Judge is one who has four qualities: -

(1) God’s guidance

(2) Conscience control

(3) Fanaticism for fearlessness and

(4) Handling cases in a humanitarian way.

There would be occasions when those at the helm of affairs of the


Government might directly or indirectly try to influence a Judge on some
issue. Some friends and relatives might also whisper something into the
ears of the Judge. But he has only to seek the guidance of God in deciding
his cases and he should not be influenced by emotion, regional or other
considerations, but he should only be under the control of his conscience.
Whatever might be the consequences, a Judge had always to work
                                                            
84
Benjamin N. Cardozo: “The Nature of the Judicial Process”, Fifth Indian Reprint
2004, pp. 9-10

42 

 
without any fear or favour. A judicial Judgment should be a judgement of
objective right and no subjective and free opinion; a verdict and not a
mere personal fiat.

According to Professor Gray, “We all agree that many cases should
be decided by the courts on notions of right and wrong, and, of course,
everyone agree that a judge is likely to share the notions of right and
wrong, prevalent in the community in which he lives; but suppose in a
case where there is nothing to guide him but notions of right and wrong,
that his notions of right and wrong differ from those of the community –
which ought he to follow – his own motions, or the notions of the
community?

Cardozo says that “My own notion is that he would by under a duty
to conform to the accepted standards of the community, the mores of the
times. In such cases one of the highest functions of the judge is to
establish the true relation between conduct and profession.85

Judge is legislating within the limits of his competence. No doubt


the limits for the judge are narrower. He legislates only between gaps. He
fills the open spaces in the law. Judge have, of course power, though not
the right, to ignore the mandate of a statute and render judgment in
despite of it. They have the power, though not the right, to travel beyond
the walls of the interstices, the bounds set to judicial innovation by
precedent and custom.86

The judge, even when he is free, is still not wholly free. He is not
to innovate at pleasure. He is not knight-errant roaming at will in pursuit
of his own ideal of beauty or of goodness. He is to draw his inspiration

                                                            
85
Cardozo, Ibid, pp. 108-109
86
Cardozo: Ibid, p. 129

43 

 
from consecrated principles. He is not yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and
subordinated t the primordial necessity of order in the social life.87

The quest of the Judge should be certainly and justice. Of course,


uncertainty is inevitable. Judges are also subject to human limitations.
Sometimes the judge has no option but to exercise a discretion to make
new law by filling gaps where the law is silent and making it more
precise where it is vague. In deciding cases, the approach of the Judge
should always be a humanitarian way. Though he could not change the
law, he could certainly mould the law and interpret it from the
humanitarian approach.

As Motesquieu says, “The judges are only the months that


pronounce the words of the law, inanimate being, who can moderate
neither its force nor its rigor.”88

Marshall, in Osborne V/s. Bank of the United States, 9 Wheat, 738,


866 has observed that: -
….. Judicial power is never exercised for the purpose of giving
effect to the will of the judge; always for the purpose of giving
effect to the will of the legislature; or in other words, to the will
of the law.89

President Roosevelt in his message of December 8, 1908, to the


Congress of the United States had said that: -
“The chief lawmakers in our country may be, and often are, the
juges because they are the final seat of authority. Every time
                                                            
87
Cardozo: Ibid, p. 141
88
As referred by Cardozo – Ibid, p. 169
89
As quoted by Cardozo – Ibid, p. 169

44 

 
they interpret contract, property, vested rights, due process of
law, liberty, they necessarily enact into law parts of a system of
social philosophy; and as such interpretation is fundamental,
they give direction to all lawmaking. The decisions of the courts
on economic and social questions depend upon their economic
and social philosophy; and for the peaceful progress of our
people during the twentieth century we shall owe most to those
judges who hold to a twentieth century economic and social
philosophy and not to a long outgrown philosophy; which was
itself the product of primitive economic conditions.”90

Cardozo has observed that:

“My duty as judge may be to objectify in law, not my own


aspirations and convictions and philosophies, but the aspirations
and convictions and philosophies of the men and women of my
time. We may figure the task of the judge, if we please, as the
task of a translator, the reading of signs and symbols given from
without. None the less, we will not set men to such a task,
unless they have absorbed the spirit, and have filled themselves
with a love, of the language they must read.91 We shall never be
able to flatter ourselves, in any system of judicial interpretation,
that we have eliminated altogether the personal measure of the
interpreter. In the moral sciences, there is no method or
procedure which entirely supplants, subjective reason.”92

One judge looks at problem from the point of view of history,


another from that of philosophy, another from that of social utility, one is

                                                            
90
As quoted by Cardozo – Ibid, p. 170
91
Cardozo – Ibid, p. 173, 174
92
Geny – as quoted by Cardozo – Ibid, pp. 173-174

45 

 
a formalist, another a latitudinarian, one is timorous of change, another
dissatisfied with the present; out of the attrition of diverse minds there is
beaten something which has a constancy and uniformity and average
value greater than its component elements.”93 “Judges ought to be in
sympathy with the spirit of their times.”94

The work of a judge is in one sense enduring and in another sense


ephemeral. What is good in its endures. What is erroneous is petty sure to
perish. The good remains the foundation on which new structures will be
built. The bad will be rejected and cast off in the laboratory of the year.
Little by little the old doctrine is undermined. Often the encroachments
are so gradual that their significance is at first obscured.95

A decision part is also played by the degree of sympathy which the


court entertains towards the objective in view. Judges do weigh up
considerations of social and individualist policy and the balance does not
always work out in favour of the administration.96

It is no exaggeration, no indulgence in hyperbole, to say that a


judge is the high-priest of the constitution and its laws. To him the spirit
as much as the letter has full value. The nation cannot survive as a
democracy unless judges discharge their functions fearlessly, free from
bias and untainted by prejudices, constant in their strength of purpose,
endeavoming always to do right in every case. 97

Judge’s duty is to declare the law in accordance with reason and


justice is seen to be a phase of his duty to declare it in accordance with
                                                            
93
Cardozo – Ibid, p. 177
94
Cardozo – Ibid, p. 174
95
Cardozo – Ibid, p. 178
96
Dias Ibid, p. 169-170
97
Hon’ble Mr. R.S. Pathak, C.J. H.M. Simla, Inaugurated Speech at the First
Conference of the H.P. Judicial Officers, AIR 1978 Journal 39)

46 

 
the custom. It is the customary morality of right-minded men and women
which he is to enforce by his decree.98

The constitution overrides a statute, but a statute, if consistent with


the constitution, overrides the law of ‘judges’. In this sense, judge made
law is secondary and subordinate to the law that is made by legislators.
Of course, codes and statutes do not render the judge superfluous, nor his
work perfunctory and mechanical. There are gaps to be filled. There are
doubts and ambiguities to be cleaned. There are hardships and wrongs to
be mitigated if not avoided.99 The ascertainment of intention may be the
lease of a judge’s troubles in ascribing meaning to a statute.100

The important task of the judge is to make more profound the


discovery of the latent meaning of the law as well as the filling of the
gaps which are found in every law in greater or less measure.

How does he set about his talk?

The first thing he does is to compare the case before him with the
precedents, whether stored in his mind or hidden in the books. If found,
then next step is to examine and compare them. If they are plain and to
the point, there may be need of nothing more. Judge has a authority to
settle all disputes which come before him.

The part played by the judges in the struggle between the


prerogative and Parliaments enabled them to preserve in their hands a
considerable measure of power, one aspect of which is that what becomes
‘law’ in their interpretation of statute through the operation of stare

                                                            
98
Benjamin N. Cardozo –Ibid, p. 106
99
Benjamin N. Cardozo – Ibid, p. 14
100
Benjamin N. Cardozo – Ibid, p. 15

47 

 
decisis.101 Power is never without responsibility and quantum of
responsibilities bears direct ratio to the amplitude of power. Whenever
public power is vested, the beneficiary is the people.102

Whether a judge does violence to language in its total context is


not always free from doubt.

Even for a judge most sensitive to the traditional limitation of his


function, this is a matter for judgment not always easy of answer. But a
line does exist between omission and what Holmes called “misprision or
abbreviation that does not conceal the purpose”.

Judges may differ as to the point at which the line should be drawn,
but the only sure safeguard against crossing the line between adjudication
and legislation is an alert recognition of the necessity not to cross it an
instinctive, as well as trained, reluctance to do so.103

7 OBJECT OF INTERPRETATION:

Interpretation is a constitutive feature of legal practice. The need


for interpretation arises when our conventional ways of understanding
break down. Lawyers use the forms of argument to appraise claims about
what is true as a matter of law. In many cases we may call them “easy
cases”, the relevant forms of argument all point to a single conclusion.
But the forms of argument do conflict and; when they do, the Tension
must be resolved. Resolving this tension is the activity of legal
interpretation. It is in the act of interpretation that the fabric of law is
repaired, thereby enabling practitioners to go on with the practice.

                                                            
101
Dias Jurisprudence, Ibid, p. 166
102
Ibid, p. 40
103
W. Friedmann, Ibid, p. 461

48 

 
The language of law has a rather dubious reputation in the lay
public. It is something that one cannot understand or at least not so easily,
it is full of special technical expressions, one can get away with saying
things in it that one cannot get away with in ordinary language or at least
not so easily, and so on. The use of legal language is a technical use of
language and thus distinct from ordinary use of language.
Communication pertaining to the domain of law takes place between the
law giver and the men of law in the first instance. This is typically one-
way communication from the law giver, who is not necessarily initiated
into the mysteries of law, to the judge and the counsel, who are
necessarily so initiated being men of law. This one-way communication
takes the form of statutes. It is often said that the statute is often
fragmentary and ill-considered and unjust.104

Statutes seek to control the future by using broad forms of classes


and categories. These are man-made, and there are inevitably casus
omissi, so that a measure of discretion is imported into every decision as
to whether a provision applied to the case in hand or not.105

Principles are complex bundles. It is well enough to say that we


shall be consistent, but consistent with what? Shall it be consistency with
the origins of the rule, the course and tendency of development? Shall it
be consistency with logic or philosophy or the fundamental conceptions
of jurisprudence as disclosed by analysis of our own and foreign systems?
How are we to choose between them? Putting that question aside, how do
we choose between them?106

                                                            
104
Benjamin N. Cardozo, Ibid, p. 16
105
Dias – Jurisprudence, 5th Edition First Indian Reprint 1994, p. 167
106
Benjamin N. Cardozo, Ibid, pp. 64-65

49 

 
Words are often ambiguous. As such often it is necessary for a
judge to elucidate the meaning thereof. A court hears the evidence and
determines the facts, and any doubt as to the scope and applicability of a
given statutory provision may well be resolved by the view taken of the
facts. So discretion, even in the application of statute, is unavoidable.107

In the Middle Ages it was felt that the task of interpreting the law
should be discharged by those who ordained it, for the very word
‘interpretation’ connoted evasion.108

Under the Indian legal system equal importance is given to both (i)
Statutes and codes and (ii) Precedents. Because of the primacy of written
law, statutory interpretation assumes enormous importance. However,
India does not have any code of interpretation and statutory interpretation
function is done by judicial officer guided by different things.

Judges in India employ a variety of the methods of interpretation.


They sometimes boldly interpret certain texts, to the point of giving them
a meaning opposite to the original provisions. Sometimes judges interpret
a provision literally. They always attempt to maintain harmony between
the legislation they apply and changing times and needs. Judges are
accustomed to interpret the law and apply it to each separate instance.
They take into account reasonable, equitable moral and social needs more
than methods. The courts for doing justice many a times have ignored
statutory language and disregarded it by using different canons of
interpretation. In any event, no system of legislation has been able to
escape the need of it.

                                                            
107
Dias, Ibid, p. 168
108
Dias, Ibid, p. 168

50 

 
A statute is the will of the legislature. One of the characteristics of
enacted law is its embodiment in authoritative formula. The very words in
which it is expressed – the litera scripta – constitute a part of the law
itself. Legal authority is possessed by the letter, no less than by the spirit
of the enactment. Hence it is that in the case of enacted law a process of
judicial interpretation or construction is necessary.109 The object of
interpretation is to find out the intention of the legislature.110

The task of interpretation is that of extracting from the formula all


that law contains of legal rules with a view to adapting it, as perfectly as
possible, to the facts of life.111 Its object is to enable others to derive from
the language used the same idea which the author intended to convey.

The luminous record of eminent precedents in profoundly radiant


and rich in hue and colour. It brightly throws into relief that in this
sublime task Judge are endowed to be truly the children of light; obliged
as they are to pierce through the thin veil of superficial to reach to the real
so as to do justice still standing ever alert by the letter of the law.
Language of the legislature often may lurch itself and be deficient and
words may merely prove to be the outer skin of the form shadowing the
very soul. None of these can be permitted to hold as it were the quest to
reach the reality and the search has to be from truth to truth. While at this
with all circumspection one is enjoined to put the phrases and words and
terms of law in the test-tube of “Legislative intent” erected by taking all
relevant factors into considerations112.

                                                            
109
Salmond, Ibid, p. 131-132
110
Omar Tyab v. Ismial Tyab, AIR 1928 Bom., pp.69, 73
111
Julius Stone: Legal System and Lawyers’ Reasoning, First Indian Reprint 1999, p.
216
112
Jamnabai v. Suryabai, A.I.R. 974, Bom. 142.

51 

 
Sometimes the rule of constitution or of a statute is clear, and then
the difficulties vanish. Even when they are present, they lack at times
some of that element of mystery which accompanies creative energy. We
reach the land of mystery when constitution and statute are silent, and the
judge must look to the law for the rule that fits the case.113

In order that the competent court may rightly apply the appropriate
law, it is necessary that the words of the law shall be properly
constructed–interpreted.

The difficulty calling for interpretation may be: (1) which of two or
more coordinate rules to apply; (2) to determine what the law maker
intended to prescribe by a given rule; (3) to meet deficiencies or excesses
in rules imperfectly conceived or enacted. Really it is a judicial finding or
making of law where legislation or the judicial or juristic tradition is
deficient, and ought to be recognized as such.114

8 AMBIGUITY:

Ambiguity is an attribute of any concept, idea, statement or claim


whose meaning, intention or interpretation cannot be definitively resolved
according to a rule or process consisting of a finite number of steps. In
ambiguity, specific and distinct interpretations are permitted. Context
may play a role in resolving ambiguity. Ambiguity is not unlikely to be
involved in almost all use of words. The term “ambiguity” is used to
indicate situations that involve uncertainty.

The lexical ambiguity of a word or phrase pertains to its having


more than one meaning in the language to which the word belongs. The
context in which an ambiguous word is used often makes it evident which
                                                            
113
Benjamin N. Cardozo, Ibid, pp. 18-19
114
Roscoe Pound: Jurisprudence ,Ibid, p. 478

52 

 
of the meanings is intended. In the use of multi-defined words requires
the author or speaker to clarify their context, and sometimes elaborate on
their specific intended meaning. The goal of clear conscience
communication is that the receivers have no misunderstanding about what
was meant to be conveyed115.

By an ambiguity is meant a fresh fairly and equally open two


diverse meanings. Where the languages of doubtful meaning, or where an
adherence to the strict letter would lead to injustice, to absurdity, or to the
contradictory provisions, the duty devolves upon the court of ascertaining
the true meaning it is in this area of legislative ambiguities that courts
have to fill up gaps, clear doubts and instigate hardships which leaves a
sufficient discretion for the judges to interpret laws in the light of that
purpose,116 but it is not permissible first to create an artificial ambiguity
and then try to resolve the ambiguity by resort to some general
principles.117

Language is rarely so free from ambiguity as to be incapable of


being used in more than one sense, and to adhere to its literal and primary
meaning in all cases would be to miss its real meaning in many.

Bentham’s ideal of legislative use of language such that one word


shall always mean one thing is not likely even to be realized. It is said
that sometimes words are vague and ambiguous. Words may stand for a
variety of different things. Words and concepts have no pre-established
meaning. It varies according to context and purpose. The vagueness of
words can be clarified by distinguishing a core of settled meaning from a

                                                            
115
http://www.wikipedia.com
116
Motor Owner’s Insurance Co., Ltd., v. Jadavji Keshoji Modi, (1981) 22 Guj LR
1208 (SC)
117
C.I.T., Madras v. Indian Bank Ltd., Madras, AIR 1965 SC 1473

53 

 
penumbra of border-line cases.118 The usefulness of an analysis of
“meaning” for the clarification of legal language in statutes, court
decisions and legal treatises is obvious.119 An analysis of meaning can
uncover hidden ambiguities or inarticulate value assumptions, but it
cannot indicate directions.

Normally a statutory provision consists of a general description of


some factual situation and the legal consequences ensuing from it.
Whether the general description is wide or narrow, it will have some
limits. The question before a court of law in dealing with a statute is
whether the factual situation proved before it falls within the general
description given in the statute. A real difficulty in determining the right
answer can be said to arise from an “ambiguity” in the statute. It is in this
sense that the words “ambiguity” and “ambiguous” are widely used in
judgments.120

The words of a statute when there is doubt about their meaning are
to be understood in the sense in which they best harmonise with the
subject of the enactment and the object which the Legislature has in view.
Their meaning is found not so much in a strictly grammatical or
etymological sense of language, not even its popular use, as in the subject
or in the occasion on which they are used and the object to be attained.121
Changes in the meaning of technical terms have to be reckoned with.122

                                                            
118
W. Friedmann, Ibid, p. 273
119
W. Friedmann, Ibid, p. 273
120
Inland Revenue Commissioner v. Joiner, (1975) 2 All ER 1050 (HL), pp. 1058,
1059
121
Maxwell’s Interpretation of Statutes, 12th Ed. p. 76; State of U.P. v. Torlbit, AIR
1958 SC pp.414, 416; The Hyderabad (Sind) Electric Supply Co., Ltd. v. Union of
India, AIR 1959 Punj 199; Amrithammal v. Marimuthu, AIR 1967 Mad pp.77, 82
122
Roscoe Pound; Jurisprudence, Vol.III, 1959 Edition, p. 491

54 

 
If a literal meaning has been given to the laws which forbade a
layman to ‘lay hands’ on a priest, and punished all who drew blood in the
street, the layman who wounded a priest with a weapon would not have
fallen within the prohibitions, and the surgeon who bled a person in the
street to save his life would have been liable to punishment. On a literal
construction of his promise Mohammed II’s sawing the Venetian
Governor’s body in two was no breach of his engagement to spare his
head; nor Tamerlane’s burying alive a garrison, a violation of his pledge
to shed no blood. On a literal construction, Paches, after inducing the
defender of Notium to a parley under a promise to replace him safety in
the citadel, claimed to be within his engagement when he detained his foe
until the place was captured, and put him to death after having conducted
him back to it; and the Earl and Argyll fulfilled in the same spirit his
promise to the laird of Glenstave, for he did not hang him until after he
had taken him safely across the Tweed to the English Bank.123

The much debated case in England is relating to the regulation


18(B) of the English Defense (General) Regulations, 1939 which
provided that: “If the Secretary of the State has reasonable cause to
believe any person to be of hostile origin or associations or to have been
recently concerned in acts prejudicial to the public safety or the defence
of the realm or in the preparation or instigation of such acts and that by
reason thereof it is necessary to exercise control over him, he may make
an order against that person directing that he be detained”. The question
before the House was whether the courts were entitled to know the cause
of the Secretary of State’s belief, and to determine its reasonableness.
Were the words “has reasonable cause to believe” ambiguous or not?
Virtually the entire eighty pages of the report were devoted to this

                                                            
123
Maxwell: Interpretation of Statutes, 11th Ed., p. 17

55 

 
question. Lord Atkin took the strong view that “the words in question
have a plain and natural meaning, that that meaning has invariably been
given them in many statements of the common law and many statutes,
that there has been one invariable construction of them in the courts….”
On the other hand, the majority (Viscount Maugham, Lords Macmillan,
Wright and Romer) regarded them as ambiguous, since they might
equally mean either (1) that the Secretary of State must have reasonable
cause, or (2) that he must in good faith think he has reasonable cause or
be “satisfied” that he has reasonable cause so to believe. In the context
and in the light of the policy of the Regulation they preferred the latter,
and held therefore that the good faith of the Minister being admitted, the
court could not inquire into the reasonableness of his belief.124

More problematic are words whose senses express closely related


concepts. “Good”, for example, can mean “useful” or “functional”
(That’s a good hammer), “exemplary” (She’s is a good student),
“pleasing” (This is good soup), “moral” (a good person versus the lesson
to be learned from a story), “righteous”, etc. The various ways to apply
prefixes and suffixes can also create ambiguity125.

Syntactic ambiguity arises when a sentence can have two or more


different meanings because of the structure of the sentence-its syntax.
Syntactic ambiguity may also arise from the unfortunate juxtaposition of
words and phrases. If for example a statute declares that English law shall
apply in a newly independent part of the commonwealth and that such
English law as shall apply shall consist of “the rules of common law, the
rules of equity and the statutes in force at the date of independence”; does
this mean that all rules of common law and equity, even those coming

                                                            
124
Liversidge v. Anderson, [1941] 3 All E R p. 338
125
http://www.wikipedia.com

56 

 
into force after independence, shall be in force in the new territory? Or
does it mean that only such rules of common law and equity as are in
force at the date of independence shall apply in the territory? In other
words the phrase “in force at the date of independence” may govern all
three terms “common law, the rules of equity and the statutes “or it may
govern merely the term “statutes”.126 Only re-writing the sentence or
placing appropriate punctuations can resolve syntactic ambiguity.

Semantic ambiguity happens when a sentence contains an


ambiguous word or phrase- a word or phrase that has more than one
meaning.

Questions of law could not be answered by purely logical


inference; they must be decided by reference to social, moral, political
and other factors. As Holmes remarked, “the life of the law has not been
logic, it has been experience”.127

Difficulty arises from the fact that legislation is concerned with


general classes of persons, objects and actions and must therefore employ
words of general application. Such words, however, are usually far from
precise. Though they draw boundary lines round the class of objects
which they denote, their borders are often anything but clearly marked
out; here they will be faint and hard to perceive, here vague and
wavering, and elsewhere they may disappear altogether. Consequently the
categories to which such words apply are never finally determined.
Because of this feature, which has been described as the “open texture” of
ordinary language, the use of such general terms always leaves open the
possibility of a borderline case. If the text contains omissions which make
it logically imperfect, the reason is more often that the case in question
                                                            
126
Salmond, Ibid, p. 136
127
Holmes in The Common Law, p. 1 as referred to by Salmond, Ibid, p. 38

57 

 
has not occurred to the mind of the legislature, than that there exists with
respect to it a real intention which by inadvertence has not been
expressed.128 What, then, is the rule of interpretation in such cases? May
the courts correct and supplement the defective sententia legis, as well as
the defective litera legis? The answer is that they may and must.

All legal rules are far less certain than was once imagined. In so far
as rules of law are expressed in ordinary language, they too are prone to
this inherent imprecision, and even where the law defines the word with
new precision, this new definition must be given in terms of other words
belonging to ordinary language, so that uncertainty is never completely
ruled out.129

If the letter of the law is logically defective, it must be made


logically perfect, and it makes no difference in this respect whether the
defect does or does not correspond to one in the sententia legis itself.
Whether there is a genuine and perfect intention lying behind the
defective text, the courts must ascertain and give effect to it; where there
is none, they must ascertain and give effect to the intention which the
legislature presumably would have had, if the ambiguity, inconsistency or
omission had been called to mind. This may be regarded as the dormant
or latent intention of the legislature, and it is this which must be sought
for as a substitute in the absence of any real and conscious intention.130

The other case where the letter of the law need not be taken as
conclusive is where a literal interpretation of the statute would lead to
such absurdity and unreasonableness as to make it self-evident that the
legislature could not have meant what is said. For example, there may be

                                                            
128
Salmond, Ibid, pp. 136-137
129
Salmond, Ibid, p. 39
130
Salmond, Ibid, p. 137

58 

 
some obvious clerical error in the text, such as a reference to a section by
the wrong number, or the omission of a negative in some passage in
which it is clearly required.

If the words used in the statute does not include the complete
thought of the legislature or if the words are equally susceptible of several
meanings the Judge has a greater liberty to interpret it and give proper
meaning to it then. It is said that when a court declares a statute as
ambiguous it asserts that some of the words used may refer to several
objects in the manner of that used does not disclose the particular object
to which the word refers. A word is but a symbol which directs the reader
to a reference, but in a case the reference is not sufficiently accurate to
make the referent determinable for the litigation before the court then in
that case it is the function of the court to make the referent determinant or
as determinant as possible from the information and evidence which is
presented to it. This exercise of the court will necessarily result in some
new meaning of the word of the statute.

O’Connor, J. expressed himself thus:


“It has been contended in this case that an ambiguity must appear
on the face of a statute before you can apply the rules of interpretation
relating to ambiguities. In one sense that is correct, and in another sense it
is not. You frequently find an Act of Parliament perfectly clear on the
face of it, and it is only when you apply it to the subject-matter that the
ambiguity appears. That ambiguity arises frequently from the use of
general words. And wherever general words are used in a statute there is
always a liability to find a difficulty in applying general words to the
particular case. It is often doubtful whether the Legislature used the

59 

 
words in the general unrestricted sense, or in a restricted sense with
reference to some particular subject matter.131

If the words of an enactment are ambiguous in the sense that they


can reasonably bear more than one meaning, that is to say, if the words
are semantically ambiguous, or if a provision, if read literally, is patently
incompatible with the other provisions of that enactment, the Court would
be justified in construing the words in a manner which will make the
particular provision purposeful.132 A provision is not ambiguous merely
because it contains a word which in different contexts is capable of
different meanings. It would be hard to find anywhere a sentence of any
length which does not contain such a word. A provision is ambiguous
only if it contains a word or phrase which in that particular context is
capable of having more than one meaning.133

When the language of the section is not only ungrammatical but


also inappropriate and keeping in mind that course have repeatedly
refused to add words to a statute unless the Act itself, on a consideration
of what it is intended to effect, makes it a matter of necessity so to do, it
is unquestionably open to the Court where, nonetheless, the intention of
the section can be seen, to construe the section as though the words were
transposed if by so doing effect can be given to the intention. Since, as
the language stands, it does not make sense or affect the apparent
intention of the section, and since a construction which, in effect,
transposes one would which may well have been inadvertently remedies
an otherwise obvious omission of a matter radically important to the
intention of the section, and obviates as well the necessity for concluding
                                                            
131
Bowtell v. Goldsborough Mort & Co., Ltd., (1906) 3 CLR pp.444, 456 (Australia)
as referred to in N. S. Bindra;s Interpretation of Statutes, Ibid, p. 483
132
Union of India v. S. H. Sheth, (1977) 4 SCC 193
133
N. S. Bindra’s Interpretation of Statutes, Ibid, p. 485

60 

 
that the words to express a vital condition have been altogether left out,
the section should be construed as though the word ‘would’ were
transposed in the manner indicated.134

Where a statute uses a language of doubtful import, and has been


interpreted in a particular manner for a term of years, the interpretation
given to that obscure meaning may reduce the uncertainty to a fixed
rule.135 If the interpretation does not carry out the intention of the framers
of the Act by reason of unhappy or ambiguous phrasing, it is for the
Legislature to intervene, and if the Legislature acquiesces in it by not
amending it, it is legitimate to infer that the interpretation accord with the
intention of the Legislature.136

It is a recognized rule of interpretation that the words of the


statutes, when there is a doubt about their meaning, are to be understood
in the sense in which they best harmonize with the subject of the
enactment and the object which the Legislature has in view.137 If there is
any ambiguity in the use of a word, it has to be resolved in the light of the
object of the enactment.138 If there were any doubt or ambiguity as to the
correct interpretation of the provisions of a statute, and the Court is
dealing with benevolent legislation, the Court ought to interpret the Act
so as to prevent the mischief and to promote the remedy.139 However, in

                                                            
134
Salisbury v. Gilmore, (1941) 2 ALL ER 817; Lyde v. Barnard, (1836) 5 LJ Ex 117
135
Ijjatulla Bhuyan v. Chandra Mohan Banerjee, ILR 34 Cal pp.954, 969, 970 (FB);
John Summers & Soms, Ltd. v. Frost, (1955) All ER 870
136
Ram Nandan v. Kapil Deo, 1951 SCR pp.138, 144; Chandu Kutti v. Maha Devi,
AIR 1928 Mad 534
137
Vithoba v. Govindrao, AIR 1933 Nag pp.193, 197 (FB); State of U.P. v. Ram
Naran Lal, AIR 1966 All 63
138
Rukhmanibai v. Keshavlal Ramlal, AIR 1959 MP 187; Harbans Singh v. State of
Punjab, 1972 Cur LJ pp.168, 180; R. L. Sahni & Co. v. Union of India, AIR 1966
Mad pp.416, 418; R. D. Saxena v. State Industrial Court, 1982 JLJ 702 (MP)
139
H.R. Desai v. B. M. Batliwala, AIR 1968 Bom pp.62, 67; Sevantilal Maneklal
Sheth v. C.I.T., AIR 1968 SC 697

61 

 
the absence of any ambiguity, there is no question of taking any external
aid to the interpretation.140 Even if there is some ambiguity in the
language of the University Ordinance or prospectus, one should accept
the interpretation placed upon it by the syndicate.141

Where the words used are ambiguous, it would clearly be the duty
of the Court to assign to them such meaning as would give effect to the
Act and as would be consistent with the object of the Legislature in
passing the Act.142 It is but fundamental that when two interpretations are
possible that which better effectuates the intention of the Legislature
would be adopted.143

Where a Legislature have made their intentions obscure, a Judge is


bound to infer that there is no departure from the ordinary law intended,
unless expediency or some other consideration compel one to infer that it
was intended.144 Where a statute is ambiguous, the presumption that a
Legislature does not intend to interfere with vested rights is no doubt
reinforced by the absence of provisions of compensation”.145 If a
particular statute is found to be ambiguous, that is susceptible of two
meanings, one leading to the invasion of the liberty of the subject and the
other not, the latter has to be preferred on the ground that there is always
the presumption that it is not the ordinary intention of Legislature to
                                                            
140
Om Prakash v. Dig Vijendra Pal, 1982 ALJ 376 (SC): AIR 1982 SC 1230
141
Miss Lalla Chacko v. State of Kerala, 1967 Ker 124; Principal, Patna College v.
Raman, (1966) 1 SCR pp.974, 985
142
Bhagwant Rambhau v. Ramchandra Kesho, 54 Bom LR 833; F.P. Misser v. Das
ILR 31 Pat 963; Kungu Govindan v. Parakkat Kuhilekshmi AIR 1966 Ker 244
(FB): 1966 Ker LJ 377; Murli Prasad v. Parasnath, AIR 1967 Pat pp.191, 196;
Municipal Development Ltd v. Union of India, ILR 33 Pat 198.
143
Kode Kutimba Row v. Kode Sesharatnamamba, AIR 1967 Andh Pra pp.323, 329
(FB); Public Prosecutor v. Amrath Rao, AIR 1960 Andh Pra pp.176, 178; Gauri
Kumari v. Krishna Prasad, AIR 1957 AIR 1957 Pat pp.575, 583
144
Hargovind Fulchand v. Bai Hirbai, ILR 44 Bom pp.986, 1006; Firm Ramdeo
Onkarmal v. State of U.P., 1981 All LJ 850 (SC);
145
Bhola Prasad v. Emperor, 1942 FCR pp.17, 28

62 

 
interfere with the liberty of the subject.146 Where two constructions of a
provision of law are possible, the benefit of doubt must always be given
to the person on whose liberty an inroad has been made without trial.147
Where there is a reasonable ground for doubt as to the correct
interpretation of an enactment that interpretation should be adopted which
is most in favour of the person to be penalized, especially in fiscal and
penal statutes and which will prevent or will not permit an abuse of the
process of the law.148 Where an equivocal word or ambiguous sentence
leaves a reasonable doubt of its meaning which the canons of
interpretation fail to solve, the benefit of doubt should be given to the
subject and against he Legislature which has failed to explain itself.149

Where a provision is capable of two interpretations the Court


should accept that which validates the provision, rather than the one
which may invalidate it. But his principle cannot be pushed too far so as
to alter the meaning of clear words and to repeal in effect, the statutory
provisions by making them unless without holding them to be void.150

It may, therefore, be will settled that, when a statute is susceptible


of two or more interpretations, normally that interpretation should be
accepted as reflecting the will of the Legislature which is presumed to
operate most equitably, justly and reasonably as judged by the ordinary

                                                            
146
Karamvir v. State, AIR 1954 J&K 7
147
Ghulam Nabi v. State, AIR 1954 J&K 7
148
Emperor v. Himanchal Singh, AIR 1930 All 265 (FB); In Re Ghin Ah Yaing, 24 IC
pp.823, 825 as referred to in N. S. Bindra’s Interpretation of Statutes, Ibid, p. 491
149
Nagin Singh v. Jaggan Natha, AIR 1944 Lah 422, quoting Maxwell on the
Interpretation of Statutes, 7th Ed. At p. 248; Narendra Kumar v. State, AIR 1972
Bom pp.184, 189, as referred to in N. S. Bindra’s Interpretation of Statutes, Ibid,
p. 491
150
State of Punjab v. Prem Sukhdeo, 1977 UJ (SC) pp.281, 282; Commissioner of
Sales-tax v. Radha Krishan, (1979) 2 SCC pp.249, 257; Corborandum Universal
Ltd. v. Trustees of Port of Madras (1994) 1 MLW 183

63 

 
and normal conceptions of what is right and what is wrong and of what is
just and what is unjust.151

“A construction which will promote predictability of results,


maintainability of reasonable orderliness, simplification of judicial task,
advancement by Court of the purpose of legislation, and the judicial
preference for what it regards as a sounder rule of law as between
competing ones, must find favour with the Court”.152

It is well-established rule of interpretation of statutes that in case of


ambiguity in a procedural provision that construction must be accepted
which will advance the remedy rather than prevent it.153 Referring to the
154
application of the Law of Limitation, Fazl Ali, J., observed: “where
there are two possible views under this statute, one tending to deprive a
person of his just dues and the other entitling him to recover them, there
is no reason, I do not see, why one should not lean in favour of the view
which does not entail any hardships or lead to any unjust consequence.
When a statutory enactment is ambiguous and capable of two
interpretations, one is entitled to take into consideration that there are
certain consequences which, it may be presumed, the Legislature did not
intend to bring about and to prefer a construction which avoid such
consequences rather than one which would lead to them.155 When the
Court is faced with two possible constructions of legislative language, it
is entitled to look to the results of adopting each of the alternatives

                                                            
151
Kalu Ram v. New Delhi Municipal Committee, ILR (1966) Punj 145: 67 Punj LR
1190
152
Rameshwar v. Jot Ram, AIR 1976 SC 1516,; Union of India v. B. N. Prasad, AIR
1978 SC 411; Shiveshwar Prasad Singh v. Ghurahu, AIR 1979 SC 413; State of
Haryana v. Sampuran Singh, AIR 1975 SC 1952.
153
Gangadhar v. Nirvachan, etc. Society, AIR 1971 MP pp.16, 19 : L. Bal Mukund v.
Lajwanti, 1975 ALL LJ 256 (SC)
154
Mukhdeo v. Harakh Nayarayan, AIR 1931 Pat pp.285, 291.
155
Sheo Nandan v. Emperor, AIR 1918 Pat pp.103, 105 (FB)

64 

 
respectively in its quest for the true intention of the Parliament. In general
if it is alleged that a statutory provision brings about a result which is so
startling, one looks for some other possible meaning of the statute which
will avoid such a result, because there is some presumption that
Parliament does not intent its legislation to produce highly inequitable
results.156 When the words are capable of another interpretation which
gives effect to the policy underlying the section, such interpretation
should be preferred.157 If there are two possible interpretations, it is the
duty of a Court to accept that one which is more reasonable, more
consistent with ordinary practice and less likely to produce impracticable
results.158

While the principle of construction of a fiscal statute is that any


ambiguity in the language of the section should be resolved in favour of
tax-payer and not the State, it is not permissible for a Court to create an
ambiguity by interpretation as a preliminary to the grant of relief to the
tax-payer to which he would not otherwise be entitled,159 nor to strain and
stress the language of the section so as to enable the tax-payer to escape
the tax, when the phraseology of the section takes within its sweep the
transaction which is taxable.160 The principle is that in a taxing statute,
wherever there is ambiguity of language, the ambiguity must be resolved
in favour of the person to be taxed rather than the taxing authority.

                                                            
156
Fry v. Inland Revenue Commissioners, (1958) 3 All ER pp.90, 94; Critts & CO. v.
Inland Revenue Commissioners (1953) 1 All ER pp.418, 421, as referred to in N.
S. Bindra’s Interpretation of Statutes, Ibid, p. 495
157
Smt. Bobba Suramma v. Peddireddi Chandramma, AIR 1954 Andhra pp.568, 570
158
United Provinces v. Mst. Atiqa Begum, 1940 FCR pp.110, 150; AIR 1941 FC 16;
Parameshwaran v. Narayanan AIR 1950 Mad 221
159
General Commercial Corporation v. Income-tax Commissioner, AIR 1955 Mad
pp.64, 66; Abdul Karim v. Municipality, Gulbarga, AIR 1967 Mys 127.
160
Controller of Estate Duty v. Alladi Kuppuswamy, (1977) 2 SCC pp.385, 396

65 

 
The duty of the judicature is to discover and to act upon the true
intention of the legislature – the mens or sentential legis. 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.
Nevertheless in all ordinary cases the courts must be content to accept the
litera legis as the exclusive and conclusive evidence of the sententia legis.
They must in general take it absolutely for granted that the legislature has
said what it meant, and meant what it has said.161 There are however,
cases where the letter of the law need not be taken as conclusive. The first
of these is where the law is logically defective. A Statute may suffer from
these different types of logical defect. First, it may be defective by virtue
of ‘semantic’ ambiguity. A word in an Act of Parliament may be
ambiguous as a result of the ‘open texture’ of language. A second kind of
ambiguity, which may be termed ‘syntactic’ ambiguity, arises from the
ambiguity of formal words like ‘or, ‘and’, ‘all’ and so forth. It is for
instance court is empowered to ‘fine or imprison” does this mean that the
court can either fine or imprison but not both? Or does it mean that the
court can fine, or imprison or both? In other words is the word “or” being
used exclusively or inclusively? In all such cases of ambiguity, whether
conceptual or syntactic, the letter of the Statute provides no solution.
Here the courts must decide between the two alternatives. In such a case
it is the right and the duty of the courts to go behind the letter of law and
to ascertain from other sources as best they can the principle intention
which has thus failed to attain perfect expression. A third kind of
ambiguity may be that such ambiguity may be that such ambiguities do
not arise from a failure to express accurately the intention of the
legislature. Perhaps the legislature speaks ambiguously because there is
no single and definite meaning to be expressed. If the words of the
                                                            
161
Salmond: Jurisprudence – 12th Edition – p.132.

66 

 
legislature are self contradictory, it is possibly due to some repugnancy
and confusion in the intention itself. If the text contains omissions which
make it logically imperfect, the reason is more often that the case in
question has not occurred to the mind of the legislature, than that there
exists with respect to it a real intention which by inadvertence has not
been expressed. In such a case the court can correct and supplement the
defective verbal expressions of the law. If the letter of the law is logically
defective, it must be made logically perfect, and it makes no difference in
this respect whether the defect does or does not correspond to one in the
intention itself. Where there is a genuine and a perfect intention lying
behind the defective text, the courts must ascertain and give effect to it;
where there is none, they must ascertain and give effect to the intention
which the legislature presumably would have had, if the ambiguity, in
consistency or omission had been called to mind. The other case where
the letter of the law need not be taken as conclusive is where literal
interpretation of the statutes would lead to such absurdity and
unreasonableness as to make itself evident that the legislature could not
have meant what it said.162

In all such cases of ambiguity, whether conceptual or syntactic, the


letter of the statute provides no solution, then the courts must decide
between the two alternatives. In such a case it is the right and duty of the
courts to go behind the letter of the law and to ascertain, as best as they
can, the principal intention of the legislature, which might failed to attain
perfect expression.163

                                                            
162
Salmond on Jurisprudence – p. 137
163
Salmond, Ibid, p. 136

67 

 
9 APPLICATION OF VARIOUS MODES OF
INTERPRETATION:
A statute expresses a more or less general proposition. The task of
the judge is to find how far the facts before him can be fitted into the
abstract and generalizing definition of the statute. In applications of
precedent, on the other hand, the sorting out process starts with the
comparison of one set of facts with another set of facts. Even if the judge
in either case is possessed by a strong desire to do justice rather than to be
dominated by statutory texts or precedent, he will seek to attain his
objective by different ways.164

A large majority of interpretation problems are predominantly


technical.165 There is no single set of rules of statutory interpretation. It
would be truer to speak of conflicting approaches and guidelines, largely
supported by dicta.166

A number of canons of interpretation have arisen as a result of


experience of difficulties in interpreting the particular law.

The well known principles of interpretations of statutes are as


under: -

A. Grammatical- Literal meaning Rule

B. Golden Rule

C. Mischief Rule - Functional Interpretation, Logical-Social


Engineering

                                                            
164
W. Friedmann, Ibid, p. 451-452
165
W. Friedmann, Ibid, p. 456
166
Dias, Ibid, p. 170

68 

 
A. Grammatical- Literal meaning Rule:

The first and most elementary rule of interpretation is that it is to


be assumed that the words and phrases of technical legislation are used in
their technical meaning if they have acquired one, and otherwise in their
ordinary meaning, and the second is that the phrases and sentences are
construed according to the rules of grammar167.

According to Vepa P. Sarathi, the words of an enactment are to be


given their literal meaning, and if such meaning is clear and
unambiguous, effect should be given to a provision of a statute whatever
may be the consequence168.

B. Golden Rule:

The Golden Rule of interpretation is to adhere to the ordinary


meaning of the word used unless it leads to anomaly or absurdity. Where
to apply words literally would defeat the obvious intention of the
legislature and produce a wholly unreasonable result, Judge can do some
violence to the words and so achieve that obvious intention and produce a
rational interpretation.

C. Mischief Rule:

As early as the year 1584, it was observed in Hydon’s case, 3 Co.


Rep.7a, that the office of all the Judges is always to make such
construction as shall suppress the mischief, and advance the remedy, and
to suppress subtle inventions and evasions for continuance of the
mischief, and pro private commando, and to add force and life to the cure
and remedy, according to the true intent of the makers of the Act,
probono public.
                                                            
167
Maxwell on the Interpretation of Statute, 12th Edn.(2004), p. 28
168
Vepa P. Sarathi, “The Interpretation of Statutes”, Second Edition 1981, p. 9

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These rules are being applied by the Courts while interpreting
various statutes. These rules are here as to interpret laws so that the
legislation serves its purpose for which it was enacted. The rules examine
the wording of the particular statute and are the most common approach
of interpretation of the English legal system. The three rules take different
approaches in the interpretation and some judges use one rule while
another prefers to use another rule. That is why we have three rules not
just one. This means that in English Legal System, the interpretation of
statute may differ depending upon which judge is hearing the case. Once
an interpretation has been made, a Judge can form a new precedent for
future cases in the same area of law. Since the three rules can result in
vary varied outcomes, it is important to understand the three rules. In the
succeeding chapters, these rules are discussed in detail.

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