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Law Notes
Interpretation of Statutes
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1. CODIFYING AND CONSOLIDATING STATUTES
1. Codifying statutes
Codifying Acts are passed to codify the existing law. It is one which purports to
state exhaustively the whole of the law upon a particular subject including pre-
existing and common laws.
The purpose of codifying statute is to present an orderly and authoritative
statement of the leading rule of law on a given subject.
Ex: Code of Civil Procedure, 1908
Codification systematizes case-law as well as statutes
The codifying Act is presumed not to alter the law unless a contrary intention
appears.
Lord Herschell observed that the principles applicable for construction of
codifying statutes are two:
a. Firstly, the language of the statute should be examined; and
b. Secondly, natural meaning of the statute should be lo
c. oked for without getting influenced by any considerations as to previous state of
law.
The law should be ascertained by interpreting the language used, instead of, as
before, by roaming over a vast number of authorities in order to discover what
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the law was, an appeal to earlier decisions can only be justified on some special
ground.(Bank of England v. Vagliano Brothers, 1891 AC).
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Acc. To Crawford – “The object of a revision or codification…. Is to clarify
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existing statute law and make it easily found. Consequently it is really more
than a mere restatement. A re examination of the exiting statute law is
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necessarily implied. But the restatement may be in the original language of the
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statute. Or words and phrases may be altered, new matter incorporated, and
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statutes even omitted from the revision or codification. And after the revision or
codification has been adopted, it becomes the reservoir of all the statute law on
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the subjects indicated by various titles; the revision being a substitute for the
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displacing the former law. As a result, any errors must be corrected by
legislative amendments after the revision or code has been enacted into law…
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Not only may the statutes composing the codification be relocated but their
language may also be changed. Generally, however, the revision is simply a re-
statement of existing statute law, either in the same or in substantially the same
language. Where this is true, the old statutes are continued without any change
in their meaning, but in many instances, the language of existing statutes are
substantially altered; words may be added or omitted; phraseology and
punctuation changed. In such instances, however, there is a presumption that the
legislature did not intend to change the meaning of the statute, unless the intent
to do so is clearly apparent. Where it is the intent of the legislature to make a
change in the statutes meaning it must be given effect… a code is simply a part
of the statutory law and has no higher standing or sanctity than an ordinary
statute. Accordingly, where there is ambiguity in the revised statute, it should be
construed as expressing the law as it was prior to the revision, unless the court
finds a clear intention to alter the old law”.
Acc to Sutherland, Statutory Construction, Vol. 3, “A statute incorporated into a
code is presumed to be incorporated without change even though it is re-worded
and re-phrased and in the organization of the code its original sections are
separated. Where, however, the legislative intent is clear that a change in the
law is intended, the new provision prevails. In case of ambiguity it is
permissible to resort statute, prior legislative history of the Act, the form and
language of the prior statute, prior interpretation and all matters in pari materia
in order to arrive at the true meaning of the Code’s provision”.
2. Consolidating statutes
A consolidating statute is one which collects the statutory provisions relating to
a particular topic, and embodies them in a single Act of Parliament, making
only minor amendments and improvement.
The purpose consolidating statute is to present the whole body of statutory law
on a subject in complete form on particular branch of law. Ordinarily, no
change of law is intended in a consolidation Act.
For the object of the Act was merely to “reproduce the law as it stood before”.
For ex: The long title of the Code of Criminal Procedure, 1973 is “An Act to
consolidate and amend the law relating to Criminal Procedure”.
A consolidating statute is often not a mere compilation of earlier enactments.
The very object of consolidation is to collect the statutory law bearing upon a
particular subject, and to bring it down to date, in order that it may form a
useful Code applicable to the circumstances.
Purely consolidated statute the presumption is that-
• Parliament does not intend to alter the existing law applies with particular force.
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For the object of the Act was merely to ‘reproduce the law as it stood before.’
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Words used in the consolidating Act bear the same meaning as that which they
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had at the time the enactments consolidated were passed.
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Such a statute is not intended to alter the law. Hence, it is relevant to refer to the
previous state of the law or to judicial decisions interpreting the repealed Acts
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for purpose of construction of corresponding provisions in the consolidating
Act. a
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When the consolidation Act gives no guidance as to its proper interpretation
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only then it is permissible to refer to the repealed enactments for guidance. But
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when the consolidation Act is not ambiguous or obscure recourse to repealed
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enactment should not be done.
Difference.
a. Consolidating statutes is the combination of the statutes relating to a given
subject- matter. It does not contain the case-law.
b. consolidating statute should be interpreted according to the normal canons of
constructions and recourse to repealed enactments can be taken only to solve
any ambiguity.
c. The primary rule of construction of a consolidating statute is to examine the
language used in the statute itself without any reference to the repealed statutes.
3. Amending statutes
Any change of the scope or effect of an existing statute, whether by addition,
omission, or substitution of provisions, which does not wholly terminate its
existence, whether by an Act purporting to amend, repeal, revise, or
supplements or by an Act independent and or original in form, is treated as
amendatory.
Whole enacting an amending law, that an existing provision shall be deleted and
a new provision substituted.
a. Clarification
When the legislature amends to clarify things it does not necessarily mean that
the original Act did not include and cover those things.
Amendment offers a convenient method of curing a defect in an
unconstitutional Act.
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Amendments are often made to clear up ambiguities and such amendments
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obsolete.
d. Effect of Amendment on Parent Statute
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The amendment will be given a reasonable construction: a literal construction
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which would lead to absurd consequences will be avoided.
When the intention of the legislature is not clear from its language, the court
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will consider surrounding circumstances such as title, legislative proceeding and
report of the committee.
Amendment not to incorporate something inconsistent with or repugnant to
object of Act.
A change in the law of procedure operates retrospectively and unlike the law
relating to vested right, is not only prospective.
The promulgation of an amending Act cannot without any express term take
away from a party any right which might be vested in him under a prior Act.
2. DELEGATED LEGISLATION-I
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•
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Pressure upon the Parliament - Even if in continuous session, the Parliament can
not give the quantity & quality laws required
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Technicality - Subject matter of legislation may be technical & require
consultation with experts
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Flexibility & experimentation - Cannot foresee all contingencies - Power is
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given to executive to meet unforeseen contingencies - Rapid amendment
Emergency - Quick action is required
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• Confidential matters - If public interest demands the nondisclosure until coming
into operation - Ex: imposition of restriction on private ownership
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Direct participation in the structuring of law
Though useful & inevitable, cannot be more - Administration may take away
the right - Norm of jurisprudence of delegation must be followed
I. Forms of Delegated Legislation
Rule: Sec.3 (51) of the General Clause Act, 1891, contains a definition of
‘Rule’ in the following words “rule shall mean a rule made in exercise of a
power conferred by any enactment and shall include a regulation made under
any enactment’.
‘Circulars’ or instructions which have been issued under the Act will have force
of law.
Notification issued for the purpose of brining into operation the enabling Act or
to grant exemptions from its provisions or to extend its operation to new
persons or objects.
Bye laws are conferred on local authorities and statutory or other undertakers
‘for regulating the conduct of persons within their areas or resorting to their
undertaking’. And the bye-laws are generally subordinated to the rules and
regulations, if any to be made under the enabling Act.
II. Constitutional Limits of Legislative Delegation
The legislature cannot delegate essential legislative functions which consist in
the determination or choosing of the legislative policy and of formally enacting
that policy into a binding rule of conduct.
The legislature cannot delegate “uncanalised and uncontrolled power.
Only delegation of ancillary or subordinate legislative functions.
It is the duty of the court to strike down without hesitation any arbitrary power
conferred on the executive by the legislature.
It is settled that the legislature, except when authorized by the constitution,
cannot create a parallel legislature or abdicate its functions in favour of some
outside authority.
Legislature cannot delegate its power to repeal a law or even to modify it in
essential feature.
The delegated legislation must be consistent with the Parent Act and must not
violate legislative policy and guidelines.
Sub-delegation of legislative powers in order to be valid must be expressly
authorized by the parent act.
If the parents Act is repealed, notification issued under it would also stand
repealed unless saved by the repealing act. m
In re, Art. 143, Constitution of India
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Is said to be the bible of delegated legislation. Seven Bench Judge heard the
case and produced seven separate judgment.
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Sec. 2 of Part C States Laws Act, 1950, which confers authority on the Central
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Government to extend to Part C States laws in force in other states.
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The analysis of Sec.2 and decision is as follows:
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• Power is conferred to extend not only existing but also future laws. This has
been upheld.
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• Parliament has conferred the authority on the Central Government not only to
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extend laws enacted by it but also laws enacted by State Legislatures which
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have no legislative jurisdiction in Part C States. This has also been upheld.
• Power is conferred to extend these laws “with such restrictions or
modifications’ as the Central Government may think fit.
• Power to repeal is considered to be a essential legislative functions.
Sec. 2 of the UP Zamindari Abolition and Land Reforms Act, 1951, confers
power on the state government to extend the act to other areas in the state to
which it was not initially applied.
Held: “It is well settled that the legislature may leave it to the executive to apply
the provisions of an Act to different times on various consideration”
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cannot be framed in matters that are not contemplated under the Act’.
rule-making power is a species of delegated legislation. A delegate
therefore can make rules only within the four corners thereof.
III. Norms of jurisprudence of delegated legislation.
• Power of delegation is a constituent element of legislative power.
• Essential legislative functions cannot be delegated - Legislative policy
• Non-essential powers may be delegated, however numerous & significant they
may be
• Essential legislative functions are to be determined on case to case basis
• Very broad general statements may constitute the legislative policy
• Delegated legislation must be consistent with the parent Act
• Delegate cannot have more power than that of the delegator
• Sub-delegation must be authorized by the parent Act
• Delegated legislation must not be unreasonable & must not violate any
procedural safeguards
3. DELEGATED LEGISLATION-II
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Held: This amount to unreasonable restriction on the exercise of the
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fundamental right and, hence, both Commissioner’s order and the Act are ultra
vires the Constitution.
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2.
The enabling Act may y n
The delegated legislation is ultra vires the constitution
not be ultra vires the constitution, yet the rules and
regulations frameddthere under may violate any provision of the constitution.
Himmat laltk.u Shah v. Commissioner of Police, AIR 1973
S Sec. 33(1) of the Bombay Police Act, 1951 had authorized the
commissioner of Police to make rules for regulation of conduct and behavior of
assemblies and processions on or along the streets.
Rule 7 made there under provided that no public meeting will be held
without previous permission of the commissioner.
Held: The rule was held ultra vires on the ground that the arbitrary
discretion vested in the administrative agency in granting or refusing permission
amount to unreasonable restriction on the exercise of freedom of speech and
expression.
3. Rulemaking authority is ultra vires the enabling act
The power to make subordinate legislation is derived from the enabling
Act and it is fundamental that the delegate on whom such a power is conferred
has to act within the limits of authority conferred by the Act.
Rule cannot be made to supplant the provisions of the enabling Act but to
supplement it.
The delegate is not authorized to make a provision beyond the policy of the Act.
The rule of interpretation is that if subordinate legislation is directly repugnant
to any well-established principle of statute… it is either ultra vires altogether, or
must, if possible, be so interpreted as not to create an anomaly.
If reconciliation were found to be impossible between the section and the rules
made there under them, the rule so made must give way.
Rules must be read together with the Act under which they are made, cannot
repeal or contradict express provisions in the Acts from which they derive their
authority, and if the Act is plain, the rule must be interpreted so as to be
reconciled with it.
Statutory rules may do anything within the scope of the Act.
When the Act regulating mining leases assures the lessee the right to carry on
mining operations during the entire period of lease and provides for premature
termination only after giving a hearing to the lessee, the delegate cannot while
making a rule in exercise of the power granted under the Act make a provision
for termination of all the leases forthwith without notice or hearing to the leases.
(State of T.N. v. P. Krishnamurthy, AIR 2006 SC).
The delegate cannot override the Act either by exceeding the authority or by
making provisions inconsistent with the Act.
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The delegate has to exercise the power of making subordinate legislation in
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accordance with procedure prescribed, if any. In considering the effect of non-
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compliance of a procedural provision of the Act, one has to see whether the
non-compliance relates to a mandatory or a directory provision. In the former
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case the defect will be fatal; whereas in the latter case the defect will be ignored.
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The Kerala Abkari Acty n
Kerala Samasthana Chethu Thozhilali Union v. State of Kerala, AIR 2006 SC.
seeks to control and regulate various categories of
intoxicating liquord
including Arrack and Toddy.
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which is inconsistent therewith or repugnant thereto”.
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4. DELEGATED LEGISLATION-III
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Retrospectivity of Delegated Legislation
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The rule-making authority does not possess plenary power to give the
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subordinate delegated legislation retrospective operation unless and until that
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power is expressly conferred by the parent enactment.
Taxation by delegated legislation
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No tax, fee or any compulsory
regulation unless the y
n charge can be imposed by any bye-law, rule or
statute under which the subordinate legislation is made
Even when au
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specifically authorizes the imposition.
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tax is expressly conferred by the enabling Act, it must be
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the power can be directed, corrected or cancelled by the principal
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Jain & Jain - “It is the function of the legislature to legislate, but if it seeks to
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give this power to the executive in some circumstances, it is not only the right
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of the legislature, but also its duty, as principal, to see how its agent carries out
the agency entrusted to it. Since it is legislature which delegates legislative
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power to the administration, it is primarily for it to supervise & control the
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actual exercise of this power, and ensure against the danger of its objectionable,
abusive & unwarranted use by the administration”
(a) S
Direct general control - Proceedings in Parliament
* Debate on the delegating bill - Necessity, extent, type of delegation etc
* Asking questions & giving notice for discussion
* Moving resolution on urgent matter, when the reply of the govt. is
unsatisfactory
* Vote of grant - Member may propose a cut on the budget demands of a
ministry
* Directions by the speaker to refer to a committee to examine the extent of
powers sought to be delegated
(b) Direct special control - Laying on the table of the legislature
Extensively used in England - Statutory Instrument Act, 1946 - Administrative
rule-making is subject to the supervision of the Parliament - Immediate effect
but subject to annulment by either House
* Laying with no further direction - Simply to inform the Parliament
* Laying subject to negative resolution - Effect soon after laying on the table of
the House, but shall cease if annulled
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“Administrative Law — Subordinate/Delegated Legislation — Implementation of Court
orders/Compliance with judicial precedents: a
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Promulgation of Rules to nullify/not comply with court orders is not permissible. Though
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Government has the prerogative to frame service rules in one way or the other, subject to
judicial review on settled principles, it is impermissible to exercise rule-making power in
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such a way as to nullify/not comply with court orders, and the latter also amounts to contempt
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of court. Hence, costs of Rs. 50, 000 imposed upon Govt. of Bihar for non-compliance with
Supreme Court order in Bihar State Govt. Secondary School Teachers Assn. v. Bihar
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Education Service Assn., (2012) 13 SCC 33, whereby respondents refused to grant all
admissible benefits of merger of cadres as directed by Court. [Bihar State Govt. Secondary
School Teachers Assn. v. Ashok Kumar Sinha]
[(2014) 7 SCC 416]”
5. DELEGATED LEGISLATION-IV
V. Procedural control
Allowing the specific audit of the rules by those for whose consumption they
are made
(a) Drafting
By an expert draftsman, who is aware of its intra vires nature - The rules in
Australia are either drafted or checked by parliamentary draftsmen - India
suffers from poorly drafted rules
(b) Antenatal publicity
No separate law in India - In some cases the parent acts have provided - Ex:
Central Tea Board Act, 1949, Charted Accountants Act, 1912 etc.
Section. 23 of the General Clauses Act, 1897: Previous Publication
There is no uniform procedure in India for making subordinate legislation,
except in the case of rules or bye-laws made under those Central Acts or
Regulations which impose the condition of ‘previous publication’ which brings
into play the procedure prescribed in section 23.
• Rules to be published in draft in the Gazette
• Objections & suggestions to be invited
• Objections & suggestions to be considered
There is no general principle that previous publication of subordinate legislation
is necessary; it is necessary only when the statute so requires. Further, the
requirements of previous publication does not give any right to the objectors of
being orally heard.
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Wide-spread use in USA - Administrative Procedure Act, o 1946
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Consultation with affected persons m
(c)
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Democratic process - Makes
effective y n the administrative rule-making acceptable &
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effect, must u
dignitary. It is, therefore,
be published in some suitable manner, whether such publication is
S by the parent statute or not”.
prescribed
Held: The rules of natural justice demand the publication before enforcement. It
must be broadcast in some recognizable way so that all men may know what it
is, or, at the very least there must be some special rule or regulation or
customary channel by or through which such knowledge can be acquired with
the exercise of due and reasonable diligence.
Generally comes into force on the date of publication.
B.K Srinivasan v. State of Karnataka, AIR 1987 SC
Where the statute itself required the publication of the delegated legislation
and where the finding was that there was publication as required by the
statute, the Supreme Court made some general observation which support the
view that publication in some suitable form, even if not specifically required
by the statute, is essential for making the delegated legislation effective.
The Principles enunciated In Harla’s case and Shrinivasan’s case which is
still the law, requires some form of publication before delegated legislation
can be effective. But that principle also does not require communication of
any general rule, regulation etc. to each and every individual affected
thereby,, and it would be sufficient if the same is published in such manner
that person can, if they are interested, acquaint themselves of its contents.
If a question arises as to when was a particular order or rule was made or
notification issued, the material date is the date of Gazette publication as
required by the statute and not the date of publication in a newspaper or the
media.
Defect in publication
Govindlal v. Agricultural Produce Market Committee, AIR 1962 SC.
The draft notification was required under the Parent Act to be published
in official Gazette as well as in Gujrati in a newspaper having circulation in the
area concerned.
The notification was issued in the Official Gazette but it was not
published in Gujrati.
Held: Requirement of publication in Gujarati was mandatory and notification
was invalid.
VI. Sub-Delegation
When a statute confers legislative powers on an administrative authority and
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that authority further delegate those powers to another subordinate authority or
agency, it is called sub-delegation.
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Delegate on whom power to make subordinate legislation is conferred cannot
further delegate that power.
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Judicial or quasi-judicial power conferred by a statute cannot be delegated
except when specifically permitted. m
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A discretion conferred by statute is prima facie intended to be exercised by the
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authority on which the statute has conferred it and by no other authority.
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Ganapati Singhji dv. State of Ajmer, AIR 1955 SC.
The enablingu
t Act conferred power on the Chief Commissioner to make rules for
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the establishment
Chief
of proper system of conservancy and sanitation at fairs. The
Commissioner made rules empowering the District Magistrate to devise
his own system and see that it was observed.
Held: Rules to be ultra vires as the enabling Act conferred power on the Chief
Commissioner and not on the District Magistrate. Therefore, sub-delegation was
declared invalid.
6. DICTIONARY
4. Dictionaries
When a word is not defined in the act itself, it is permissible to refer to
dictionaries to find out the general sense in which that word is understood in
dictionary.
It is elementary that the meaning of a staute must, in the first instance, be sought
in the language in which the act is framed, and if that is plain, and if the law is
within the constitutional authority of the lawmaking body which passed it, the
sole function of the courts is to enforce it according to its terms….where the
language is plain and admits of no more than one meaning, the duty of
interpretation does not arise, and the rules which are to aid doubtful meanings
need no discussion. (Camminetti v. United States, 242 U.S)
In selecting one out of the various meanings of a word, regard must always be
had to the context of the Act. When context makes the meaning of the word
clear, other dictionary meaning become irrelevant.
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The view of Krishna Aiyar, J: “Dictionaries are not dictators of statutory
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construction where the benignant mood of a law, more emphatically, the
definition clause furnishes a different denotation.”
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If diverse meanings of words are given in a dictionary, then court should always
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keep in mind the context in which a word has been used in choosing the correct
meaning of the word.
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In the words of Jeevan Reddy, J: ‘A statute cannot always be construed with the
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dictionary in one hand and the statute in the other. Regard must also be had to
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the scheme, context and to the legislative history’.
If the Act does not define a word, the legislature must be taken to have used that
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word in its ordinary dictionary meaning.
When the context makes the meaning of word quite clear, it becomes
unnecessary to search for and select a particular meaning out of the diverse
meaning a word is capable of.
A statute is not to be interpreted merely from a ‘lexicographer’s angle’; in built
policy of the legislature as discernible from the object and scheme of the Act
must be given effect to.
Kanwar Singh v. Delhi Administration, AIR 1965 SC.
While construing Section 418(i) of the Delhi Municipal Corporation Act, 1959
observed:
It is the duty of the court in construing a statute to give effect to the
intention of the legislature. If, therefore, giving a literal meaning to a word used
by the draftsman, particularly in a penal statute, would defeat the object of the
legislature, which is to suppress a mischief, the court can depart from the
dictionary meaning or even the popular meaning of the word and instead give it
a meaning which will advance the remedy and suppress the mischief.
Employees State Insurance Corporation v. Tata Electric and Locomotive
Company, AIR 1976 SC
Whether apprentice is employee under Employees State Insurance Act,
1948 - apprentice means person who is undergoing apprenticeship training in
designated trade in pursuance of contract of apprenticeship - held, apprentice is
not an employee.
The question was whether the respondents were bound to contribute monetarily
under the Employees State Insurance Act, 1948 in respect of apprentices of the
company.
The dictionary meaning of the word apprentice shows that impart some kind of
training by the company to the apprenticeship under mutually agreed terms and
conditions.
Held: Even if the apprentice is paid some money by the company, this does not
make him an employee of the company.
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The Court had to consider the scope of the expression ‘substantially
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financed’, occurring repeatedly in the Right to Information Act, 2005.
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The Court placed reliance on the definitions given in the Oxford English
Dictionary and Black’s Law Dictionary, to hold that the aforementioned
S expression would mean that funding ought to be so substantial to the
body that it ran by such funding and it would struggle to exist if the
funding was withdrawn.
5. Text Books and Encyclopedias
Text books may be referred to by the courts to arrive at the true meaning of an
enactment.
For ex: Manu, Jajnavalkya, Vijnaneswar,
Jimutvahan and kautily have been frequently quoted by courts with approval.
For example in Kesavanad Bharati v. State of Keral where a large number of
text books were quoted in arriving at the decision.
Ram Lal v. State of Rajasthan, (2002) I SCC
Whether camel milk was also included under the Prevention of Food
Adulteration Rules 1955.
The Supreme Court referred to Encyclopedia Americana (vol.5, p 263) where it
is mentioned that the milk of camel is nutritious.
World Book Encyclopedia it is said that ‘millions of people who live in Africa
and Asia depend on camels to supply most their needs….for people who live
deep in the deserts, camel are almost the only source of transportation, food,
clothing, the shelter….they drink camel’s milk and also make cheese from it.
The milk is so rich and thick that it forms hard lumps in tea or coffee’
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susceptible of analogous meaning are coupled together, they are understood to
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be used in their cognate sense. They take their colour from each other, that is,
the more general is restricted to a sense analogous to a less general.
.
Associated words take their meaning from one another under the doctrine of
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noscitur a sociis, the philosophy of which is that the meaning of the doubtful
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word may be ascertained by reference to the meaning of words associated with
it.
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State of Assam v Ranga Mohammad, AIR 1967 SC
The respondent filed a petition for the issue of a quo warranto
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questioning the right of the appellant to transfer and post a District Judge.
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Art. 233(10) provides “ Appointment of persons to be, and the posting
and promotion of, District Judges in any state shall be made by the Governor of
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the state in consultation with the High Court exercising jurisdiction in relation
to such state.
In construing the word ‘posting’ as it occurs in Art. 233(1) of the constitution in
association with words ‘appointment’ and ‘promotion’ the Supreme Court held
that the word ‘Posting’ took its colour from the associated words and meant
“the assignment of an appointee or promote to a position in the cadre” and not
his transfer from one station to another.
In Rainbow Steels Ltd v. Commissioner of Sales Tax, Uttar Pradesh, AIR 1981
SC
The State Government as per a notification taxed “old, discarded, unserviceable
or obsolete machinery, stores or vehicles etc. at the rate of five percent.
The appellant agrued and the court agreed that invoking the principle of
Noscitur a Sociis the expression ‘old’ which is more general should be
restricted to a sense analogous to that of the less general expressions, namely
“discarded, unserviceable or obsolete” and read in this manner the sale of the
power plant could not be regarded as sale of “old” machinery falling within the
Entry.
Pradeep Agarbatti, Ludhiana v. State of Punjab and Ors, (1997)8 SCC 511
The Court held that upon application of the doctrine it can be inferred that when
words are grouped together, each word in the entry draws colour from the other
words therein.
As a result the court concluded that Entry 16 of the Punjab General Sales Tax
Act, 1948 could not be read to tax agarbatti, dhoop as taxable items were to be
read in context of ‘perfumery’ i.e. something which can be used on the human
body.
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Difference between Ejusdem Generis and Noscitur A Sociis
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Noscitur a sociis applies to cases where analogous words are put together but
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Ejusdem applies when the specific words follow the general words.
Associated words take their meaning from one another under the doctrine of
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Noscitur a Sociis, the philosophy of which is that the meaning of a doubtful
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word may be ascertained by reference to the meaning of words associated with
it, such doctrine is broader than the maxim Ejusdem Generis.
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8. EJUSDEM GENERIS
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other purpose….” Was involved.
The High Court was of the view that “any other” should be read ejusdem
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generis with the purpose of the state that the accommodation for a member of
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the foreign consulate staff is “a purpose of the Union” and thus the state
government was not entitled to requisition.
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In construing the words for the purpose of a state or any other public purpose
in section 6(4)(a) of the Bombay land requisition act 1948 the SC declined to
apply the rule of ejesdem generis for the construction of the word or any other
public purpose and pointed out by referring to the legislative entries in the list
that state purpose and any other purpose were in themselves two distinct
categories.
Evans v. Cross,
The interpretation of the words ‘other devices’ in section 48(9) of the Road
Traffic Act, 1930, which happened to define a ‘traffic sign’ to include “all
signals, warning posts, signs or other devices”.
Applying the rule of ejusdem generis the court held that a painted white line
on a road could not be called traffic sign.
M/S Siddeshwari Cotton Mills Pvt. Ltd. V. Union of India, AIR 1989 SC.
The Supreme Court observed that the expressions ‘bleaching, mercerizing,
dyeing, printing, water proofing, rubberizing, shrink-proofing, organdie
processing, which precede the expression’ or any other processes’ in section
2(f)(v) of the Centre Excises and Salt Act, 1944 all envisage processes which
import a change of lasting character to the fabric.
The term ‘any other process’ must share one of these incidents, thus the
principle of ejusdem generis was used for interpreting the context of the general
words in context of the enumerated words which followed.
The rule of interpretation generally known as ejusdem generis rule reflects an
attempt to reconcile incompatibility between the specific and general words, in
view of the rules of interpretation, that all words in a statute are given effect if
possible, statute should be construed as a whole and no words in a statute are
presumed to be superfluous.
In construing the definition of ‘workmen’ in the Industrial Courts Act, 1919,
which reads: ‘means any person who entered into or works under a contract
m
with an employer whether the contract be by way of manual labour, clerical
work or otherwise’
c o
Viscount Simon, L.C. said: ‘the use of words or. otherwise does not bring into
play the ejusdem generis principle for manual a labour and clerical work’ do not
m
belong to a single limited genus.( N.A. L.G. O V.Bolton Corporation, 1943 AC)
a
Ejusdem Generis: when not to invoke
The doctrine ejusdem generis n must be applied with care and caution. It said that
y should not be invoked when:
the rule of ejusdem generis
dof the legislature is clear;
a.
b. t
Where it wouldu
Where the intention
result in disregarding the plain language of the statute;
c.
d.
S
Where mention of a single species does not constitute a genus.
Where a perusal of the statute as a whole indicates that the legislature intended
the general words to go beyond the class specially designated;
e. Where the specific things enumerated have no common characteristic and differ
greatly from one another;
f. If the preceding words do not constitute mere specifications of a genus but
constitute description of a complete genus, the rule has no application.
g. Where the particular and specific words exhaust the whole genus.
yn
construed.
The executive cannot levy tax. It, for the said purpose, therefore, cannot even
d
take recourse to the process of interpretation of statute
tu
General Principles of strict construction
I. Taxation only by Express words
S
Lord Cairns states that “If the person sought to be taxed comes within the letter
of the law he must be taxed, however great the hardship may appear to the
judicial mind to be.
The subject is not to be taxed unless the words of the taxing statute
unambiguously impose the tax on him.
Imposition of taxes is like imposition of penalty so there is no room for any
kind of intendment or presumption and the clearly stated words are to be
interpreted by looking into three aspects; subject of tax, person to be taxed and
rate of tax.”
The Supreme Court- Bhagwati, J. stated the principle as follows: “In construing
fiscal statutes and in determining the liability of a subject to tax one must have
regard to the strict letter of law. If the revenue satisfies the court that the case
falls strictly within the provisions of the law, the subject can be taxed. If, on the
other hand, the case is not covered within the four corners of the provisions of
the taxing statute, no tax can be imposed by inference or by analogy or by
trying to probe into the intentions of the legislature and by considering what
was the substance of the matter”.
In interpreting a taxing statute, equitable consideration are entirely out of place.
Nor can taxing statute be interpreted on any presumptions or assumptions.
Before taxing any person it must be shown that he falls within the ambit of the
charging section by clear words used in the section.
If the words used are ambiguous and reasonably open to two interpretations
benefit of interpretation is given to the subject.
It is well settled that in the field of taxation, hardship or equity has no role to
play in determining eligibility to tax and it is for the legislature to determine the
same.
In a taxing provision if there are two possible constructions of the words of the
statute then effect is to be given to the one that favours the citizen and not the
one that imposes a burden on him.
Taxation only by express words: The rule is that the intention to impose a
taxing statute must be shown by clear and unambiguous language
II. Literal construction of words used: it is well settled that words in a taxing
statute should be construed in the same way in which they are understood in
ordinary parlance in the area in which the law is in force. The question whether
wider or narrower meaning should be given, if words are capable of both,
depends upon the context and background.
m
It is no doubt true that in construing fiscal statutes and in determining the
o
liability of a subject to tax one must have regard to the strict letter of the law
c
.
and not merely to the spirit of the state or the substance of the law.
a
In Associated Cements Co Ltd v. State of MP, AIR 2004 SC
Question was whether the production of ‘refractory cement’ was liable to
imposition of export tax. m
a
The main issue was whether refractory cement fell within the Entry “all types of
yn
cement’ was liable to export tax.
Expatiating on the question, the court pointed out that cement was exclusively
d
used as a building material and as a commodity of everyday use, whereas the
tu
main property of ‘refractory cement’ was that it could withstand very high
temperatures, corrosion and abrasion. Anyone buying cement for building
S
would under no circumstances buy refractory cement. As the word ‘cement’ had
not been defined, it had to be understood as used in common parlance. Hence,
refractory cement was held to not be liable to the imposition of export tax.
a
themselves with the policy behind the provision or even with its impact.”
yn
Case laws
The supreme court held that in cases where the literal interpretation of a fiscal
d
legislation leads to an absurd meaning, the court have power to derive the
tu
intention of the legislation to reach a relatively accurate result.(J.K Steel Ltd v.
S
Union of India, AIR 1970 SC
The Supreme Court held that with respect to liability to pay interest on delayed
payment of tax has to be mentioned in the statute that means there should be a
substantive provision in the statute to that effect. (Indian Carbon Ltd v. State of
Assam, AIR 1997 SC)
Exception provisions
Benefit of exemption is to be considered strictly.
If the tax-payer is within the plain terms of the exemption it cannot be denied its
benefit by calling in aid any supposed intention of the exempting authority.
Exemption notification cannot be unduly stretched to produce unintended
results in derogation of the plain language employed therein.
Taxation laws are not in the nature of penal laws; they are substantially
remedial in their character and are intended to prevent fraud, suppress public
wrong and promote the public good.
Provision of exemption from tax in a fiscal statute is to be strictly construed.
Evasion of Statutes
It is not permissible to evade an act of parliament by resorting to a fraudulent
device.
m
Constitution of India - Article 225—Representation of People Act, 1951—
c o
Section 81—Patna High Court Rules—Rules 6 and 7—Election petition—
Period of limitation—45 days from date of election—Last date of limitation
.
being 28.8.2003—Word “day” in Section 81 begins at mid night and covers
a
period of 24 hours thereafter—Thus, petition could have been presented upto
m
mid night falling between 27th and 28th day of August, 2003—High Court
a
Rules framed under Article 225—Relate to procedural matters—And cannot
yn
make nor curtail any substantive law—At time of presentation, Judge may not
be sitting in open court—But that does not mean that he cannot receive election
d
petition—Judge ordinarily to sit in open court upto 4.15 p.m. of day as per
tu
rules—But that time is not end of day—Election petition handed over to
Election Judge on last day of limitation at 4.25 p.m. in his chambers—Judge
S
neither receiving presentation nor making any other order directing official of
Registry to receive same—Hence, petition presented next day in open court—
Presentation to be deemed to be within limitation and valid—Impugned
judgment of High Court set aside—Petition held to have been filed within
period of limitation. (Pl refer original case)
m
The Supreme Court had to interpret Uttar Pradesh Bhoodan Yagna Act, 1953,
a
to implement the Bhoodan movement, which aimed at distribution of land to
yn
landless labourers who were versed in agriculture and who had no other means
of subsistence, Section 14 which employed the word “landless labour”. The
d
court in paragraph 12 of its judgment referred to a vedic shoka to throw light on
tu
the term under question. By making a reference to a Hindu Text, it was able to
understand that “landless labour” was used to refer to landless agricultural
S
labor, who were often considered as lower castes, and were thereby refused the
right to hold property, even where they had rightful title to such lands.
Supreme Court observed that “In this country, we have a heritage of rich
literature; it is interesting to note that literature of interpretation also is very well
known. The principles of interpretation have been enunciated in various shlokas
which have been known for hundreds of years.
Held: It was held that the expression ‘landless persons’ in section 14, which
made provision for grant of land to landless persons, was limited to landless
labourers as described above and did not include a landless businessman
residing in a city.
The Mimansa rule of interpretation have by and large not been engaged with by
judges of the High Judiciary. One exception to this trend is justice Markandey
Katju, who has had reliance on these principles repeatedly, during his tenure as
Supreme Court judges. For instance in U.P. State Agro Industrial Corporation
Ltd. V. Kisan Upbhokta Parisahad and Ors AIR 2008 SC
Justice Katju observed “ it is deeply regrettable that in our courts of law,
lawyers quote Maxwell and Craines but nobody refers to the Mimansa
Principles of Interpretation. Today our so called educated people are largely
ignorant about the great intellectual achievements of our ancestors and the
intellectual treasury they have bequeathed us”.
Observation on Mimansa rule:
Judges often view the Mimansa rules of interpretation as a viable alternate and
on occasion a substitute to the traditional rule of statutory interpretation as
contained in Maxwell and Craines.
The content and purpose of the Mimansa as well as Maxwellian rules of
interpretation are substantially similar. Both systems of interpretation treat the
plain meaning of the word with the greatest importance, and only look to
external and subsidiary aids of interpretation when there is an ambiguity and
inconsistency in the plain meaning of the word employed. In this sense, there is
no conflict between or within the two systems of interpretation.
Secondly, wholly substituting the Maxwell rules with those of Mimansa would
not be prudent for a number of considerations. For a proper understanding as
well as application of the Mimansa rules, it is crucial not ony to have an in-
depth knowledge of Sanskrit but also to be aware of the dynamics of Vedic
traditions and social customs, which cannot reasonably expected of all judges.
Additionally, for an effective application of the Mimansa rules, the vedic rules,
which are often laid out in open ended and mythical ways, must be reduced in
clear and precise rules of interpretation.
m
c o
.
11. GOLDEN RULE OF CONSTRUCTION
a
m
a
[Modification of the principle of grammatical interpretation]
yn
The fundamental rule of statutory interpretation is that the words in a statute are
to be given their natural and ordinary meaning, however, if such a construction
d
leads to any absurdity, hardship, inconvenience, injustice, repugnancy,
tu
inconsistency or defeats the purpose for which the statute is enacted, then
judiciary may modify the language of the statute in order to give a construction
S
which avoids such consequences- This is known as the golden rule of
construction.
Held:
The court applied the golden rule and held that the word 'marry' should be
interpreted as 'to go through a marriage ceremony'. The defendant's conviction
was upheld.
Central India Spinning, Weaving and Manufacturing Co. Ltd., Empress Mills,
Nagapur v. Municipal Committee, Wardha, AIR 1958 SC 341
Section 66(1) of the Central Provinces and Berar Municipalities Act, 1922
Which authorized imposition of ‘a terminal tax on goods or animals imported
into or exported from the limits of a municipality’
Question before the Supreme Court was whether the said clause
empowered the municipality to levy a tax on goods in transit?
High Court had adopted the derivative meaning of words import and
export, i.e., to bring in and to carry away and had therefore held that the
municipality had the power to levy terminal tax on goods in transit.
Held: Supreme Court rejected the High Court decision and pointed out that the
words import and export in their ordinary commercial sense do not refer to
goods in transit; and in selecting the commercial sense of the words in
preference to derivative sense, m
Kapur, J., observed:
c o
.
“The effect of the construction of ‘import’ or ‘export’ in the manner insisted
a
upon by the respondent (municipal committee) would make rail borne goods
passing through a railway station within the limits of a municipality liable to the
m
imposition of the tax on their arrival at the railway station or departure there
a
from or both which would not lead to inconvenience but confusion, and would
yn
also result in inordinate delays and unbearable burden on trade both inter-state
and intra-state. It is hardly likely that was the intention of the legislature. Such
d
an interpretation would lead to absurdity which has according to rule of
tu
interpretation to be avoided”
S
Avoiding Hardship or Inconvenience
If a literal interpretation of a statute results in hardship to one of the parties,
which was presumably not intended by the legislature, then such construction
should be given which avoids such hardship or inconvenience.
Saibaba v. Bar Council of India, AIR 2003 SC
The Supreme Court was called upon to determine the commencement of
the period of limitation for filing a review petition under the Advocate Act,
1961
The held that the expression ‘date of that order’ as occurred in S. 48AA
should be construed as date of communication or knowledge (actual or
constructive) of the order to the petitioner.
State of Punjab v. Quarer Jehan Begum, AIR 1963 SC
Property Acquisition- Sec 18 of Land Acquisition Act, 1894- respondents
were evacuees they were owner of land. Which acquired by appellant
respondents were not notified about acquisition and were not present at the time
of award no notice issued to them before acquisitions.
Respondent brought matter before collector and collector referred their
application to the civil court for determining the compensation. The civil court
came to the conclusion that application was barred by limitation.
According to Section 18 such reference would be made within 6 months from
the date of award.
Supreme Court held- holding that the application was within time, unless
an award of compensation comes to the knowledge, either actually or
constructively, how can a reference, if any, is made against the award.
Therefore, justice and fair play required that the counting of the limitation
period begins from the date of knowledge of award.
Concluding observation
• Consideration of hardship, injustice or absurdity as avoiding a particular
construction is a rule which must be applied with great care.
• Inconvenience necessitating a departure from the ordinary sense of the words
should not only be great but should also be an “absurd inconvenience”.
• Individual caes of hardship or injustice have no bearing for rejecting the natural
construction and it is only when the natural construction leads to some general
hardship or injustice.
m
The laws enacted for the general advantage do result in individual hardship; For
o
exs: Law of Limitation, Registration, although enacted for the public benefit,
c
.
may work injustice in particular cases but that is hardly any reason to depart
from the normal rule to relieve the supposed hardship or injustice in such case.
a
m
Case law references
a
yn
1. Lee v. Knappa (1967) 2 Q.B 442.
2. Bhatia International v Bulk Trading SA (2002) 37 S.C.L. 434 (SC) (Sup Ct
(Ind))
d
tu
3. Ashok Paper Mill (Assam) Limited, Gauhati and another v North Eastern
Chemicals, Industries (P) Limited, Gauhati and another Gauhati High Court
4.
5.
S
21 July 2011
Central India Spinning; weaving and manufacturing Co Ltd, Nagpur v.
Minicipal Committee, Wardha AIR 1956
yn
Lord Watson indicated the nature and limits of the canon: ‘intention of the
legislature’, which is a common but very slippery phrase.
d
u
Testimony of Draftsman Irrelevant
The persontwho drafted the enactment is also not competent to declare as to the
Sof the legislature which passed it.
intention
Case laws
In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum & others, AIR
1997 SC
It was held in determining the legislative intent, the court is required to consider
three factors-
a. Context and the object of the statute
b. The nature and precise scope of the relevant provisions and
c. Damage suffered
yn
Where the object or meaning of an enactment is not clear, the preamble may be
resorted to explain it.
Case laws d
tu
Arnit Das v. State of Bihar (2000) 5 SCC
S
“The preamble suggests what the act was intended to deal with. If the language
used by parliament is ambiguous the court is permitted to look into the
preamble for construing the provisions of an act. The preamble is a key to
unlock the legislative intent. If the words employed in an enactment may spell a
doubt as to their meaning it would be useful to so interpret the enactment as to
harmonies it with the object which the legislature had in its view”
Burrakur Coal Co. v. Union of India, AIR 1961 SC
The Coal Bearing Areas (Acquisition and Development) Act, 1957
Preamble provides that….. ‘An act to establish in the economic interest of India
greater public control over the coal mining industry and its development by
providing for the acquisition by the state of unworked land contain coal
deposits……’
Section 4(1) provides: Whenever it appears to the Central Government that
coal is likely to be obtained from land in any locality, it may be notification in
the official gazette, give notice of its intention to prospect for coal therein.
Section 5(b) on issue of such notification, the mining lease, granted to any
person, in that land would cease.
Question:
Whether this act applies only to virgin lands and not those lands which are
being worked in the past-
Word unwarked land is used in the preamble
Held: Supreme Court applied the plain language used in section 4.
Court observed:
• Where the language of an act is clear, the preamble must be disregarded.
• Where object or meaning of an enactment is not clear, the preamble may be
resorted to explain it.
m
resolve interpretational doubt arising out of the defective drafting of section 23”
Provision must be interpreted in the light of Section 23(4) as well as preamble.
c o
Preamble to the constitution
.
a
In re, Berubari Union and Exchange of enclaves-
It was held that preamble to the constitution was not part of the constitution
m
Kesavanada Bharati v. State of Keara AIR 1973 SCC
a
It was held that the preamble is a part of the constitution
yn
Preamble embodies and expresses the hopes and aspirations of the people.
d
IV. Headings
u
Prefixed tota section and prefixed to a group of sections.
Acc S
to Maxwell ‘The headings prefixed to sections or sets of sections in some
modern statutes are regarded as preambles to those sections. They cannot
control the plain words of the statute, but they may explain ambiguous words.’
If the words of the section of an act admit of a reasonable doubt, the title or
heading of the chapter or group of sections may be looked for the interpreting
section.
The heading of a chapter may be referred to in order to determine the sense of
any doubtful expression in a section ranged under it. But it cannot control
unambiguous expression.
Chapter headings cannot be treated as rigid compartments.
Headings or sub-headings cannot control, restrict or extend this scope other
sections when the language is free from ambiguity.
m
15. INTERNAL AID TO INTERPRETATION-II
c o
.
V. Marginal notes a
m
The notes found printed at the side of the sections in an act which purports to
a
summarize the effect of the sections.
In the older statutes marginal notes were not inserted by the legislature and
yn
hence were not part of the statute and could not be referred to for the purpose of
d
construing the statute.
If they are also enacted by the legislature they can be referred to for the purpose
tu
of construction.
S
In the case of the Indian Constitution, the marginal notes were enacted by the
constitutional Assembly and hence they may be referred to for interpreting the
articles of the constitution.
If the words used in the enactment are clear and unambiguous, the marginal
note cannot control the meaning, but in case of ambiguity or doubt, the marginal
note may be referred to.
N.C Dhoundial v. Union of India (2004)2 SCC579
‘It is a settled rule of interpretation that the section heading or marginal note can
be relied upon to clear any doubt or ambiguity in the interpretation of the
provision and to discern the legislative intent’
The said notes are not considered as part of the act.
Bengal Immunity Company v. State of Bihar AIR 1955 SC 661
The marginal note to Article 286 of the constitution is : Restrictions as to
imposition of tax on the sale or purchase of goods.
SC held by a majority that marginal note to Article 286 of the constitution was a
part of the constitution and therefore, it could be relied on to furnish a clue to
the purpose and meaning of that article.
Hints on Drafting
Marginal notes should be framed with great care. Their object is to give a
consicise inndication, not a summary, of the contents of the sections, and to
enable a reader to glance quickly through them relying upon their accuracy.
In SP Gupta v. Union of India AIR 1992 SC
“Whether the marginal notes would be useful to interpret the provisions and if
so what extent dpend upon the circumstances of each case. No settled principles
applicable tto all cases can be laid down in this fluctuating state of the law as to
the degree of importance to be attached to a marginal note in a state. If the
relevant provisions in the body of the state firmly point towards a construction
which would conflict with the marginal note, the marginal note has to yield. If
there is any ambigouity in the meaning of the provisions in the body of the
statutes, the marginal note may be looed into as an aid to construction.
In UK – Marginal nots can be referred to for the purpose of interpretation if
they can be regarded as inserted or asented to, by the legislature.
Where the marginal note is insert by or under the authority of the legislature, it
forms part of the Act and as such like the heading of chapter or the headings of
groups of sections can properly be regarded as giving a contemporanea
exposition of the meaning of a section, when the language of the section is
obscure or ambiguous.
If the concerned provision is amended, the marginal note would not control the
meaning of the substantive provisions so as to nullify the amendment.
VI. Definition or interpretation clause m
o
The definition must ordinarily determine the application of the word or phrase
c
.
defined; but the definition must itself be interpreted first before it is applied.
a
A court should not lay down a rigid definition and crystallize the law, when the
legislature, in its wisdom has not done so.
m
When a word or phrase is defined as having a particular meaning in an
a
enactment, it is that meaning and that meaning alone which must be given to it
yn
in interpreting a section of the act, unless there be anything repugnant in the
context.
d
Purpose of a definition clause in a statute is two fold:
i.
ii. tu
To provide a key to the proper interpretation of the enactments,
To shorten in the language of the enacting part of the statute to avoid repetition
S
of the same words contained in the definition.
Definition is not to be read in isolation, it must be read in the context of the
phrase which would define it
Definitions, Interpretation Clauses and the General Clauses Act
Definition do not take away the ordinary and natural meaning of the words
used.
The word ‘includes’ is generally used in the interpretation clause to enlarge the
meaning of words or phrases occurring in the body of the statute.
Restrictive definition
‘Means’ such and such, the definition is prima facie restrictive and exhaustive
Word defined is declared to ‘include’ such and such, the definition is exhaustive
Words is defined ‘to apply to and include’ the definition is understood as
extensive
Carter v. Bradbeer, (1975) 3 All ER
Section 201(1) of the Licensing Act, 1964
‘bar’ is defined to include a place which is exclusively or mainly used for the
sale and consumption of intoxicating liquor.
Whether counters used for serving liquor were held to be bar within the section.
House of Lord: use of the word ‘include’ showed that the definition did not
exclude what would ordinarily and in common parlance be spoken of as a bar.
Therefore, it includes aforesaid activities.
State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.
While dealing with the definition of ‘Industry’ Section 2(j) in the Industrial
Dispute Act, 1947
Gajendragadkar, J., observed: ‘It is obvious that the words used in an inclusive
definition denote extensive and cannot be treated as restrictive in any sense.
Where we are dealing with an inclusive definition, it is inappropriate to put a
restrictive interpretation upon terms of wider denotation’. Therefore, Hospital
was held to be industry.
Section 2(o) of the Consumer Protection Act, 1986
Which is an inclusive definition of ‘service’ was held to include ‘housing
construction’.
Definition in the form ‘means and include’ will consider as exhaustive
EX: Definition of tobacco in item 4 of the first schedule to the Centre Excise
and Salt Act, 1944.
It reads: ‘Tobacco means any form of tobacco whether cured or uncured and
m
whether manufactured or not and includes the leaf stalks and stems of the
tobacco plant’-
c o
.
Construing this definition the Supreme Court held that the definition is
a
exhaustive and tobacco seeds, which are not mentioned in the inclusive part, do
not fall within the definition. (Mahalakshmi Oil Mills v. State of Andhra
Pradesh, AIR 1989 SC335) m
a
A definition section may also be worked in the form ‘is deemed to include’
yn
which again is an inclusive or extensive definition and such a form is used to
bring in by a legal fiction something within the word defined which according
d
to its ordinary meaning sis not included within it’
tu
Definition in other Acts
It is always unsatisfactory and genenarlly unsafe to seek the meaning of words
S
used in an Act of Parliament in the definition clause of other statutes dealing
with matter more or less cognate, even when enacted by the same legislature.
Where a defintion is given in an act, it should be confined as a general rule to
interpret the word defined for that act only and not explain the meaning of the
word in other statute.
Use of words ‘includes’, ‘shall Include’ or ‘shall Mean and Inculde’
Craies opines
“Where an interpretation clause defines a word to mean a particular thing, the
defintion is explanatory and prima facie restrictive and where an interpretation
clause defines a term to include something, the definition is extensive. An
explanatory and restrictive definition confines the meaning of the word defined
to what is stated in the interpretation clause. The reason is that wherever the
word so defined is used in the particular statute in which that interpretion clause
occurs, it will bear only that meaning unless where as it usually provided, the
subject or context otherwise requires, an extensive definition expands or
extends the meaning of the word defined into include within it what would
otherwise not have been comprehended in it when the word defined is used in
its ordinary sense”
VI. Proviso
A proviso follows the enacting part of a section and is in a way
independent of it. Normally, it does not enlarge the section, and in most
cases, it cuts down or makes an exception from the ambit of the main
provision.
A proviso is added to an enactment to qualify or create an exception to
what is in the enactment.
It has no independent existence of its own, it is dependent on the main
enactment. Further proviso is not normally construed as nullifying the
enactment or as taking away completely a right conferred by the
enactment.
If the proviso is unlawful as ultra vires, it can be served from the rest of
the enactment,
Proviso may serve four different purposes: (SC in S. Sundaram Pillai v.
V.R Pattabiraman AIR 1989 SC) such as;
i. Qualify or exception certain provisions from main enactment. m
ii. o
It may entirely change the very concept of the enactment by insisting on certain
c
.
mandatory conditions to be fulfilled in order to make the enactment workable.
iii.
a
It may be so embedded in the act itself as to become an integral part of the
enactment and thus acquire the tenor and colour of the substantive enactment
itself. m
iv. a
It may be used merely to act as an optional addendum to the enactment with the
yn
sole object of explaining the real intendment of the statutory provisions.
Where the main provision is clear, its effect cannot be cut down by the proviso.
d
Proviso does not travel beyond the provision to which it is a proviso.
tu
Where the section is doubtful, a proviso may be used as a guide to its
interpretation.
S
The proviso is subordinate to the main section.
Where a proviso is repugnant to the enacting part, the proviso will not prevail
over the absolute terms of a later Act directed to be read as supplemental to the
earlier one.
“It is rule of law that a proviso should receive a strict construction.
When the language of the main enactment is clear and unambiguous, a proviso
can have no repercussion on the interpretation of the main enactment.
VIII. Illustration
Illustration appended to a section form part of the statute. It offer relevant and
valuable indications as to meaning and object of the provision and are helpful in
the working and application of the provision.
Illustrations do not in legal strictness form part of the Acts, and are not
absolutely binding on the courts.
The illustration cannot have the effect of modifying the language of the section
and they cannot either curtain or expand the ambit of the section which alone
forms the enactment. m
c o
If there by any conflict between the illustration and the main enactment, the
illustration must give way to the latter.
.
IX.Explanation a
m
Explanation is appended to a section to explain the meaning of words contained
a
in the section. It becomes a part and parcel of the enactment.
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Explanation does not enlarge the scope of the original section which it explains,
but only makes the meaning clear beyond dispute.
d
In S. Sundaram Pillai v. V.R Pattaliraman AIR 1985 SCC.
a. tu
Supreme Court explained the objects of an Explanation provision as follow:
To explain the meaning and intendment of the act itself.
b. S
Where there is any obscurity or vagueness in the main enactment, to clarify the
same so as to make it consistent with the dominant object which it seems to
subserve.
c. To provide an additional support to the dominant object of the act in order to
make it meaningful and purposeful.
d. An explanation cannot in any way interfere with or change the enactment or
any part thereof but where some gap is left which is relevant for the purpose of
the explanation, in order to suppress the mischief and advance the object of the
act it can help or assist the court in interpreting the purpose and intendment of
the enactment; and
e. It cannot, however, take away a statutory right with which any person under a
statute has been clothed or set at naught the working of an act by becoming a
hindrance in the interpretation of the same.
Explanation to a section is not a substantive provision by itself. It is entitle to
explain the meaning of the word contained in the section or clarify certain
ambiguities or clear them up. It becomes a part and parcel of the enactment. Its
meaning must depend upon its terms.
Explanation normally should be so read as to harmonize with and to clear up
any ambiguity in the main section. It should not be so construed as to alter the
ambit of the section.
X.Schedules
Schedule is part of the statute itself and may be looked into by the courts for the
purpose of interpreting the main body of the statute.
While interpreting the schedules help may always be taken from the main body
of the act to find out the true spirit of the act.
In case of conflict between the body of the act and the schedule the former will
prevail.
Schedules appended to statues form part of the statute. They are added towards
the end and their use is made to avoid numbering the sections in the statute with
matters of excessive details
a
The general principle is that, except as to transactions past and closed, an Act
or enactment which is repealed is to be treated thereafter as if it had never
m
existed. However, the operation of the principle is subject to any saving made,
a
expressly or by implication, by the repealing enactment, and in most cases it is
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subject also the general statutory provisions as to the effect of repeal”.
Right of repeal inherent in legislation
d
Power of a legislative body to repeal a law is co-extensive with its power to
tu
enact such a law. Just as the legislature has the power to enact laws, similarly it
has the power to repeal them.
S
I. Perpetual and Temporary statute
A Statute becomes perpetual when no time is fixed for its
duration, and such a statute remains in force until it is repealed whether by
express provision or by implication.
A statute is temporary when its duration is for a specified time
and its expires on the expiry of the specified time unless it is repealed earlier.
If the purpose of a statute is temporary the statute cannot be regarded as
temporary when no fixed period is specified for its duration.
After a temporary statute expires, it cannot be made effective by merely
amending the same. Revival of the expired statute can be done only by re-
enacting a statute in similar terms or by enacting a statute expressly saying that
the expired Act is herewith revived.
II. Effect of expiry of temporary statute
a. Legal proceedings under expired statute.
A question often arises whether the legal proceedings under the expired statutes
can be initiated after the act has expired?
If such a saving provision is not present the normal rule is that proceedings
taken against a person under a temporary statute ipso facto terminate as soon as
the statute expires.
In the absence of a saving provision when a statute expires, a person cannot be
prosecuted and convicted for an offence against the Act after its expiration in
the absence of saving clause.
Even in the absence of saving clause, the Supreme Court in Bhupendra Kumar
case held, upon construing the nature of rights and liabilities devised in the
temporary act now expired, that a convict imprisoned for committing offences
described under temporary act cannot be released from prison upon expiry of
such act, unless his imprisonment term has also ended. Though a person
preventively detained under temporary statute is released upon expiry of such
law.
b. Notifications, Order, Rules etc made under temporary statute (Section 24,
General Cluses Act)
The normal rule is that when a temporary Act expires, any notification,
appointment, order, scheme, rule, bye-laws made under the statute will also
m
come to an end with the expiry of the Act unless so saved expressly by the
repealing act.
c o
.
Where the ordinance Act is repealed and substituted by fresh legislation, the
a
actions taken under ordinance are deemed to be executed under corresponding
provisions of fresh legislation.
c. m
Expiry does not make statute dead for all purposes
a
State of Orissa v. Bhupendra Kumar, AIR 1962 SC
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Held: A person who has been prosecuted and sentenced during the continuance
of a temporary Act for violating its provisions cannot be released before he
d
serves out his sentence, even if the temporary Act expires before the expiry of
tu
full period of the sentence
Ordinances promulgated by Executive heads in exercise of legislative power
S
provided under Article 123 and 213 have same effect as acts passed by
legislature, and thus, qualify as temporary statutes with maximum period of
operation as six weeks.
Where state makes any law in relation to proclamation of Emergency after
Presidential order suspending enforcement of Fundamental Right (other than
Article 20 and 21) has been promulgated under Article 359(1), the law ceases to
operate after expiry of emergency. However, anything done under such law
prior to its cessation continues unabated.
III. Repeal may be express or implied
Express Repeal
Repeal of a statute may be express or by necessary implication. Express repeal
of a statute is usually made by stating that the earlier statute or a particular
provision therein is thereby repealed.
Ex. ‘is or are hereby repealed’, shall cease to have effect’ and ‘shall be omitted’,
etc
‘All provisions inconsistent with this act’ are hereby repealed. It is considered
as substitutes for the uncertainty of the general law.
Implied Repeal
The doctrine of implied repeal is based on the theory that the legislature is
presumed to know the existing law, did not intend to create any confusion by
retaining conflicting provisions.
Where there is no direct reference, the matter will have to be determined by
taking into account the exact meaning and scope of the general words contained
in the repealing clause and the principles of law which govern the interpretation
of the same.
There is presumption against a repeal by implication; and the reason of this rule
is based on the theory that the legislature while enacting a law has a complete
knowledge of the existing laws on the same subject matter, and therefore, when
it does not provide a repealing provision, the intention is clear not to repeal the
exiting legislation. However, a repeal is inferred by necessary implication when
the provisions of the later act are so inconsistent with or repugnant to be
provisions of the earlier Act and that the two cannot stand together.
When there is irreconcilable conflict between an old law and a new law. In a
situation like this it is to be held the new law impliedly repeals the old law.
Court also will determine-
a. Whether the new law is intended as a substituted for the old; or
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b. Whether the new law is irreconcilably inconsistent with the old, so that the
former is thereby terminated.
c o
Municipal Council, Palai v. T.J Joseph, AIR 1963.
a SC
The Supreme Court has indicated that the test for determining repugnancy under
Art. 254 of the constitution may bem applied for solving a question of implied
repeal and that it should be seen:a
a.
b. Whether the legislaturey
nbetween the two provisions;
Whether there is direct conflict
intended to lay down an exhaustive code in respect of
the subject-matterd replacing the earlier law;
Whether the u
c.
t of implied repeal is based on the theory that the legislature, which
The doctrine
two laws occupy the same field.
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is presumed to know the existing law, did not intend to create any confusion by
retaining conflicting provisions.
According to Maxwell rule of implied repeal rests has been stated in Maxwell
on ‘Interpretation of Statutes’ (Twelfth Edition) at page 193 thus:
“If, however, the provisions of a later enactment are so inconsistent with or
repugnant to the provisions of an earlier one that the two cannot stand together
the earlier is abrogated by the latter”.
Prior general law and later particular law
Implied repeal is subject to countervailing principle Generalia specialibus non
derogate, i. e a prior special enactment is usually not repealed impliedly by later
general Act.
Variation of the punishment, penalty (including rate of tax) or procedure clause,
without any change in essential ingredients of offence, in later law impliedly
repeals the former law.
There is no implied repeal when two different enactments confer supplementary
power such as execution, clarification, rule making power at same or distinct
levels, bestow similar powers at different levels; or, devise alternate remedial,
dispute resolution or regulatory mechanism for achieving same objective
without contravening earlier enactment.
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if the rights accrued under the previous enactment are saved, it would seem to
be consequential that the old procedure is saved as well unless the new act
d
makes the new procedure applicable to old right.
V.
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Subordinate legislation under repealed statute.
Subordinate legislation made under a statute ceases to have effect after repeal of
S
the statute. This result can be avoided by insertion of saving clauses proving to
the contrary.
When a statute is repealed and re-enacted, section 24 of the General Clause Act,
1897, provides for continuance of any appointment, notification, order, scheme,
rule, form or bye-law made or issued under the repealed statute in so far as it is
not inconsistent with provisions re-enacted.
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narrow and technical one.
Sudhoo v. Haji Lal Mohd. Biri Works, AIR 1990 SC 1971, P 1973
d
Interpretation of Section 31(2)(a) of the Beedi and Cigar Workers
tu
(Conditions of Employment) Act, 1966- provides that “ the employees
discharged, dismissed or retrenched may appeal” to the prescribed authority.
S
Held: Construed liberally and held that there need be no written order of
termination to enable the employee to appeal and that an employee who has
been terminated by stopping him to enter the place of works could appeal to the
prescribed authority.
B. Shah v. Presiding officer, Labour court, AIR 1978 SC 12.
Section 5 of the Maternity Benefit Act, 1961 provides that employer
liable for the payment of maternity benefit to a woman worker at the rate of the
average daily wage for ‘the period of her actual absence immediately preceding
and including the day of her delivery and for the six weeks immediately
following that day’.
Whether in calculating the maternity benefit for the period covered by
section 5 Sundays being wageless holiday should be excluded?
Held: Sunday must also be included the court applied the beneficial rule of
construction infavour of the woman worker not only to subsist but also to make
up her dissipated energy, nurse her child, preserve her efficiency as a worker
and maintain the level of her previous efficiency and output.
U.Unichoyi v. State of Kerala AIR 1962 SC
Minimum Wages Act, 1948 empowers the state government to fix
minimum wages in an industry. Challenged on the ground of Art. 19(1) (a)
Held: Beneficial legislation and should be construed in favour of the worker.
Manohar lal v. State of Punjab, AIR 1961 SC
Sec. 7 of the Punjab Trade Employees Act, 1949 directing that shops and
establishments to which the act applied shall remain closed one day in a week.
Held: It was held not violate Art. 19(1)(g) of the constitution as it was
reasonable restricting on the fundamental right because it ensures health and
efficiency of the worker.
On similar ground, hours of employment of employee and opening and closing
hours of shops or establishments cannot be held as violative of Fundamental
Right to trade and business under Art. 19(1) (g).
Mandgila v. Suganchand, AIR 1965 SC 101
A suit for eviction of tenant was filled under the Madhya Pradesh
Accommodation Act.
Sec. 4 provides that the tenant must have defaulted to pay arrears of rent
within one month from the date on which a notice of demand has been served
upon him by the land lord.
Held: Supreme Court did not applied principle of beneficial construction on the
ground that there was no ambiguity in the language of Sec. 4 of the Act.
Secretary State of Karnataka v. Umadevi, (2006) 4 SCC
Contract Labour (Regulation and Abolition)Act, 1970 m
o
Those employed on daily wages or temporary or on contractual basis by
c
.
the State or its instrumentalities cannot be said to be holders of a post and have
a
no right to regularization simply because they have worked for a number of
years.
m
The decision shows that sympathy or sentiment by itself cannot be a
a
ground for passing a favourable order when there is no legal right to support an
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order. Supreme Court overruled number of cases to the contrary
Illustrative examples
d
• Service rendered by medical doctor is a service within the meaning of Sec.
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2(o)of the Consumer protection Act, 1986 (Indian Medical Association v. V.P
S
Santha, AIR 1995 SC 550)
• Housing construction although not expressly included, was held to be service of
any description which is made available to potential users’ Hence, authorities
can entertain a complaint by a consumer for any defect or deficiency in relation
to construction activity against a private builder or statutory authorities.
(Lucknow Development Authority v. M.K Gupta, AIR 1994 SC 787).
• In National Textile worker’s Union v. P.R Ramakrishnan AIR 1983 SC
Justice Bhagwati said “We cannot allow dead hand of the past to stifle
growth of the living present. Law cannot stand still, it must change with
changing social concepts and values. If the law fail to respond to the needs of
changing society, then either it will stifle the growth of the society and choke its
progress or if the society is vigorous enough”.
Law must therefore constantly be on the move adopting itself to the fast
changing society and not lag behind.
We cannot therefore mechanically accept as valid a legal rule which
found favour with the English Courts in the last century when the doctrine of
laissez fair prevailed.
It may be that even today in England the courts may be following the
same legal rule which was laid down almost a hundred years ago, but that can
be no reason why we in India should continue to do likewise.
We have to build our own jurisprudence and through we may receive light
from whatever source it comes, we cannot surrender our judgment and accept as
valid in our country whatever has been decided in England.
The court has to bear in mind that it is a beneficial piece of social welfare
legislation aimed at promoting and securing the well being of the employees
and the court will not adopt a narrow interpretation which will have the effect of
defeating the very object and purpose of the Act in construing the provisions of
the Act.
Labour laws, being beneficial piece of legislation are to be interpreted in
favour of beneficiaries. In case of doubt or where it is possible to take two
views of a provision, the benefit must go to the labour.
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legislation to extend the benefit rather than one which curtails the benefit.
c o
• Beneficial statutes should not be construed too restrictively. In case of doubt or
two possible views the beneficiary legislation is to be interpreted in favour of
beneficiaries. .
a
Pratap Singh v. State of Jhakhand, (2005) 3 SCC 551
m
The Juvenile Justice (Care Protection and Treatment) Act, 2000 provides that
all persons below 18 years of age were juveniles.
a
Court held that in the wake of the beneficent objectives of the new act, even a
yn
person who was not a juvenile under the 1986 Act was for the purpose of
sentencing to be treated as a juvenile under the 2000 Act.
d
Geetha v. Union of India AIR 2005 SC
tu
The Court was concerned with the interpretation of Section 124A of the
S
Railway Act, 1989, which dealt with compensation on account of an untoward
accident. The claim of the appellant was disputed on the ground that deceased
was not a bona fide passenger.
Held: The ambit of the definition of the word passenger was to ‘include’ a wide
variety of people, i.e. those who had a platform ticket etc. given that the
deceased was travelling with valid documents of authorization issued by the
military, the claim of the appellant was upheld.
Ajaib Singh v. Sirhind co-op Marketing-cum-Processing Service Society Ltd.
The Court had to consider whether a delay of 7 years in approaching the Labour
Court to challenge an order of termination would lead to the matter being
inadmissible.
It was argued disputes under the Industrial Disputes Act, 1947, being social
welfare legislation, would not attract the application of the Limitation Act.
Held: Accepting the contention, and held that jurisdiction of the Labour Court
could not be disputed on the basis of limitation.
The Court observed:
“The object of Industrial Disputes Act 1947 is to improve the service conditions
of industrial labor so as to provide for them the ordinary amenities of life and by
the process, to bring about industrial peace which would in its turn accelerate
productive activity of the country resulting in its prosperity. The prosperity of
the country in its turn, helps to improve the conditions of labour. Therefore, the
provisions of the Act have to be interpreted in a manner which advance the
object of the legislature contemplated in the statement of objects and reasons.
While interpreting different provisions of the Act attempts should be made to
avoid industrial unrest, secure industrial peace and to provide machinery to
secure the end. In dealing with the industrial disputes, the courts have always
emphasized the doctrine of social justice, which is founded on the basic ideal of
socio-economic equality as enshrined in the preamble of the Constitution”.
Limitations on the powers of the courts in application of Beneficent Legislation
• If on the application of the rule of beneficent or benevolent construction the
court finds that it would be doing justice within the parameters of law there
appears to be no reason why such construction be not applied.
The judicial precedents have laid down certain criteria that where and when this
rule of construction is required to be applied or not to be applied these are-
a. Where the court finds that by application of the rule of benevolent construction
it would be re legislating a provision of statute either by substituting, adding or
altering the words used in the provisions of the Act.
b. When the words used in a statue are capable of only one meaning. In such a
situation, the courts have been hesitant to apply the rule of benevolent
m
construction. But if it is found that the words used in the statute give rise to
o
more than one meaning in such circumstances, the courts are not precluded
c
from applying this rule of construction.
.
c.
a
Where there is no ambiguity in a provision of a statute so construed. If the
provision is plain, unambiguous and does not give rise to any doubt, the rule of
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benevolent construction cannot be applied. However, if it is found that there no
a
doubt regarding the meaning of a provision or word used in the provisions of
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any Act, it is permissible for the courts to apply the rule of beneficent
construction to advance the object of the Act.
d. d
Court should not proceed with any prior assumption whether legislation is
tu
beneficent to management or the workmen. The court must construe the
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statutory provision with a view to uphold the object and purport of Parliament.
It is only in a case where there exists a grey area and the court feels difficulty in
interpreting or in construing and applying the statute, the doctrine of beneficent
construction can be taken recourse to.
•
t
The main part u of a section must not be construed in such a way as to render a
S of literal rule by judges
proviso to the section redundant
Application
• Read the statute as a whole and attempt to harmonize all parts.
• Inconsistencies must be avoided
• Operative effect must be given to every part of the statute
• Ascribe meaning to the words with reference to the subject matter of the
act/context of the act
Case laws
a
meaning i.e their meaning as exists in common parlance.
Motipur Zamindary Company Private Limited v. State of Bihar, AIR 1962 SC
660. m
a
Question was whether sugarcane fell within the term green vegetables in Entry
yn
6 of the Schedule and as such no sales tax could be levied under the Bihar Sales
Tax Act, 1947 on its sale.
d
Vegetables should be interpreted in its natural and popular sense and that
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dictionary meaning is not of such help.
Vegetables as the normal people means by it are those which can be grown in a
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kitchens garden to be used for the table, that is to say, to be eaten during lunch
or dinner.
Held:
Sugarcane definitely does not fall under this category.
Similarly, green ginger, chillies and lemons have been held to be vegetables
while coconut has been held to neither ‘fresh fruit’ nor ‘vegetables’ and watery
coconut is neither green fruit nor dried fruit.
Forest Range Officer v. Khushboo Enterprises, AIR 1989 SC 1011.
Section 2(f) of the Kerala Forest Act, 1961 defines forest produce to include
whether found in or brought from a forest or not that is to say: ‘timber, charcoal,
wood-oil’.
Question before the Supreme Court was whether sandal wood oil is ‘wood oil’
as used in the above definition of forest produce.
Sandal wood oil is produced at a factory level by mechanized process utilizing
the hard wood and roots of sandal wood trees removed from forest as a raw
material.
Dictionary meaning of wood oil is a natural produce of the forest derived as an
exudation from living trees in the forest belonging to trees and it will not
include sandal wood oil which is a bye-product from sandal wood by industrial
process.
Held: Court rejected the above argument the object of the Act was to conserve
forest wealth and there was no indication in the act to exclude what was
ordinary and in common parlance spoken of as wood oil.
Sandal wood oil was wood oil within the definition of forest produce.
Harbhajan singh v. Press Council of India AIR 2002 SC 1351
Sec. 6(7) of the Press Council Act, 1978 provides:
A retiring member shall be eligible for re-nomination for not more than one
term’
Held: Supreme Court applied the literal meaning of these words and held that
the provision applied to a member just retiring and not to retired members.
a
If the result of the interpretation of a statute by the literal rule is not what the
legislature intended, it is for the legislature to amend the statute, rather than for
m
the courts to attempt the necessary amendment by investing plain language.
a
y n
Ordinary and natural meaning not to be controlled by supposed intention
The intention of the legislature is to be gathered only from the words used by it
d
and no such liberties can be taken by the courts for effectuating a supposed
The general
u
intention of the legislature.
t rule is not to import into statutes words which are not found
S
therein.
The court cannot read anything into the statutory provision which is plain and
unambiguous.
Words are to be interpreted as they appear in the provision, simple and
grammatical meaning is to be given to them, and nothing can be added or
subtracted.
Court not to make an assumption of intention before construction.
Ordinary and natural meaning not to be controlled by intention of legislature.
Ordinary and natural meaning of words not to be controlled by spirit of
legislature.
Ordinary and natural meaning not to be controlled by considerations of public
policy.
Clear language cannot be allowed to be controlled by considerations of
legislative policy.
Ordinary and natural meaning not to be controlled by equitable construction.
Equitable construction was by the judges that takes cases out of the letter of the
statute.
Ordinary and natural meaning not to be affected by considerations of hardship,
inconvenience etc.
No consideration of hardship can, therefore, justify a departure from the plain
meaning of a statute.
Maradana Mosque (Board of Trustee) v. Mahmud, (1967) I AC 13
Interpretation of the word ‘is being administered’ was involved. Under
provision of an Act a minister could pass a certain order if he was satisfied that
a school ‘ is being administered’ in violation of the provisions of the Act.
Held: Applying the literal rule the prevision was in present tense and, therefore,
only present conduct of the school could be looked into and not the past
conduct.
In Bimal Chand v. Gopal Agarwal, AIR 1981 SC 1656
A notification was issued by the State Government under Sec. 3A of the UP
Sales Tax Act 1948.
Acc. to which tax was fixed at two percent of the turnover payable at all points
of the sale in the case of cooked food.
The appellant firm which was manufacturer and as well as seller of biscuits for
human consumption claimed to come under this notification as biscuit was also
a cooked food
Held: Supreme Court rejected this contention and held that the words used in a
law imposing a tax should be construed in the same way in which they are
m
understood in ordinary parlance in the area in which the law is in force.
o
When an expression is capable of a wider meaning, then the question whether
c
.
the wider or narrower meaning should be accepted depends on the context.
a
Ordinarily, biscuit is not a cooked food, and therefore, it cannot be taxed under
this notification.
m
• Words are used in an Act n
a
II.Exact meaning preferred to loose meaning
of Parliament correctly and exactly and not loosely
and inexactly. y
dunderstood
III. Technical words in technical sense
•
a. t u
Technical words are in the technical sense only
Special meaning in trade, Business etc.
• WordsSare understood in their ordinary or natural meaning in relation to the
subject-matter, in legislation relating a particular trade, business, profession art
or science, words having special meaning in that context are understood in that
sense
Ashiwini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369
In construing the word ‘practice’ in Supreme Court Advocates (Practice in High
Court) Act 1951, Patanjali Shastri, CJ, observed:
The practice of law in this country generally involves the exercise of both the
functions of acting and pleading on behalf of a litigant party; accordingly when
the legislature confer upon an advocate ‘the right to practice’ in a court, it is
legitimate to understand that expression as authorizing him to appear and plead
as well as to act on behalf of suitors in that court.
Consequences of divergence from the cardinal rule
State of Kerala v Mathai Verghese AIR 1987 SC 33
While defining ‘any currency notes’ under section 489A of the Indian Penal
Code, 1860 which deals with counterfeiting currency, the Supreme Court
reprimanded the Kerala High Court for giving it a narrow meaning of just
Indian currency though the word ‘any’ should have been given its general
meaning and thus would include currencies of all countries.
In Raghunath Rai Bareja and another vs. Punjab National Bank and others ,
SCC 2007, 230 (Paras 57 and 58)
• “The literal rule of interpretation really means that there should be no
interpretation. In other words, we should read the statute as it is, without
distorting or twisting its language;
• We may mention here that the literal rule of interpretation is only followed by
judges and lawyers, but it is also followed by the layman in his ordinary life.
• To give an illustration, if a person says this is a pencil and then he means that it
is a pencil; and it is not that when he says that the object is a pencil, he means
that it is a horse, donkey or an elephant. In other words, the literal rule of
interpretation simply means that we mean what we say and we say what we
mean. If we do not follow the literal rule of interpretation, social life will
become impossible, and we will not understand each other. If we say that a
certain object is a book, then we mean it is a book. If we say it is a book, but we
mean it is a horse, table or an elephant, then we will not be able to communicate
with each other. Life will become impossible. Hence, the meaning of the literal
rule of interpretation is simply that we mean what we say and we say what we
mean.”
m
c o
21. MANDATORY AND DIRECTORY PROVISIONS .or directory depends upon the
a
The question as to whether a statute is mandatory
u
enactment, the same
t is mandatory an act done in its breach will be invalid whereas if it
If a provision
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is directory the act will be valid although the non-compliance may give rise to
some other penalty if provided by the statute.
Directory and Mandatory provisions distinguished
a. Mandatory provisions are to be complied strictly. In case of directory
enactments only substantial compliance is sufficient.
b. A provision is not mandatory unless non-compliance with it is made penal. A
mandatory provision must be obeyed and any act done in its breach will be
invalid but if it is directory it will be valid.
Ex: Sec. 117 of the Representation of the People Act, 1951 provides: ‘At
the time of presenting an election petition, the petitioner shall deposit in the
High Court in accordance with Rule of the High Court a sum of two thousand
rupees as security for costs of petition’
Construing this section it has been held that the requirement of making
the deposit of two thousand rupees as security is mandatory, but mode of
deposit as well as person who could make the deposit is directory.
Mandatory and Directory enactment
Test for determining whether a provision in a statute is directory or imperative
• No universal rule can be laid down as to when may a statutory provision be
regarded as merely directory and when mandatory. In each case has to be
adjudged in the light of the intention of the legislature as disclosed by the
object, purpose and scope of the statute.
m
the Supreme Court that consultation with Chief Justice of the India was a
mandatory requirement.
c o
• One of the important tests that must always be employed in order to determine
.
whether a provision is mandatory of directory in character is to consider
a
whether the non-compliance of a particular provision causes inconvenience or
m
injustice and, if does, then the court would say that provision must be complied
with and that it is obligatory in its character.
a
• Mandatory provision of a statute cannot be ignored merely on the ground of
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hardship or as merely procedural. If a provision is clearly of mandatory nature it
d
should not be interpreted as directory.
tu
• If an object of the enactment is defeated by holding the same directory, it should
be construed as mandatory whereas if by holding it mandatory serious general
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inconvenience will be created to innocent persons of general public without
much furthering the object of enactment, the same should be construed as
directory.
• If the legislative intent is expressed clearly and strongly, such as the use of
‘must’ instead of ‘shall’ that it will be sufficient to hold the provision to be
mandatory, and it will not be necessary to pursue the inquiry further.
For ex:
• The period prescribed in the schedule to the Indian Limitation Act 1963, for
bringing a legal proceeding are mandatory because the consequences of the
expiry of the period of limitation is provided by S. 4 of the Act in that the court
is enjoined to dismiss a legal proceeding instituted after expiry of the prescribed
period.
• Sec. 17 of the Registration Act 1908 and provisions of Transfer of Property Act
1882 prescribe certain requirements as to registration of certain documents.
These requirements are mandatory as the consequence of non-registration is
provided by s. 49 of the Registration Act in that such documents if not
registered do not affect the property comprised therein.
Shall
The word ‘shall’ though prima facie gives impression of being of mandatory
character, it requires to be considered in the light of the intention of the
legislature by carefully attending to the scope of the statute, its nature and
design and the consequences that would flow from the construction thereof one
way or the other.
Where statute imposes a public duty and lays down the manner in which
and the time within which the duty shall be performed, injustice or
inconvenience resulting from rigid adherence to the statutory prescription may
m
be a relevant factor in holding such prescriptions only directory.
Ex: While construing sec. 17(1) of the Industrial Dispute Act, 1947, that it
c o
is obligatory on the government to publish an award, but the provision, that it
.
should be published within thirty days, is not mandatory and an award
published beyond thirty days is not invalid.
May
a
m
While construing the word May court has to consider following aspects;
a. a
Object and the scheme of the Act,
yn
b. The context and the background against which the words have been used,
c. The purpose and the advantages sought to be achieved by the use of this word.
d
Discretion to be exercised properly-discretion coupled with an obligation
tu
In construing a statute, it always assume that the discretionary power
S
conferred upon various authorities under the statute will be used properly and
not in an arbitrary or capricious manner.
• Mandatory provisions to be strictly construed while directory provisions to be
liberally construed.
• Directory provision does not mean that compliance with it is purely
discretionary.
Key aspects
No universal rule can be laid down, while construing statutes, to determine
whether mandatory enactments should be considered directory, or obligatory
with an implied nullification for disobedience. It is the duty of the courts to try
to get at the real intention of the legislature by carefully attending to the whole
scope of the statute to be construed. No universal rule can be laid down in this
matter.
What are mandatory and directory provisions?
Craies put the matter “When statute is passed for the purpose of enabling
something to be done and prescribes the formalities which are to attend its
performance, those prescribed formalities which are essential to the validity of
the thing when done are called imperative or absolute, but those which are not
essential, and may be disregarded without invalidating the thing to be done, are
directory”
yn
Smith v. Hughes (1960)I WLR
d
Section 1(1) of the Street Offences Act 1959
tu
Question was whether prostitutes who attracted prospective customer from
balconies or windows were soliciting in a street as provided under section (1) of
S
the said act.
Held: Applying the mischief rule it was held that Soliciting in a street and thus
place from where they were doing so was of no consequences because the act
was intended to clean up the street to enable people to walk along with street
without being molested or solicited by prostitute.
Lord Parker “I approach the matter by considering what the mischief is aimed at
by this Act. Everybody knows that this was an act intended to clean up the
streets, to enable people to walk along the streets without being molested or
solicited by common prostitute.” Viewed in that way, the precise place from
which a prostitute addressed her solicitations to somebody walking in the street
became irrelevant.
yn
expression. Under the Dowry Act no claim could be enforced without
establishing a legally valid marriage, the purpose for which section 498A, 304-
d
B of IPC cannot be forgotten.
tu
Held: The husband covered a person who entered into a marital relationship and
under such proclaimed status of husband subjected the woman concerned to
S
cruelty or coercion.
m
retrospective operation will be limited only to the extent to which it has been so
made by express words, or necessary implication.
c o
b. The second rule is that if the intention of the legislature has always to be
.
gathered from the words used by it, giving to the words their plain, normal and
grammatical meaning. a
m
c. Where a statute is not clear as to whether it has retrospective effect and can be
a
interpreted either way on this point, the court should not give it retrospective
yn
effect. Except where necessary, a statute should not be read retrospectively.
Pending actions are not affected by new statute, unless the latter are expressly
d
made applicable to the former.
tu
Acc. to Maxwell, no person has a vested right in any course of procedure. He
has only the right of prosecution or defence in the manner prescribed for the
S
time being by or for the court in which the case is pending, and if, by an Act of
parliament the mode of procedure is altered, he has no other right than to
proceed according to the altered mode.
yn
suit;
d. The right of appeal exists as on the date the suit commences, this right is to be
d
governed by the law prevailing at the date of the institution of the suit and not
tu
by the law that prevails at the date of its decision.
e. This vested right of appeal can be taken away only by a subsequent enactment if
S
it so provides or by necessary intendment and not otherwise.
Pending Proceeding
Litigant has no vested right in any matter of procedure, alteration in procedure
law are generally held to be retrospective in the sense that they apply to future
as well as to pending actions.
m
Alteration of Substantive Right
c o
.
In the absence of anything in the enactment to show that it is to have
a
retrospective operation, it cannot be so construed as to have the effect of
altering the law applicable to a claim in litigation at the time when the Act was
passed. m
a
y
Proceedings for selection
n
AA Cotton v. Director of Education,
to the
AIR 1983 SC
post of Principal were pending before the
d under S 16F of the UP Intermediate Education Act 1921
Director of Education
when the Actu
to make antappointment.
was amended taking away the power of the Director of Education
S
Held: Amending Act could not in the absence of express words or necessary
implication be construed to take away the power of the Director in the pending
proceedings for selection.
yn
to do something which was obviously wrong.
Rule of evidence: If alteration is made in a rule of evidence, the alterations shall be
d
ordinarily deemed to be retrospective. The law of evidence is a law of mere procedure and
tu
does not affect substantive rights. Alterations in the forms of procedure are always
retrospective unless there is some good reason or other why they should not be.
S
Retrospective operation of Rules: The subordinate legislative authority/rule making
authority has no power to make a rule or regulation with retrospective effect, unless it is
expressly empowered to do so.
It has been held that Sec. 45B of the Employee’s State Insurance Act 1948, which enables
the Employees State Insurance Corporation to recover arrears of contribution from the
employers as arrears of land revenue, has been held to be procedural and applicable to
arrears falling due before coming into force of the Section. (Employee State Insurance
Corporation v. Dwarka Nath Bhargava AIR 1997 SC.)
yn
connection with the election incurred by the candidate.
In construing this provision, the court read sections 13A and 139(4B) of the
d
Income Tax Act, 1961.
tu
The Court held that if a political party is not maintain audited and authentic
accounts and is not filling return of income, it cannot justifiably plead that it has
S
incurred expenditure under the said section.
Sec. 77(1) does not give protection to the expenditure which comes from
unknown or black sources.
Sec. 293A provides that the main income of a political party comes from
contributions from companies which are permitted to make these contributions
under the conditions laid down in S. 293A of the Companies Act and are
required to disclose them in their profit and loss account.
The Schedules to Punjab Town Improvement Trust Act 1936 though not
identical, have been held to be in pari materia.
• yn
It is perfectly legitimatize to refer to repealed acts on the same subject to see
d
whether the legislature has attributed to a particular phrase a definite force for
tu
dealing analogous subjects and even to later acts on the same subject.
•
S
When the new legislation, although re-enacting many provisions from earlier
statutes, contains a good deal of fresh material and deals with a subject on
which social views have drastically changed, it may not proper to rely on the
earlier authorities for construing the new legislation.
• When there is no ambiguity in the statute, in construing it, reference to any
previous legislation or decisions rendered there under may not be permissible.
I. Parliamentary History
English practice
i. Traditional view:
Intent of the Parliament which passed the Act, is not to be gathered from
parliamentary history of the statute.
The bill in its original form or the amendments considered during its progress in
the legislature are not admissible aids to construction.
Recommendations contained in the report which may have led to the
introduction of the measures in parliament cannot be used as evidence for the
purpose of showing the intention.
ii. Modern trend
Legislative history of a statute can be looked into for interpreting a
m
provision therein only in case of ambiguity and not otherwise.
In Peppar v. Hart (1993AC 466)
c o
The House of Lords had to decide whether a teacher at a private school
.
had to pay tax on the perk he received in the form of reduced school fees. The
a
teacher sought to rely upon a statement in Hansard made at the time the Finance
m
Act was passed in which the minister gave his exact circumstance as being
a
where tax would not be payable. Previously the courts were not allowed to refer
yn
to Hansard.
Held:
d
The House of Lords departed from Davis v Johnson and took a purposive
tu
approach to interpretation holding that Hansard may be referred to and the
teacher was not required to pay tax on the perk he received.
a.
S
“Reference to parliamentary material/ speeches for construction can be made
only where the legislation is ambiguous obscure or its literal meaning leads to
an absurdity.
b. To find out the meaning of a law, recourse may legitimately be had to the prior
state of law, the evil sought to be removed and the process by which the law
was evolved.
c. It cannot control the meaning.
Indian View
a. Statement of objects and reasons
• Statement of the Minister who had moved the bill in parliament can be looked
at to ascertain mischief sought to be remedied by the legislation and object and
purpose for which the legislation is enacted.
• It cannot be used to determine the true meaning and effect of the substantive
provisions of the statute. Nor can control the actually words used in provisions
of the constitution.
• Reference to the statement of objects and reasons is permissible for
understanding the background, the antecedent state of affairs, the surrounding
circumstances in relation to the statute, and the evil which the statute was
sought to remedy.
• The weight of judicial authority leans in favour of the view that the statement of
objects and reasons cannot be utilized for the purpose of restricting and
controlling the plain meaning of the language employed by the legislature in
drafting a statute and excluding from its operation such transactions which it
plainly covers.
A.K Gopalan v. State of Madras, AIR 1950 SC
‘A speech made in the course of the debate on a bill would at best be indicative
of the subjective intent of the speaker, but it could not reflect the inarticulate
mental process lying behind the majority vote which carried the bill. Nor is it
reasonable to assume that the minds of all the legislators were in accord’.
Kesavand Bharathi v. State of Kerala AIR 1973 SC
Sikri C.J. observed….
• Speeches made by members of legislative in the course of debates relating to an
enactment of a statute cannot be used as aids for interpreting any of the
provisions of the statute.
• Those who did not speak may not have agreed with those who did; and those
who spoke might differ from each other.
m
c o
• Speeches in the Constituent Assembly could always be perused to find out the
true intention of the framers of the constitution regarding the interpretation of
the constitution. .
a
Indira Sawhney v. Union of India, AIR 1993 SC 477.
m
The Supreme Court referred to Dr. Ambedkar’s speech in the Constituent
a
Assembly while interpreting Art. 16(4). The expression background class of
yn
citizens is not defined in the constitution, reference of such debates is
permissible to ascertain at any rate the context, background and objective
behind them.
d
tu
Statement of objects and reasons accompanying a bill cannot be used to
S
determine the true meaning but they can be used for understanding the
background and the antecedent state of affairs leading upto the legislation.
tu
intention was. I only want to know what the words mean.”
It is the responsibility of the court to find out intent, if possible. Suppose if the
S
intent is thoroughly confused or undiscoverable for other reasons, intent must
be inferred.
Dworkin’s coherence theory of statutory interpretation Statute should be
interpreted to advance the policies or principles that furnish the best the political
justification for the statute.
• Statutory interpretation must be consistent with the statutory wording itself and
must find substantive support in the political climate at the time of its
enactment.
• Statutes over time will diminish the influence of legislative histories because of
the social or legal circumstances have significantly changed since enactment of
statute.
Report of official commission, judicial council or executive branch committee
are considered authoritative provided it is directed to the same purposes as the
resultant statute.
Even if legislative intent cannot be inferred directly from a legislative history,
then, the history can often be of some assistance in construing a statute.
Pepper (Inspector of Taxes) v Hart [1992] U
A landmark decision of the House of Lords on the use of legislative
history in statutory interpretation. The court established the principle that
when primary legislation is ambiguous then, in certain circumstances, the court
may refer to statements made in the House of Commons or House of Lords in
an attempt to interpret the meaning of the legislation.
Explanatory notes issued by the departments concerned before a bill is
introduced in parliament, though not forming part of the bill, may also be
admitted.
28. PENAL-2
R V. Fellow
c o
. a photograph under
a
• Whether the computer data in the archive was considered
section 1 of the 1978 Act.
• If it was not considered a photograph, m
a is the computer disk a copy?
yn
• Did the 1978 Act and 1959 Act, before they were amended in 1994, have a wider
scope?
ddata that was in Fellows possession was distributed, or
t u
• Whether the computer
shown, by being made available for downloading to other computer users.
S
Judgment
The computer data within the archive was considered a photograph for the
purposes of section 1 of the 1978 Act.
Even though the computer disc is not itself a photograph, the court held that
there is nothing in the Act which makes it implicit that the copy must be an
actual physical photograph
The data stored in a computer disc, a technology not anticipated in 1978, was
held to amount to ‘indecent photograph’ within the meaning of section 1 of the
protection of Children Act, 1978
yn
must have some connected with the marriage of the parties which is absent in
the present case. In view of the above the conviction of the appellant under
d
section 304-B, Indian Penal Code for dowry death was set aside
Sakshi t
u
v. Union of India, AIR 2004 SC
S
The Supreme Court remarked that the rape, defined under Section 375 of the
Indian Penal Code, only heterosexual intercourse involving penetration of
the vagina by the penis coupled with the explanation that penetration is
sufficient to constitute the sexual intercourse necessary for the offence of
rape is sufficient. All forms of penetration such as penile/vaginal, penile/oral,
penile/anal, finger/vagina and finger/ and penetration are not covered within
it. Since there is no ambiguity in the definition, it is not desirable to create
chaos by wrong judicial interpretation.
m
hanging the present decision was manufactured in a different factual context
a
and with a different purpose from the instant case”.
yn
A precedent is a judicial decision which contains in itself a principle. The
underlying principle which thus forms its authoritative element is termed the
ratio decidendi.
d
tu
While the concrete decision is binding between the parties to it; the abstract
ratio decidendi has the force of law as regards the world at large.
S
The only use of authorities or decided cases is the establishment of some
principle, which the judge can follow in deciding the case before him.
Every court is under an obligation to follow the precedent laid down by a court
superior to it. A magistrate is bound to follow the authority of the high court,
and it is his duty to keep himself informed of its decisions. Failure to do so is a
dereliction of duty on his part.
The theory of precedents consists of the following three well recognized
ingredients
a. Finding of material facts, direct and inferential. An inferential finding of facts is
the inference which the judge draw from the direct, or perceptible facts,
b. Statements of the principles of law applicable to the legal problems disclosed by
the facts; and
c. Judgment based on the combination of (a) and (b) above
Stare Decisis
‘To stand by decisions and not to disturb what is settled’. A principle of law
which has become settled by a series of decisions is generally binding on the
courts and should be followed in similar cases.
It envisages that the lower courts are bound b the decisions of the higher courts.
Art. 141 provides ‘ the law declared by the Supreme Court shall be binding on
all courts within the territory of India’.
Supreme Court emphazing upon the need for the court to follow the principle of
stare decisis, has observed:
‘Consistency is the cornerstone of the administration of justice. It is consistency
which creates confidence in the system and this consistency can never be
achieved without respect to the rule of finality. It is with a view to achieve
consistency in judicial decision, the court have evolved the rule of precedents,
principle of stare decisis etc. These rules and principles are based on public
policy and if these are not followed by courts then there will be chaos in the
administration of justice’.
The doctrine of stare decisis shall be no fetter to the Supreme Court to overrule
an earlier decision, if it is found that such decision is manifestly wrong.
A principle of law which has become settled by a series of decisions generally
is binding on the courts and should be followed in similar cases. The rule is
based on expediency and public policy. It is however not universally applicable.
Rule of stare decisis bring about consistency, certainty and uniformity.
Previous decision should not be followed to the extent that grievous wrong or
erroneous.
Ratio Decidendi
The ratio decidendi of a decision is the principles of law formulated by the
judge for the purpose of deciding the problem before him. m
o
Prof. Goodhart the principle of the case is found by taking into account- a. the
c
.
facts treated by the judge as material; and his decision as based on them.
Authoritative or persuasive
a
An authoritative precedent is one which the court, before whom it is cited, is
m
bound to follow whether it approves of the principles or not.
a
A persuasive precedent is one which stands on its own merits and which the
yn
judges are not bound to follow.
The law laid down by the Supreme Court shall be binding on all courts within
d
the territory of India (Art.141).
tu
Supreme Court may depart from its previous decision, if it is convinced of its
error and its law full efforts on the general interest of the public.
S
Decision of the Privy Council are not binding on the Supreme Court, and the
Supreme Court can declare a decision of the Privy Council as not sound.
Decision of High Court on local statute plays important role.
When a division bench differs from the decision of a previous decision of
another decision bench, the matter should be referred to a larger bench for final
decision.
Court of co-ordinate jurisdiction
Observation made with reference to the construction of one statute cannot be
applied with reference to the provision of another statute which is not in pari
materia with the statute which forms the subject matter of the previous decision.
Obiter dicta
Observation as to the law made by a judge in the course of a case relating to the
problem arising for decision, though they may have great weight as such as not
conclusive authority.
Obiter dictum is an opinion on some point which is not necessarily for the
decision of the case
Carnelius v. Phillips [1918 AC]
Dicta by judges, observed Lord Haldane ‘however eminent, ought not to be
cited as establishing authoritatively propositions of law unless the dicta really
form integral parts of the train of reasoning directed to the real question
decided’.
The general observations of Lordships of the Supreme Court too are entitled to
great weight.
A certified true copy of the decision of the High Court is binding on the court
inferior thereto.
m
Binding value of Privy Council decisions in post Independence India
o
The decision of the Privy Council are now not binding on the Supreme Court,
c
.
and the Supreme Court can declare a decision of the Privy Council as not sound.
a
Before 1950, the law laid down by the Privy Council was the law of the
country. After 1950, the decisions of the Privy Council have only persuasive
authority. m
a
Reliance on English and Foreign precedents
yn
The judgments of the superior courts of England and United States of America
are only persuasive precedents. The judges of India are under no obligation to
d
follow them but, in many cases, they have followed it, though they have not
tu
hesitated to differ from them when they conflicted with the statutory provisions
contained in Indian Act.
S
Where the provisions between the English Act and the Indian Act, are in pari
materia; where local conditions do not materially differ from the conditions in
UK, then keeping Indian conditions in view the outlook adopted by the English
courts may be examined, and if consistent with local jurisprudence, and social
condition, then path chalked out for the movement of the law is profitable then
assistance may be obtained from the decision. But ignoring all the relevant
considerations, English decisions cannot be bodily imported into the Indian
legal system to create a hybrid legal system. It is not right to be so hypnotized
by English decisions as to overlook legislative changes introduced in Indian
Law.
In Liverpool and London SP & I Association v. MV Sea Success (2004) 9 SCC
512
The Supreme Court observed as follows:
“It is true that this court is not bound by the American decisions. The American
decisions have merely a persuasive value but this court would not hesitate in
borrowing the principles if the same is in consonance with the scheme of Indian
law keeping in view the changing global scenario. Global changes and outlook
in trade and commerce could be a relevant factor. With the change of time; from
narrow and pedantic approach, the court may resort to broad and liberal
interpretation. What was not considered to be a necessary a century back, may
be held to be so now”.
Where the Indian statute practically reproduces the English enactment, it would
not be proper to neglect the judicial decisions in England.
Ex: The Law of Trade Marks adopted Indian Trade Mark Act merely
reproduces the English law with only with slight modifications, a reference to
the judicial decisions on the corresponding section of the English act is helpful.
‘English decisions are not precedent which governs us, but are only referred to
for the purpose of finding out the principle underlying those decisions and to
explain the Indian statutes which are usually framed with reference to those
decision’.
The provisions of the Indian statute must be understood in their background and
setting in interpreting them, regard must be had to the conditions, customs and
religious belief of those affected by the provisions.
National Textile Workers Union v. P.R Ramakrishnan, AIR 1983 SC.
While dealing with aspects of the value to be attached to decisions of English
courts
J. Bhawati, J “ A legal rule which found with the English courts in the last
century when the doctrine of laisses-faire prevailed. Should not be mechanically
m
accepted as valid merely on the ground that it has been accepted as valid rule in
o
England and is still being followed there. The court in India will have to build
c
.
their own jurisprudence and though they may receive light from whatever
a
source it comes, they cannot surrender their judgment and accept as valid in
India whatever has been decided in England.”
m
Whether Supreme Court bound by its own decisions
a
“There is nothing in our constitution which prevent us from departing from
yn
previous decision if we are convinced of its error and baneful effect on the
general interests of the public.”Article 141 only enacts that the decisions of this
d
court are binding on all courts, and that does not stand in the way of this court
tu
itself, reversing or modifying a previous decision, as when that is done, such
decision would therefore became itself the law under that article.
S
Decision on question of facts not binding
Question of fact, cannot be binding and cited as precedents governing the
decision of other cases
It is impermissible for a High Court to overrule the decision of the Apex Court
on the ground that the Supreme Court laid down legal position without
considering any other point. High Court cannot question the correctness of the
decision of the Supreme Court even though the point sought before the High
Court. (Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420.)
When a court differs from the decision of a co-ordinate bench of a Single Judge
of High Court, the decision should be referred to Larger Bench.
If a division bench of a High Court differs from the view expressed by another
division bench of the same court, it is appropriate that the matter is referred to a
larger bench. (Rajesh Kumar Verma v. State of Madhya Pradesh and
others, AIR 1995 SC 1421).
When there is a conflict of opinion that is when there is disagreement by one
single judge with the decision of another single Judge it is appropriate that the
appropriate course is to refer the matter to a larger bench for an authoritative
decision.
One Full Bench decision cannot over rule another Full Bench Decision
delivered by Judges of equal strength.
Circumstances weakening the bidingness of precedents
Abrogated decisions
m
o
A decision ceases to be binding if a statute or statutory rule is inconsistent with
c
.
it is subsequently enacted or if it is reversed or overruled by a higher court.
Ignorance of statute
a
A precedent is not binding if it was rendered in ignorance of a statute or rule
m
having the force of statute. Such decisions are per incuriam and not binding.
a
The mere fact that the earlier court misconstrued a statute or ignored a rule of
yn
construction is no ground for impugning the authority of precedent.
To come within the category of per incuriam it must be shown not only that the
d
decision involved some manifest slip or error but also that to leave the decision
tu
standing would be likely, inter alia, to produce serious inconvenience in the
administration of justice or significant injustice to citizens.
S
Sub silentio
Precedents sub silentio or not argued: A decision passes sub silentio when the
particular point of law involved in decision is not perceived by the court or
present to its mind. When a decision is on point A upon which judgment is
pronounced but there was another point B on which also court ought to have
pronounced before deciding the issue in favour of the party, but that was not
argued or considered by the Court. In such circumstances although point B was
logically involved in the facts and although the case had a specific outcome, the
point B is said to pass sub silentio. (Gerard v. Worth of Pipers Ltd (1936) 2 All.
E R 905(A))
A precedent is not destroyed merely because it was badly argued, inadequately
considered and fallaciously reasoned.
Total absence of argument vitiates the precedent. A decision is an authority only
for what it actually decides and not for what may logically or remotely follows
from it.
Decision on a question which has not been argued cannot be treated as
precedent. M/s. Goodyear India Ltd. v. State of Haryana and another, AIR 1990
SC 781.
Distinguishing
A binding precedent is a decided case which a court must follow. But a previous
case is only binding in a later case if the legal principles involved are the same
and the facts are similar.
Distinguishing a case on its facts, or on the point of law involved, is a device
used by judges usually in order to avoid the consequences of an earlier
inconvenient decision which is, in strict practice, binding on them.
Even Apex Court is bound by its earlier decisions. It is only when the Supreme
Court finds itself unable to accept the earlier view; it shall be justified in
deciding the matter in a different way.
Overruling
A higher court can overrule a decision made in an earlier case by a lower court
eg. The Court of Appeal can overrule an earlier High Court decision.
Overruling can occur if the previous court did not correctly apply the law, or
because the later court considers that the rule of law contained in the previous
ratio decidendi is no longer desirable.
The Apex Court, which in the light of the subsequent experience has been found
to be patently erroneous, manifestly unreasonable or to cause hardship or public
m
inconvenience. The Court has to keep the balance between the need of certainty
o
and continuity and the desirability of growth and development of law.
c
Reversing
.
a
Reversing is the overturning on appeal by a higher court, of the decision of the
court below that hearing the appeal. The appeal court will then substitute its
own decision. m
Non speaking order a
yn
Non speaking order dismissing special leave petition would not constitute
binding precedent as to the ratio of the High Court involved in the decision
d
against which special leave petition to appeal was filed. (Ajit Kumar Rath v/s
tu
State of Orissa (1999) 9 SCC 596)
on facts
S
If a judgment is rendered merely having regard to the fact situations obtaining
therein , the same could not be declaration of law within meaning of Article
141.(UP State Brassware Corp. Ltd v. Uday Narain Pandey AIR 2006 SC 586
;(2006)1 SCC 479)
There is nothing in the Constitution which prevent the Supreme Court from the
reversing its previous decision. (State of West Bengal v. Corporation of
Calcutta, AIR 1967 SC 997: 1967(2) SCR 170.)
Decisions per incuriam
Per incuriam is a doctrine often invoked in declining to follow a particular
decision for certain reasons. A judgment per incuriam need not be followed
as binding precedent.
Where ratio decidendi in a decision has been laid down in ignorance of the
provisions of the Act conferring jurisdiction, is not a binding precedent.
Where certain views are expressed without analyzing statutory provision it
cannot be a binding precedent and at the best it would be a decision per
incuriam.
A Judgment is per incuriam if it is rendered in ignorance of a binding
authority.
A judgment is per incuriam if it is rendered in ignorance of a statute or a
rule having the force of a statute.
yn
the declaration of the Bangalore Principles which deal with how national courts
should absorb international law to fill existing gaps and address uncertainties in
d
domestic law. The Bangalore principles have gradually found wide acceptance
tu
with judges in many jurisdictions looking towards the growing body of
S
international human rights law to streamline their domestic laws. This also
creates compelling reasons for constitutional courts in different jurisdictions to
look to each other’s decisions.
Courts in independent India have frequently relied on decisions from other
common law jurisdictions, the most prominent among them being of the United
Kingdom, United States of America, Canada and Australia. The opinions of
foreign courts have been readily cited and relied on in landmark constitutional
cases dealing with questions such as the ambit of the right to privacy, freedom
of press, restraints on foreign travel, the constitutionality of the death penalty,
broadcasting rights and prior restraints on publication.
Maneka Gandhi v. Union of India, case concerning restrictions on the issue of
a passport to the petitioner, the Supreme Court of India read in the ‘substantive
due process guarantee’ into the language of Article 21. Prior to this decision, the
Indian Courts had applied the lower threshold of ‘procedure established by law’
1
Reference: THE ROLE OF FOREIGN PRECEDENTS IN A COUNTRY’S LEGAL
SYSTEM Lecture at Northwestern University, Illinois (October 28, 2008) By Justice K.G.
Balakrishnan, Chief Justice of India
to evaluate the validity of governmental action that curtailed personal liberty.
This decision heavily drew from U.S. decisions and laid down the position that
governmental action was subject to scrutiny on multiple grounds such as
fairness, reasonableness and non-arbitrariness. By enumerating the theory of
‘inter-relationship between rights’ a foundation was laid for the creative
expansion of the ambit of Article
The decision in Sunil Batra v. Delhi Administration (II) prominently invoked
academic Edward Corwins’s writings on the Eighth amendment (‘right against
cruel and unusual punishment’) in order to implement reforms in prison
conditions. Reliance was also placed on a British parliamentary white paper
entitled “People in Prison”. In the said judgment, lower court judges were
directed to personally inspect their jurisdictional prisons once a week, receive
complaints from individual prisoners, take remedial measures and provide
grievance mechanisms that were easily accessible to all prisoners.
Freedom of speech and expression’, the Indian Courts have repeatedly cited
decisions related to the First Amendment to the U.S. Constitution. In Indian
Express Newspapers v. Union of India, the Supreme Court held that the
imposition of a tax on the publication of newspapers violated the constitutional
right to freedom of expression, which also incorporates freedom of the press.
In a series of decisions invoking international legal materials, the Court has
articulated and expanded the ‘right to a healthy environment’ as an extension of
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the right to life and personal liberty. In Subhash Kumar v. State of Bihar, it was
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held that a slow, steady, and subtle method of extinguishment of the quality of
c
.
life, i.e. severe pollution - was violative of the right to life. Likewise, in
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Virender Gaur v. State of Haryana, it was reiterated that Article 21 includes a
right to a clean environment. In M.C. Mehta v. Union of India, the Court
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discussed several provisions of the 1972 United Nations Stockholm
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In the realm of gender justice it is important to mention the decision in Vishaka
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v. State of Rajasthan. This litigation originated on account of the gang-rape of a
social worker and the Court proceeded to frame guidelines for the prevention of
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and redressal for sexual harassment at the workplace. This act of ‘judicial
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legislation’ was prompted by the absence of any statutory law on the point and
extensive reliance was placed on the provisions of the Convention for
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Elimination of all forms of Discrimination Against Women (CEDAW).
31. PRESUMPTION-I
Legal Roots of Presumption
• A presumption in the ordinary sense is an inference; it comes into operation
only in the absence of relevant information or evidence, is an anticipation of
something yet unproved. It is tentative and provisional rather than absolute and
final.
• A presumption may be defined to be an inference required by a rule of law
drawn as to the existence of one fact from the existence of some other
established basic facts-it is a true presumption of fact in the sense that another
fact is assumed from established facts. It is a presumption of law in the sense
that a rule of law requires the assumption to be made.
• Acc. to Stephen’s language, “a rule of law that courts and judges shall draw a
particular inference from a particular fact, or from particular evidence, unless
and until the truth of the evidence is disproved”
Examples:
a. the person accused of a crime is innocent
b. that the child born in wedlock is legitimate, as is one born within eleven months
of the husband’s death.
c. that a person missing for seven years or more is dead
d. that young children (under the age of seven) cannot commit a felony.
e. That a document over 30 years old is genuine.
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principle expressed in the maxim: ut res magis valeat quam pereat”
• Court while pronouncing upon constitutionality of a statute start with a
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presumption in favour of constitutionality and prefer a construction which keeps
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the statute within the competence of the legislature.
• Farwell, J “Unless the words were so absolutely senseless that I could do
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nothing at all with them, I should be bound to find some meaning, and not to
declare them void for uncertainity”.
• Acc. to Holmes, J., “the rule requires that “the statute must be construed in
such a way as not merely to save its constitutionality but so far as it is
consistent with fair interpretation, not to raise grave doubts on that score”.
• If certain provision of law construed in one way would make them consistent
with the constitution, and another interpretation would render them
unconstitutional, the court would lean in favour of the former construction.
Limitations of the rule
Delhi Trasnsport Corn. V Dtc Mazdoor Congress, AIR 1991 SC
Delhi Road Transport Authority Act, Regulation 9(b) conferring unrestricted
power to terminate the service of a permanent or confirmed employee and
expressed in unambiguous terms, was not read down to save it ad was declared
ultra vires offending Article 14 and 21 of the constitution.
Severability
When a statute is in part void, it will be enforced as against the rest, if that is
severable from what is invalid.
Following are the rule of construction of severability
a. In determining whether the valid parts of a statute are separable from the invalid
parts thereof, it is the intention of the legislature that is the determining factor.
b. If the valid and invalid provisions are so inextricably mixed up that they cannot
be separated from one another, then the invalidity of a portion must result in the
invalidity of the Act in its entirely.
c. Even when the provisions which are valid are distinct and separated from those
which are invalid, if they all form part of a single scheme which is intended to
operate as a whole, then also the invalidity of part will result in the failure of the
whole.
d. What is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of the legislature,
then also it will be rejected in its entirely.
e. If after the invalid portion is expunged from the statute what remain cannot be
enforced without making alternations and modifications therein, then the whole
of it must be struck down as void.
f. While determining the legislative intent on the question of separability, it will
be legitimate to make into account the history of the legislature, its object, the
title and the preamble to it.
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to take the word themselves and arrive, if possible, at their meaning, in the first
instance, reference to the cases.”
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III.
n
Presumption that literal meaning to be followed
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d of the case is ambiguous, then any of the possible
When the literal meaning is straightforward. If the grammatical meaning when
grammatical u
applied to the facts
t meaning that could be accorded to be statute may be described as
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the literal meaning.
Courts of law have to presume that the particular of law is intra vires and not
ultra vires.
Presumption of constitutionality burden on one who attack it
IV. Presumption that rectifying construction to be given:
It is always presumed that the legislator intends the courts to apply a
construction which rectifies any error in the drafting of the enactment, where it
is required in order to give effect to the intention of the legislator.
R v Moore.
In this case it was held that, the court is presumed not to rely on the drafting of
the enactment if any error is apparent and by means of such error the intention
of the legislature is defeated. In such cases, the interpreter may deviate from the
drafting of the statute and provide an interpretation that rectifies any such error.
The language of the legislature must be modified, in order to avoid
inconsistency with the manifest intentions.
The reason behind such presumption being that any person should not take any
undue advantage of the errors in drafting by defeating the intent of the
legislature.
VI. Presumption that the court is to apply remedy provided for the ‘mischief’
The legislature intends the interpreter, in construing the statute, to endeavor to
apply the remedy provided by it in such a way as to suppress the ‘mischief’.
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32. PRESUMPTION-II
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.
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VII. Presumption that enactment to be given a purposive construction
The statute, with the aim of suppressing the mischief, must advance the remedy
which is indicated by the words of the m statute for the mischief being dealt with,
and the implications arising from athose words, should aim to further every
The construction of the
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aspect of legislative purpose.
y statute which cures a particular mischief and promotes
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the remedy as provided by the legislature is known as purposive construction.
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While construing an enactment, it is presumed that the enactment shall be given
X. Presumption that the words in a Statute are used precisely and not
loosely
The general rule used in holding such presumptions is verbis legis non est
recedendum- You must not vary the words of a statute.
The interpreter must not make any interpretation contrary to the express words
of an enactment.
In the case of Spillers Ltd. v Cardiff (Borough) Assessment Comm it was
observed by Lord Hewart, C.J.-
“It ought to be the rule and we are glad to think that it is the rule that words are
used in an act of Parliament correctly and exactly and not loosely and
inexactly.”
XI. Presumption that vested rights are not taken away without express words or
necessary implications or without compensation:
A statute generally, is not given a retrospective operation to take away a vested
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right, except in such situations where in the intention of the legislature is to give
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retrospective effect to the enactment. Also, it is presumed that the interpreter
will not construe the statute in a manner as to deprive persons of their properties
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without payment of compensation unless such a conclusion is ineluctable.
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Inglewood Pulp Co. v New Brunswick Electric Power Commission, it was held-
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being litigated. When a statute deprives a person of his right to sue or affects
power or jurisdiction of a court in enforcing the law as it stands, its
retrospective character must be clearly expressed.”
XII. Mens Rea is generally required for a criminal act:
It is always presumed that an interpreter of a statute must not find a man guilty
of any criminal act unless the person is proved to have a guilty mind.
Actus non facit reum nisi mens sit rea. In the case of Brend v Woo, Lord Chief
Justice of England observed:
“It is in my opinion of the utmost importance for the protection of the liberty of
the subject that the court should always bear in mind that, unless the statute,
either clearly or by necessary implication, rules out mens rea as a constituent
part of crime, a defendant should not be found guilty of an offence against the
criminal law unless he has got a guilty mind.”
It is thus presumed that the requirement of the mens rea (guilty mind) is a must
for convicting a person of a criminal offence.
The plain words of the statute are read subject to the presumption that no crime
can be committed unless there is mens rea.
Such a measure is resorted to in public interest and moral justification of laws
of strict liability. Offences of strict liability do not violate the principle of fair
procedure and the principle that everyone charged shall be presumed to be
innocent until proven guilty according to law.
XIII. Presumption government bound by the statute/ Statute affect the State
Since a law is passed by the crown for its subjects, there is a presumption that a
statute does not bind the crown. The crown, by passing a statute, does not wish
to harm his own interest nor does he wish to interfere with his own rights.
Therefore, the normal presumptions that the crown is not bound by a statute
unless so is provided by express terms of the statute or by necessary
implication.
According to Maxwell, this presumption extends to the Crown’s servants and
agents also but there are many persons and bodies whose position as servants or
agents of the crown is not altogether clear and their liability depends on the
nature of the function performed by the person or body in question.
Maxwell states that the Crown may be held to be bound by a statute in the
following four cases-
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a. Where the crown is clearly bound by a provision in which it is expressly stated
to be bound under statute;
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b. Where the intention to bind the crown is manifest;
.
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c. Where the prerogative, rights or property of the crown are not in question; and
d. Where a statute is for advancement of religion or learning and for the
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maintenance of the poor; or for suppression of wrong, or for performing the will
of a donor. a
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By the passage of the Crown Proceeding Act, 1947 the area of liability of the
Crown has been widened very considerably.
d
In India, the question whether the state is bound by a statute or not does not
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seem to be clear beyond doubt. The Supreme Court till 1964 had consistently
been deciding following the English Presumption, that the State is not bound by
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a statute unless expressly named therein or included by necessary implication.
But the position seems to have changed since 1967. Since that year Supreme
Court has been holding that the presumption under English law is not applicable
in India.
It is always presumed that the government is also bound by a statute unless
excluded expressly or by necessary implication
In the landmark judicial decision of K. M. Nanawati v State of Bombay, it was
observed that-
“The State is bound by the Code of Civil Proceeding , the scheme of the code
being that subject to any special provision made in that regard, as respects
governments, it occupies the same position as any other party to a proceeding
before the court.”
Thus, the state is presumed to be bound by the law unless it has been expressly
intended by the legislators not to be bound by the law.
Samatha v. State of Andhra Pradesh, AIR 1997 SC.
Section 3(1)(a) of the Andhra Pradesh Scheduled Area Land Transfer
Regulations, 1959.
Under this provision no ‘person’ is authorized to transfer any land in the
scheduled area to a non-tribal person. The Supreme Court while interpreting the
word ‘person’ in this provision held that the ‘government’ is also included
within the word ‘person’ and as such even the government cannot transfer land
in the scheduled area to a non-tribal person.
Satya Narain v. Distt. Engineer, AIR 1962 SC
It has been held that Roadways Deptt. Of the State was liable to pay toll tax
under section 15, Northern India Ferries Act, 1876.
XIV. Presumption that the jurisdiction of the courts is neither enlarged nor
decreased
There is a strong presumption that statute should not be construed so as to take
away the jurisdiction of superior courts, or so as to extend that jurisdiction by
giving a right of appeal.
For example, there is a strong presumption that civil courts have jurisdiction to
decide all questions of civil nature. The exclusion of jurisdiction of civil courts
is therefore not to be readily inferred. There can be any such exclusion of
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jurisdiction only when the same is either “explicitly expressed or clearly
implied.
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.
The jurisdiction is bestowed in a court by a legislation, legislation alone can
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take away the same. The parties to a dispute can neither create by mutual
consent jurisdiction of court to try their dispute nor can they take it away by
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mutual consent if in fact a court is vested with jurisdiction in the matter. Mutual
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consent of the parties, can create an arbitrator and the arbitrator may be a judge
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also.
The basis of such a principle is that the law presumes that a remedy in the
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ordinary civil courts must always be available to a citizen unless a contrary
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intention unmistakably appears from the terms of a statute.
According to such presumption of legislation a jurisdiction of a court can be
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enlarged only where the legislator has expressly intended to do the same. The
creating of new jurisdiction or enlarging the existing ones cannot take place by
means of any sort of implication but only through express language of the
legislator.
Legislation that gives jurisdiction to subordinate courts, tribunals and
government agencies must be strictly construed and the procedure prescribed by
the legislation, if any should be strictly adhered to in the judicial interpretation.
According to such presumption of legislation a jurisdiction of a court can be
enlarged only where the legislator has expressly intended to do the same.
The creating of new jurisdiction or enlarging the existing ones cannot take place
by means of any sort of implication but only through express language of the
legislator.
In Coljax Laboratories Ltd (1) v. State of Goa, (1995) Goa LT 325.
It was held that the court will not favour an interpretation which has the effect
of taking away the jurisdiction of the competent authority, unless the same is
expressly provided for in law.
XV. Presumption against the ouster of Jurisdiction
If a statute purports to exclude the ordinary jurisdiction of civil courts, it must
do so either by express terms or by the use of such terms as would necessarily
lead to the inference of such exclusion.
When the language is doubtful, the courts will lean against an ouster of the
jurisdiction of the ordinary courts, except in cases which are clearly and
specifically indicated by the legislature.
It is an accepted principle of statutory interpretation that when a right of suit is
taken away and the remedy by way of application is substituted, the prohibition
in regard to the filing of the suit should be read as co-extensive with the remedy
that is provided.
33. PRESUMPTION-IV?
Statute affecting the crown or the state
Rule of English law is that no statute binds the crown unless the crown is named
therein either expressly or by necessary implication because a statute is
presumed to be enacted for the subject and not for the King.
Extension of the rule to all those officers of the state and their subordinate’s
who perform pursuant to statutory authority.
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Common law rule that the crown was not bound by a statute unless named
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expressly or by necessary implication applied to India before the constitution
came into force. (Bombay Province v. Bombay Municiapal Corporation AIR
1947 PC 34) .
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State of W.B V. Corporation of Calcutta, AIR 1967 SC
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All general rules apply to citizens as well as to state unless it express or by
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necessary implication exempts the state from its operation.
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In view of Article 285 of the Constitution of the Union is exempt from taxation
imposed by a state law unless the Parliament provides otherwise.
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Article 289 which relates to exemption of property of a State from Union
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taxation have no application to indirect taxes such as custom duty, central
excise duty, sales tax etc. The Union is therefore liable to sales tax under a State
Act.
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The municipal corporation cannot evades the ban of Article 285 and tax union
property by levying service charges for water, electricity supplied and drainage
and roads provided to posts and telegraph buildings.
LDA V.M.K Gupta, AIR 1994 SC
Consumer Protection Act, 1986 applies to a statutory authority and a
Government or semi-Government body or a local authority in the same way as
it applied to private bodies for the act does not expressly or impliedly indicate
that these bodies are excluded from the purview of the Act. Article 285 of the
Constitution provides that property of the Union is exempt from taxation
imposed by a state law unless the Parliament provides otherwise.
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provisions of the municipal law to be in harmony with the international law or
treaty obligation.”
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Regard to International Agreements or conventions and international law
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Regard was given to art. 11 of the International Covenant on Civil and Political
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Rights which provided that no one shall be imprisoned merely on the ground of
inability to fulfill a contractual obligation and this Article greatly influenced the
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court in giving a limited meaning to S. 51 and O 21,r 37 of the CPC.
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In Nilabati Behra v. State of Orissa AIR 1993 SC
Art.9(5) of the International Convention on Civil and Political Rights was
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considered. Article 9(5) said that ‘anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compression’.
This article was referred to in support of the view that damages could be
allowed under art 32 and 226 of the Constitution for violation of the
Fundamental Right enshrined in Art. 21.
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surrounding circumstance retrospective effect should be given to it or not”
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34. PUNCTUATION
XI.Punctuation
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England
• No punctuation in the manuscript copy of any Act which received the Royal
assent, the court cannot have any regard to punctuation for construing the older
Acts.
In Ashwini Kumar Ghose v. Arabinda Bose, AIR 1952 SC
J. B.K Mukherjea observed “Punctuation is after all a minor element in the
construction of a statute, and very little attention is paid to it by English Courts.
When statute is carefully punctuated and there is doubt about its meaning, a
weight should undoubtedly be given to punctuation-
I need not deny that punctuation may have its uses in some cases, but it cannot
certainly be regarded as a controlling element and cannot be allowed to control
the plain meaning of a text.”
In Mohd. Shabbir v. State of Maharashtra, AIR 1973 SC 1425
Sec. 27 of the Drugs and Cosmetics Act, 1940 came up for construction.
Section provides whoever ‘manufactures for sale, sells, stocks or exhibits for
sale or distributes’ a drug without a licence, is liable for punishment.
Question arouse before the court that whether mere stocking is an offence?
Held: Mere stocking is not an offence within the section but stocking for sale
could amount to offence because of the absence of comma after ‘stock’.
Supreme court pointed out the presence of comma after ‘manufactures for sale’
and ‘sells’ and absence of any comma after ‘stocks’ indicates that mere stocking
is not an offence within the section. It was, therefore held that only stocking for
sale could amount to offence and not mere stocking.
While marks of punctuation contained in a statute will not generally be wholly
ignored by the court in interpreting a statutory provision, it may not always be
safe to rely on punctuation as a deciding factor.
I. Reading Down:
Where general language in a statute which is literally apt to extend beyond the
power of the enacting legislature will be construed more narrowly so as to keep
within the permissible scope of power.
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Where there are two interpretations, one wide and unconstitutional bounds, the
court will read down the overflowing expressions to make them valid.
.
The technique involves choice of valid but limited meaning as against invalid
but overbroad meaning. a
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This rule is based on constitutionality of legislation and tries to balance between
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legislative autonomy and constitutionalism.
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Reading down is not redrafting, but it is narrowing the reach of the statute for a
constitutional survival.
d
In R.M.D.C, While dealing with the constitutionality of the Prize Competition
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Act, meaning of its definition was restricted to competitions of gambling nature
by applying the reading down rule, to save its constitutionality.
II. S
Reading Up
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that enhances the statute of legislation towards validity.
Reading up set afoot in Canada after the commencement of the Constitutional
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Charter of Rights and Freedoms 1982. Thus reading p has shown potentiality
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for judicial activism in the context of Charter issues.
III. Reading in yn
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Reading in of constitutional values, especially preamble, Directive Principles of
State Policy, inter-relationships of fundamental rights is done and extrapolation
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of legislative spirit is made.
Govid v. State of MP
Interaction of Art. 14, 19 and 21 and reading in of Part IV values synthesized
this development.
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The Court proceeded to analyze the inter-dependence between Art. 19(1)(g)
and 21 and supportive character of rule of law under Art. 14 was read into Art.
21. d
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In this particular case extensive reference was made to international
conventions and provisions of CEDAW, Fundamental duty of respect for
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women was also looked into.
On the above basis guidelines and norms against sexual harassment in
workplace were laid down for due observance in all workplaces and institutions
until a legislation is enacted for the purpose.
Concluding observation
By and large, Indian judicial activism came as a big boon for human right
values and social welfare causes.
While reading down helps in balancing between legislative choice and
constitutionalism,
Reading up enables infusion of constitutional values and safeguards into the
legal norms.
Both avoids judicial confrontation with legislature and substantial and at times,
reasonably modify the legislative policy.
One striking feature of reading down or reading up cases is that judiciary
immensely makes use of information process by referring to various
commission reports and extensively relies an international human rights norms
to deal with policy arguments. This has moulded the methodology of reading
techniques
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The principle should be followed in avoiding a head on class where there
.
A familiar approach in all such cases is to find out which of the two apparently
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conflicting provisions is more general and which is more specific and to
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construe more general one as to exclude the more specific. Apart from resolving
a
conflict between two provisions in the act, the principle can also be used for
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resolving a conflict between two provisions in the act and rule made under the
act.
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Text of the entire Act and context of the case must be looked into while
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interpreting any expression used in such statute. Court must also look to the
object which the statute wants to achieve.
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The provisions of a statute should be so read as to harmonize with one another
and not to defeat those of another unless it is impossible to reconcile them.
Case law Reference
Sri Venkataramana Devaru V. State of Mysore, AIR 1958 SC 255
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(Development and Regulation) Act, 1951 under Entry 52 of the Central List
dealing with Industries.
d
Entry 24 of the State List cover entire industries in the state. Entry 25 of
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the State List is limited to only the Gas Industry. Therefore, Entry 24 covers all
industries except gas industry which is specifically covered by Entry 25.
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Corresponding to Entry 24 in the state list is Entry 52 in the Union List.
Held: Harmonious construction suggests that Gas industry is exclusively
covered under Entry 25 of the State List over which the State has full control.
The state is, therefore, fully competent to make laws in this field.
Legislature of a State has the exclusive power to make law in respect of
gas industry by virtue of entry 25 of List II, and that entry 24 does not
comprehend gas industry. The expression "industry" in entry 52 of List I bears
the same meaning as that in entry 24 of List II, with the result that the said
expression in entry 52 of List I also does not take in a gas industry. If so, it
follows that the Central Act, in so far as it purported to deal with the gas
industry, is beyond the legislative competence of Parliament.
Commissioner of Sale Tax, Madhya Pradesh, Indor v. Radha Krishna AIR 1979
SC
In spite of repeated demand notices by the Sale Tax Officer, the acessee firm
did not pay the tax
Criminal prosecution of the respondent partner was sanctioned by the
commissioner under Sec. 46(1)(d) of M P General Sale Tax Act 1958.
The respondent challenged the validity of the provision on the ground that there
were two separate provisions,
Section 22(4-A) and 46(1)(C) under the Act. Under which different procedure
were prescribed to realize the amount due but there was no provision of law
which could tell as to which procedure was to be followed in which case.
Held: Supreme held that a reading of the two provisions reveals that out of two
the procedure prescribed under Sec. 46(1)© was more drastic.
A harmonious interpretation of the two provision that there was a judicial
discretion with the commissioner to decide as to which procedure was to be
followed in which the case. If the commissioner failed to act judicially while
choosing the procedure the court had a right to intervene.
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circumstances in which the statute was passed.
Special rules for interpretation of constitutions
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• Constitution’s link with community and its emergence from the
tu collective consciousness of the community.
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he Central Exercise and Salt Act, 1944 and Customs Act, 1962 can be said to
have laid down by majority the following general propositions:
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• A claim for refund of tax on the ground that it has been collected by
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misinterpretation the provision of taxing act has to be prepared under the
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authorities constituted under the Act and no suit is maintainable in civil court.
• Where refund is claimed on the ground that provision of the act under which it
was levied is unconstitutional, claim can be made by suit/write
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jurisdiction in respect of any matter connected with the disqualification of a
member of a House on ground of defection”
d
Court observed that if the power of judicial review is weakened, then it
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would adversely affect the system of justice whereby tribunals and other quasi-
judicial bodies could violate rules at will.
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The purpose of finality clause was clarified to prevent any further appeal but its
effect on the power of judicial review remains unfettered.
State of Rajasthan v. Union of India, AIR 1977 SC
Article 356(5) provides that order passed by the President under Art. 356
complete immunity from judicial scrutiny.
Held: Reviewable by the Courts if it was based on irrelevant considerations,
ulterior motives or was mala fide.
N. P Ponnuswami v. The Returning officer, AIR 1951
No election shall be called in question except by an election petition’’ in
Article 329 (b), and the point to be decided is whether questioning the action of
the Returning Officer in rejecting a nomination paper can be challenged only
after the culmination of election process.
HM Trivedi v. VVB Raju, AIR 1973 SC
It was held that entry of a person’s name in the electoral roll of a constituency
prepared under the Representation of the People Act, 1951, could neither be
challenged before the civil court nor before an election tribunal on the ground
that the person concerned was not ordinary resident in that constituency.
It was held that the authorities under the Act could conclusively decide the
question of ordinary residence.
Union of India v. Jyoti Prakash Mitter AIR 1971 1093 SC.
The question of jurisdiction of Higher Courts were raised again in this case.
When the finality of the President’s decision with regard to question of age of a
judge arose.
Article 217(3) specified that the President’s order shall be final with regard to
the determination of age of a judge of a High Court and excluded it from the
purview of judicial review.
The Supreme Court discussed the effect of the President’s decision on the
independence of Judiciary and observed that “Notwithstanding the declared
finality of the order of the President the court has jurisdiction in appropriate
cases to set aside the order, if it appears that it was passed on collateral
considerations or the rule of natural justice were not observed, or that the
president’s judgment was coloured by the advice or representation made by the
executive or it was founded on no evidence.
In Khemani Engineering Corporation v. General Manager, N.F Railway, AIR
2006 SC
The act in contention was Section 10 of the Public Premises (Eviction of
Unauthorized Occupations) Act, 1971 which conferred finality to the decision
of the Additional District Judge who had dismissed the appeals.
m
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The High Court relied on L. Chandra Kumar’s Case (AIR 1997 SC 1125) and
held that “the powers vested upon in the High Court rightly pointed out that
.
there is a difference between a court of appeal and a court of writ and held that
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even if a statute does not provide a right of appeal and declares certain orders to
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be final, the remedy of approaching this High Court in exercise of the power of
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judicial review under Article 226 of the Constitution would not be barred.
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Under Article 74 and Article 163 advice tendered by the Council of Ministers
to the President/Governor cannot be questioned in a Courts of Law. In spite of
d
constitutional finality attached to the statute, the court have interpreted the
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ouster of judicial review against the plain reading of the words to protect the
legitimacy of the institution of democracy and to prevent abuse of position and
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authority by Government and President.
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commencement this Act, in the urban area concerned."
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The High Court of Punjab held that the words ‘for his own use’ in cl (a)
permitted the landlord to claim eviction for his own used. Whatever may be the
nature of the use.
d
Supreme Courtu
t be read as a whole. Words ‘for his own used have been used in a
reserved the High Court’s decision and applied the principle that
Ssense and would mean that his own used could be only of or business
statute should
restricted
purposes as was clear clause (a) is read together with clauses (b) and (c).
Dr. Sanjeevayya v. Election Tribunal, AIR 1967 SC 773
The election of the appellant to the State Legislative Assembly was challenged
by a petitioner who prayed that he be declared elected in place of the appellant.
During the pendency of this petition, the appellant got elected to the Rajya
Sabha and so resigned from the Assembly.
In interpreting S. 150 of the Representation People Act 1951 which requires that
on the happening of a causal vacancy ‘the Election Commission shall, by a
notification in the official Gazette call upon the Assembly constituency to elect
a person for the purpose of filling the vacancy’.
The Supreme Court pointed out that the section cannot be read in isolation
without reference to Part III of the Act which prescribes the machinery for
calling in question the election of a returned candidate.
It was held that on a reading of all those provision together the duty of the
Election Commission to hold a bye-election on resignation of a member
imposed by S. 150 need not be discharged forthwith if the election of that
member has been called in question by an election petition in which the
petitioner has also claimed a relief that he should be deemed to be duly elected
and that election commission can await the final adjudication of the election
petition for if the petitioner succeeds in getting the declaration that he has been
duly elected, there would be no necessity of holding any bye-election
Alamghir v. State of Bihar, AIR 1956 SC 46
Appellant was charged with having committed an offence under section 498 of
the Indian Penal Code for detaining with him a married woman.
Accused stated that since the woman had come to live with him voluntarily
leaving her husband he could not have been said to have detained her.
Held: Supreme Court reading the whole section as a whole in context with the
entire statute and the surrounding circumstances stated that the word detention
would not be taken in its dictionary sense. Sec. 498 aims at protecting the rights
of a husband against anyone interfering with him by depriving him of the
company of his wife.
40.
3. STATUTORY INTERPRETATION IN LIGHT OF CHANGES IN
SOCIAL, POLITICAL, ECONOMIC DEVELOPMENTS AND
SCIENTIFIC INVESTMENT m
c o
A statute may be interpreted to include circumstances or situations which were
.
unknown or did not exist of the enactment of the statute.
a
Statute must be interpreted in the light of the legal system as it exists today.
Lord Bridge observed: “When a change in social conditions produces a novel
m
situation, which was not in contemplation at the time when a statute is first
a
enacted, there can be no a priori assumption that the enactment does not apply
yn
to the new circumstances, there is no reason why it should not apply”.
When in the changed circumstances the common law fiction that by marriage
d
the wife must be deemed to have irrevocably consented to sexual intercourse in
tu
all circumstances has been come anachronistic, the husband can be convicted of
rape under the Sexual Offences (Amendment) Act, 1976, if he has sexual
S
intercourse with his wife without her consent. (R v. R 1991) 4 All ER 481.)
R v. C, (2004) All ER
Change in social outlook has also resulted in the view that a man recklessly
infecting a woman or his wife with HIV even during consensual intercourse,
when the woman or wife did not know that the man was suffering from a
disease which could be transmitted by sexual intercourse, would be guilty of
inflicting grievous bodily harm under section 20 of the Offences against the
Person Act, 1861.
Anuj Garg v. Hotel Association of India, (2008) 4 SCC.
Section 30 of the Punjab Excise Act 1914 prohibited the employment of any
man under the age of 25 years or any women in any part of premises in which
liquor or intoxicating drugs were consumed by the public.
This law may be good having at that time, but having regard to the present
social conditions and equality to sexes guaranteed under the constitution, the
same was declared void.
The effect of change in social attitude bring about change in interpretation.
The word ‘Person’ under Sec.27 of the Representation of the People (Scotland)
Act, 1868 was held in 1901 not includes women thereby disentitling them to
vote. But Privy Council in 1929 overruling the said decision and held women as
eligible to contest as well as right to vote.
Change in social attitude towards homosexuals, two persons of the same sex
cohabiting and living together for a long time with mutual degree of
interdependence have been held as constituting a ‘family’. (Fitzpatrick v.
Sterling Housing Association LTD., (1994) All ER.)
Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) SCC
Where the Supreme Court opined that a ‘broad and expansive interpretation
should be given to the term wife in accordance with the spirit of the beneficial
provision i.e section 125 of the Code of Criminal Procedure. In this case, the
court declared that if a man and woman live together for a long time, as
husband and wife, without valid marriage rites, a presumption of marriage
would still be made so as not to deny the woman the benefit of maintenance.
Capturing the essence of statutory interpretation in light of socio-economic
changes, the court said:
“ We believe that in light of the constant change in social attitude and value,
which have been incorporated into the forward-looking Act of 2005, the same
needs to be considered with respect to Section 125 of Cr.P.C and accordingly, a
broad interpretation of the same should be taken”.
m
A Shift in social attitudes towards euthanasia can also be charted by studying
o
the move from the Gian Kaur v. State of Punjab 1996 SCC to the Aruna
c
.
Ramchadra Shanbaug v. Union of India & Ors. (2011) . In the Gian Kaur case,
a
the court look a very strict view of Art. 21 and said that the state has a duty to
protect life, and therefore could not legitimize ending it. But the court took
m
cognizance of growing literacy and a changing social view point towards mercy
a
killing in the Aruna Shanbaug case. It interpreted the same Article 21 to say that
yn
it gives the right to live with human dignity. The court differed in its
interpretation of the same Article done in 1996 and lay down guidelines for
passive euthanasia.d
tu
General words are construed to include new inventions and technological
advances not known at the time when the act was passed
S
It has been held that telephone is ‘telegraph’ within the meaning of that word
in the Telegraph Acts, 1863 and 1869 although telephone was not invented in
1890.
Definition of ‘telegraph’ in the Indian Telegraph Act, 1885 is wide enough to
take in electric lines used for the purpose of wireless telegraph.
The word ‘handwritten in section 45 of the Evidence Act, 1872 will embrace
typewriting.
State of Maharashtra D. Dr. Praful B. Desai, AIR 2003 SC 2053
Whether evidence in a criminal trial could be taken through video-conferencing,
with reference to section 273 of the Cr.pc
Held: Keeping inn view of advances in science and technology ought to be
applied to it, thereby holding that evidence of a witness taken through video-
conferencing would satisfy the requirements of evidence taken in the presence
of the accused.
Liberal construction is given so as to include within its ambit the future
developments in various fields of human activity.
M.C Mehta v. Union of India AIR 1987 SC
In this case, the SC evolved the principle of absolute liability and differentiated
it from the tortuous principle of strict liability expressed in Rylands v. Fletcher
(1868) while evolving this doctrine, the court observed that:
‘This rule evolved in the 19th Century at a time when all these developments of
science and technology had not taken place cannot afford any guidance in
evolving any standard of liability consistent with the constitutional norms and
the needs of the present day economy and social structure. We need not feel
inhibited by this rule which was evolved in this context of a totally different
kind of economy. Law has to grow in order to satisfy the needs of the fast
changing society and keep abreast with the economic developments taking
place in the country.
Vineet Narain v. Union of India AIR 1998 SC
Supreme Court virtually look away the power of superintendence over the CBI
vested in the Central Government under section 3 of the Delhi Police
Establishment Act, 1947, without holding it ultra vires, and transferred to it to
the Central Vigilance Commission which was directed to be given a statutory
status.
Prakash Singh v. Union of India AIR 2006 SCC
The task of extensive police reform was undertaken by the Supreme Court to
insulate police machinery from outside interference and detailed directions were
m
issued to that end which indirectly require repeal of the India Police Act, 1861.
Seema v. Ashwani Kumar AIR 2006 SCC
c o
.
The court noticed that though India was a signatory to the Convention on the
a
Elimination of All Forms of Discrimination against Women and also ratified the
convention.
m
The court held that “in the interest of society” marriages are made compulsorily
registered. a
yn
Justice Bhagwati in the case of National Textile Workers' Union v. P.R.
d
Ramakrishnan, (1983) 1 SCC 228, at page 256, need to be set out. They are:
tu
"We cannot allow the dead hand of the past to stifle the growth of the living
present. Law cannot stand still; it must change with the changing social
S
concepts and values. If the bark that protects the tree fails to grow and expand
along with the tree, it will either choke the tree or if it is a living tree, it will
shed that bark and grow a new living bark for itself. Similarly, if the law fails to
respond to the needs of changing society, then either it will stifle the growth of
the society and choke its progress or if the society is vigorous enough, it will
cast away the law which stands in the way of its growth. Law must therefore
constantly be on the move adapting itself to the fast changing society and not
lag behind."
yn
to the case at hand.
Textualism seems to maintain that if the legislature is unhappy with the
d
particular judicial result, it can always rectify the situation by legislative
tu
amendments that .
The more legislators will realize that courts will not correct drafting error and
S
thus law makers will become more vigilant and meticulous when drafting
legislation.
Primus agrees that textualism promises transparency as then anyone can know
the law by merely reading the text. Interpreting text means understanding it
according to its original meaning
Critics
The moral obligation of the court is first and foremost to do justice to the
litigants in from of them, and to the extent their rulings have the force of
binding precedent, court duty is to make the law the best it can be.
Textualism is bound to fail on its own terms; it is bound to be flip-flop theory,
one that cannot be applied consistently across the board. Textualism is thus
inherently deceptive and consequently immoral.
The textualist approach is premised on the exclusive validity of the statutory
language as the source of legislative intent. Textualists believe that statutory
language is the source of judicial power and the only legitimate object of
judicial concern. One of the cardinal rule applied by textualists for statutory
interpretation is the ‘Pleain Meaning Rule’
II. Intentionalism
When a statute gives rise to different meaning then the real intention is to be
sorted out.
According to William Eskridge, Philips and Frickey views that legislative intent
is not only a collective intent but also a coincidence of at least two different
collective intents, that of the senate and the house.
Roscue Pound emphasizes that the object of genuine interpretation is to
discover the rule with which the law maker intended to establish, to discover the
intention with which the law maker mad the rule or the sense which he attached
to the words wherein the rule is expressed.
Legislatures say that an interpreter’s role is to give a statute the meaning most
consistent with their intention,
Interpreter should follow the intent that was actually manifested, unless it would
lead to an absurd result.
tu
fulfils its changing and newly developing (essential needs of people is
different).
S
One argument favour to intentionality and other one to fill gaps
The well-established cardinal principle of statutory interpretation is that the
‘plain, literal and original’ meaning is to be awarded to the words in the statute.
Where such interpretation results in absurdities and creates immense difficulties
in law, other cannons of interpretation are to be resorted to.
When a judges interpret a statute in common law, they are inclined not only to
interpreted it in light of precedents and historical developments, but also in
cultural, political, economic and technical advances being made in the society.
This is to say that the judiciary by giving dynamic statutory interpretation-fills
in the lacuna in the law which came up due to the changing circumstances,
however many have criticized this rule and alleged that a misguided application
of the same, largely due to judicial hyper activism can result into difficulties
such as betraying the intent of the legislature behind the enactment of the
concerned act or policy etc.
What purpose is served by the theory of dynamic statutory interpretation?
A rational society, as the law always presupposes, will desire that the ongoing
statute shall be construed in such a manner that takes the society forward, not
backwards
Pedantic interpretation can render a statute obsolete has been expressed by
eminent judges since the second half of the 19th Century.
Ex: when the negotiable instrument act, 1881 came into force, notice writing
was meant to be construed literally only. However with the invention of fax
machines, notices corresponded through these machines were also brought
under the purview of notice in writing.
Such an illustration and interpretation affirms that view that “words cannot be
static vehicles of ideas or concepts.
This cannon of law provides interpretative guidance to the judiciary in coming
up with the best possible solution to the problem at hand and the most coherent
decision which the legislators could have intended.
Dynamic theory presupposes that the judicial organ of country is abreast with
the contemporary world by taking into account the technological, political,
economic and social advancements that have been taking place.
Immanuel Kant, a famous German philosopher, went a step further and claimed
that “even permanently unalterable laws should not be allowed to hold back
progress”
Ronald Dworkin who argued that statue should change as “law’s integrity”
develops and changes. m
o
To arrive at a best decision/fair or effective justice delivery mechanism cannot
c
.
be accomplished by recreating past events and fulfilling past expectations rather
a
it is the current web of beliefs and policies surrounding the statue” the guide
the judicial fraternity to arrive at the best decision in consonance with not only
m
the original intent but also present needs.
School Board v. Arline, SC USA a
yn
Person with contagious diseases like tuberculosis was handicapped to receive
the benefits accorded to “handicapped person” within the meaning of the
d
Rehabilitation Act 1973.
tu
In India similar approach has been followed by the judiciary in National Taxtile
Workers’ Union v. P. R Ramakrishn, AIR 1983 SC
S
While concluding Video conferencing would meet the requirements under sec.
313 of CrPC( which mandated the physical presence of the accused), said that
the aforementioned section was to be considered in the light of the
revolutionary changes in technology, communication and transmission and the
marked improvement.
Constitution is a living document, expanded the scope of art. 21 to ensure that
judicial system of India grows with the changes that the country was witnessing
Problem with the dynamic theory
Many academicians and opponents of Dynamic theory have contended that by
resorting to this method, the judiciary has overstepped the role that was
apportioned to it by the constitutional scheme, especially when it comes to India
This is to say that the judiciary has encroached upon the power, authority and
responsibility that was awarded to the parliament.
Judicial activism and judicial overreach as the judiciary has been accused of. Or
judicial hyper activism.
Opponent of dynamic theory four another arguments that this theory often
ignored the historical legitimacy of originalism.
No finality inconsistent do arises.
Isolated and unelected judiciary.
yn
changed, the interpretation should also change”.
Wikipedia can be considered as an external aid to interpretation of statutes. Its
d
position in the process of interpretation is akin to that of Dictionaries or
tu
Encyclopaedias – an accepted external aid to interpretation.
Wikipedia describes itself as a “multilingual, web-based, free-content
S
encyclopedia project.
Wikipedia describes itself as a “multilingual, web-based, free-content
encyclopaedia project”. It functions as the collaborative work of thousands of
volunteers, each of whom contributes to it gratuitously. Articles can be freely
edited by any person with access to the internet, without discrimination between
experts and laymen. As a result, it accepts that “articles may contain
misinformation, un-encyclopaedic content, or vandalism”.
The Supreme Court first referred to Wikipedia in the case of Commissioner of
Customs v. C-Net Communication (I) Pvt. Ltd. (2007 (11) SCALE 492) The
case concerned the duty leviable on a ‘signal decoder’ – whether it was covered
by the term ‘reception apparatus for television’, or was a part ‘suitable for use
solely or principally with the apparatus’. The Court referred to the Dictionary of
Computers and Wikipedia to glean the nature of a ‘decoder’. It came to the
conclusion that a decoder was absolutely essential to the television apparatus,
and hence, would fall within the ambit of the phrase ‘reception apparatus for
television’. Though it did not discuss the value of Wikipedia as a source, the
Court based its decision partly on it.
The question of Wikipedia’s reliability was further considered in the case of
Ponds India Ltd. v. Commissioner of Trade Tax. 2008(8) SCC 369
Here, the question was whether petroleum jelly or Vaseline was taxable as a
‘drug’ or ‘cosmetic’ under the U.P. Trade Tax Act, 1948. Though it had
previously been assessed as a drug, the Revenue contended that it had no
curative value and hence, must be considered a cosmetic. For this purpose, it
relied upon Wikipedia, which stated that modern discoveries had taken a limited
view of its curative properties. The Court observed that,
Wikipedia, like all other external aids to construction, like dictionaries etc, is
not an authentic source, although the same may be looked at for the purpose of
gathering information. Where an express statutory definition of a word exists, a
Wiki definition cannot be preferred. It cannot normally be used for the purpose
of interpreting a taxing statute or classification of a product vis-a-vis an entry
in statute.” (Ponds India Ltd. v. Commissioner of Trade Tax, 2008 (8) SCC
369, at ¶24.)
In Cochin Cadalas (P) Ltd. v. State of Kerala, MANU/KE/0197/2008. The
court relied solely on the Wikipedia definition of ‘craft paper’ to determine
whether it was taxable as ‘paper’ or a ‘paper product’.
In State of Kerala v. Sterling Farm Research Service (P) Ltd., 2008 (3) KLJ
375, The Court relied only on the Wikipedia meaning of ‘coir’ to evaluate its
m
biodegradability for the purpose of classification for taxation. In all these cases,
o
Wikipedia references formed a key part of the Court’s final decision
c
. inputs could be made by
a
Wikipedia, being an online encyclopedia where
anyone, was held to be not authentic. (Commissioner of Customs v. Acer
India(P) Ltd. 2008 SCC m
Website a
n
Material available on official websites may also be taken into consideration as
y sector undertaking
an external aid in interpretation of statutes. The Supreme Court, while
also, relied u
d
considering whether public included Government companies
a
the power of punishment has always been vested in the legislature and
yn
not the court’.
Acc to Halsbury’s Laws of England, clear language is a pre-requisite to
d
create a crime.
tu
A penal statute must be construed according to its plain, natural and
S grammatical meaning.
If the accused does not fall within the parameters of the offence
described in the statute, accused cannot be held liable.
Subject should not be free unless he can be found guilty according to the
clear and unambiguous language of the statute.
Penal statutes cannot extended by implication: no one can be brought
within a statute unless the case falls within the letter and the spirit of the
statutes.
Benefit to the subject in case of doubt and standards of compliance
Another accepted canon of interpretation is that a penal statute should be
construed strictly and that in case of doubt the benefit should go to the
subject.
If the section is ambiguous or susceptible of another construction, the
construction more favorable to the accused should be adopted.
According to Maxwell – “Penal law must be construed strictly. But it is paramount duty
of judicial interpreter to put upon the language of the legislature, honestly and faithfully
its plain and rational meaning and to promote its object”.
If two interpretation and reasonable construction can be put upon
a penal provision, the court must lean towards that construction
which exempts the subject from penalty rather than the one
which impose penalty.
If two possible and reasonable constructions can be put upon
penal provisions, the court must lean towards that construction
which exempts the subject from penalty rather than the one
which imposes a penalty.
It is not competent for the court to stretch the meaning of an
expression used by the legislature in order to carry out the
intention of the legislature.
Where two interpretation possible Penal provisions should be so
construed not to place a burden on the subject.
Prakash kumar v State of Gujarat (2005) 2 SCC 409
“Court cannot enlarge the scope of legislation or intention when the language of the
statute is plain and unambiguous”
m
o
charges should come within the words and within the spirit.
c
Tolaram v. State of Bombay AIR 1954 SC 496 .
a
Bombay Rents, Hotel and Lodging House Bates Control Act, 1947,
m
Section 18(1) of the provides;-
a
y
behalf............ receives any fine,
n
“If any landlord either himself or through any person acting or Purporting to act on his
premium or other like sum or deposit or any
d
consideration, other than the standard rent in respect of the grant, renewal or continuance
t
laid down in the section”
u
of a lease of any premises such landlord shall be punished with imprisonment of fine as
Held: S
Section envisaged the existence of a lease and the payment in respect thereof, did not
prohibit the taking of money by owner of an incomplete building in consideration of
binding himself by an oral agreement to grant a lease on completion of the building to
the person from whom the money was taken
The relationship of landlord and tenant does not come into existence till a lease comes
into existence.
London and North EasterN Railway Co. v. Berriman (1946 A.C)
The Railway Employment (Prevention of Accident) Act, 1900
Gave power to the board of trade to make rules ‘with the object of reducing or removing
the dangers and risks incidental to railway services’
One such rule: The railway companies to provide warning of approaching train to
workmen engaged in ‘relaying or repairing’ the permanent way
Question was whether a railway company was guilty for not providing look-out
precautions when some workmen, who were engaged in only ‘Cleaning and Oiling an
apparatus between the running lines were knocked down and killed by an oncoming
train.
Held: He had been involved in routine maintenance and oiling at the time of the accident
and was not ‘relaying or repairing’ tracks. Widow of diseased not entitled to
compensation.
Lord Porter said that the word ‘repair’ contains ‘some suggestion of putting right that
which is wrong’
M.V Joshi v. M.U Shimpi AIR 1961 SC1494
Appendix B, Rule A 11.05 framed under the Prevention of Food Adulteration Act, 1954,
Defined ‘Butter’ to mean ‘the product prepared exclusively from the milk or cream of
cow or buffalo or both’
Contention of the appellant was that butter made from curd is not covered und the rules
made under the act.
Held: In interpreting these rules the supreme court felt no doubt in holding that butter
prepared from curd, i.e., soured milk and cream also fell within the definition,
The court was bound to accept the expressed intention when the words were clear and
plain m
Prakash Kumar v. State of Gujarat (2005) SCC409
c o
.the court held that the more
Terrorist and Disruptive Activities (Prevention) Act, 1987
a
stringent the provision of law, the less discretion of the court. Stringent laws are made
for the purpose of achieving its objectives. m
a of the legislature is not frustrated.
If there is any doubt or ambiguity y n
It is the duty of the court to see that the intention
in the statutes, the rule of purposive construction
d
should be taken recourse to, to achieve the objectives
II. u
t The rule of strict construction of penal statutes as modified in
Modern view of Strict construction of Penal statutes
S modern times.
According to Maxwell observes: The rule of strict construction
in the case of penal statutes was more rigorously applied in
former times, and the tendency of modern decision, upon the
whole, is to narrow materially the difference between what is
called a strict and beneficial construction. The rule of strict
construction must yield to the paramount rule that every statute
is to be expounded according to its express or manifest intention.
All statutes are now construed with a more attentive regard to the language, and
criminal statutes with a more rational regard to the aim and intention of the legislature.
Penal statute should be construed to avoid a lacuna and to
suppress mischief and advance remedy in the light of the rule in
Hydon’s case.
M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC
Sec. 5(1) (d) of the Prevention of Corruption Act, 1947
Sec. 5(1)(d) provides that “a public servant is said to commit the offence of criminal
misconduct in the discharge of his duty, -
If he, by corrupt or illegal means or by otherwise abusing his position as a public servant,
obtains for himself or for any other person any valuable things or pecuniary advantage”
The contention – said clause did not cover the case of benefit which was not derived
from a third person, but was derived by causing loss to the government by abuse of
power.
Held: Comprehensive language used in the clause covered such a benefit and that the
wide meaning of the language could not be limited by construction as it well accorded
with the spirit of the statute.
Chitan J. Vaswani v. State of West Bengal, AIR 1975 SC 2473
Sec. 18(1) of the Suppression of Immoral Traffic Act, 1956
Authorizes a magistrate to direct eviction of an “occupier of premises within a distance
of two hundred yards of any public place if after notice and hearing the person concerned
the magistrate is satisfied that the premises are used as a brothel or for carrying
prostitution.
m
Sub section (2) of the same section empowered a court convicting a person of any
offence under section 3 or 7 to pass under
c o
Section 3 punishes person who keep brothels
.
a
Section 7 punishes prostitution in premises within a distance of 200 yards of specified
sensitive places.
m
a
Sub section 2 is not limited to premises within two hundred yards of any public place
yn
and it enable making of an order of eviction of the nature mentioned in sub-section (1) in
respect of all premises in respect of which conviction recorded under section 3 and 7.
d
Imp. Cases- tu
S
SP Choudhury v. state of Punjab