AL-AMEEN COLLEGE OF LAW

INTERPRETATION OF STATUTES

(IX sem 5years B.A.,LL.B & V sem 3years LL.B.)

Model Answer Paper 2018

ANSWER Q. 9 AND ANY 5 OF THE FOLLOWING:

1. WHAT IS LITERAL INTERPRETATION? EXPLAIN.

The literal rule is the primary rule which takes precedence over the others. Under this
rule the judge is asked to consider what the legislature actually says rather than considering what
it might mean. Words and phrases should be construed by the courts in their ordinary sense and
the ordinary rules of grammar and punctuation should be applied. In order to achieve this it is up
to the judge to give words in legislation their literal meaning even if, the effect of this is to
produce what might be considered as an unjust outcome, ie., effect should be given irrespective
of its consequences. Example- fisher v. bell, the shopkeeper had a flick knife on his shop
window with a ticket bearing words “ejector knife”. Under the restriction of offensive weapons
act 1959 sec 1(1), “it was illegal to manufacture, sell, hire, or offer for sale or hire or lend to any
other person any knife……” . the claimant alleged that the defendant shopkeeper had
contravened sec 1(1) by offering the flick knife for sale. It was held by the court that displaying
the knife was merely on invitation to treat, not an offer for sale and thus no liability arose. The
lack of the words “exposing for sale” in the restriction of offensive weapons act 1959 suggested
that only a true offer would be prohibited by the act.

This rule can be explained under the following head:

a) Natural and grammatical meaning: the words of a statute should first be understood in
their natural, ordinary or popular sense and phrases and sentences are to be construed
according to their grammatical meaning, unless that leads to some absurdity or object of
the statute suggests the contrary.
It there is no ambiguity and the intention of the legislature is clearly conveyed, the court
should give effect to it and not try to amend it.
 Ramavtar v. assistant sales tax officer, the act of sale of vegetable does not attract sales
tax. Therefore, when an assistant sales tax officer wanted to tax the sale of betel leaf, a
vendor objected on the ground that betel leaf was a vegetable. He claimed exemption. To
advance his argument, he relied on the dictionary meaning of vegetable in the Shorter
Oxford Dictionary and text books on botany. The SC did not accept the scientific or
dictionary meaning of the word vegetable and observed that it must be construed not in
any technical sense nor from a botanical point of view, but as understood in common
parlance. It held: It has not been defined in the Act and being a word of everyday use it
must be construed in its popular sense, meaning that sense which people conversant with
the subject matter with which the statute is dealing would attribute to it. It is to be
understood as understood in common language. In this view, betel leaf was not a
vegetable but a condiment. Not being a vegetable, it could not enjoy exemption from
sales tax.

The judgment lays down the basic principle that a vegetable is one that in market
parlance is known as such. This is the definition of vegetable for fiscal laws, but not so
for students of botany who would regard betel leaf as a vegetable. So the definition
depends upon who asks the question. For a botany student, betel leaf is a vegetable, but
not so for a tax collector. Therefore the sale of betel leaves was liable to sales tax.

b) Exact meaning preferred to loose meaning: it is presumed that words used in the statute
are used correctly and exactly and not loosely and inexactly. Example- the exact meaning
of the word contiguous is touching and whereas its loose meaning is neighboring.
Every word has a secondary meaning too. Thus court should be careful not to mix up
secondary meaning with the loose meaning. If secondary meaning points to that meaning
which statute meant then preference should be given to it only.
c) Technical words in technical sense-
(i) special meaning in trade, business etc- according to this words are to be understood in
their subject matter. Thus in case of legislation relating to a particular trade, business,
profession or science words having a special meaning in that context are understood in
that sense only. Example- the term “waist” are well known terms applied to a ship and
 nobody would think of their meaning to the waist of a person when used in a an act
which deals with ships.

(ii) legal sense of words-when words acquire a technical meaning because of their
constant use by the legislature in a particular sense or because of their authoritative
construction by superior courts, they are understood in that sense only when used in a
similar context in subsequent legislation.

2. WHAT IS A STATUTE? EXPLAIN THE EXTERNAL AIDS TO

INTERPRETATION.

A statute is the will of the legislature. It is derived from the Latin word “statutere” meaning
“to be made to sit up”. It is a formal expression in writing of the will of the legislature. It is
usually called an act of the legislature. A statute unless it is expressed to have a duration that
is temporary, never dies, though it may be amended or repealed.

There are aids for interpretation which are not part of the statute and these are known as
external aids. These external aids are relevant only when the language used in the statute is
not clear and two meaning are possible.

1) Dictionaries: usually a word would be defined under the definition clause of the
statute and the said word will have the same meaning for that word whenever it
occurs again in the act. But when a word is not defined in the act itself, it is
permissible to refer to dictionaries to find out the common parlance in which that
word is used. But again dictionary will have various meaning for that one word and in
selecting one out of the various meaning, regard must be given to the context in
which it s used in the act, because the expression must take colour from the context in
which they appear.
If plain reading of the provision brings out what was intended and there is no
ambiguity then dictionary meaning of a word is not considered. Ramavtar v.
assistant sales tax officer, the act of sale of vegetable does not attract sales tax.
Therefore, when an assistant sales tax officer wanted to tax the sale of betel leaf, a
 vendor objected on the ground that betel leaf was a vegetable. He claimed exemption.
To advance his argument, he relied on the dictionary meaning of vegetable in the
Shorter Oxford Dictionary and text books on botany. The SC did not accept the
scientific or dictionary meaning of the word vegetable and observed that it must be
construed not in any technical sense nor from a botanical point of view, but as
understood in common parlance. It held: It has not been defined in the Act and being
a word of everyday use it must be construed in its popular sense, meaning that sense
which people conversant with the subject matter with which the statute is dealing
would attribute to it. It is to be understood as understood in common language. In this
view, betel leaf was not a vegetable but a condiment. Not being a vegetable, it could
not enjoy exemption from sales tax.
2) Foreign decisions: in pre-constitutional period, reference to English decisions was a
common practice despite warning by the Privy Council. This practice is continued
even now to an extent. There is one qualification attached to the assistance of foreign
decisions that prime importance is always to be given to the language of the relevant
Indian statute, the circumstances and the setting in which it is enacted and the Indian
conditions where it is to be applied and there is always an element of risk in taking
ready and hasty assistance from foreign decisions.
3) Parliamentary history: the SC does use the aid of parliamentary history in resolving
questions of construction but its used within its circumspect limits only in resolving
ambiguities.
i. Bill- debates on a bill in parliament are not admissible for construction of the act
which is ultimately enacted. The speech only shows the subjective intent of the
speaker but it cannot reflect the inarticulate mental process lying behind the
majority vote which carried the bill. Nor it is reasonable to assume that the minds
of the legislatures were one in accord. But in Indra Sawhney vs UOI, SC referred
to Dr. Ambedkar speech in the constituent assembly for interpreting the
expression backward classes of citizens which is not defined in the constitution.
ii. Statement of objects and reasons- it can be referred only for understanding the
background, the antecedent state of affairs, the surrounding circumstances in
relation to the state of affairs and the evil which the statute was sought to remedy.
 It 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.
iii. Commissions/inquiry committees- reports of commissions or inquiry committees
preceding the introduction of a bill have also been referred to as evidence of
historical facts or of the surrounding circumstances or of mischief or evil
intended to be remedied and at time for interpreting the act. In Sodra Devi’s Case
in which income tax enquiry report was referred and in Express Newspaper’s
case, the press commissions report was referred.
iv. Parliamentary debates- this can be used as an external aid in interpretation but its
use is limited.
v. Letters- letter written by the law minister cannot be used as an aid. It cannot
override the statutory provision.
4) Historical facts and surrounding circumstances- the court is at liberty to look into the
history of the law, the circumstances which existed and which lead to the passing of
the law, the evil which is intended to remedy. Where it is important to ascertain
ancient facts of public nature recourse to historical works, documents and treaties
may be taken.
5) Text books- text book can be used to ascertain the true meaning of an enactment. But
it’s the discretion of the courts to accept or reject the views given in the text book.
Kesavanand Bharati vs State of Karnataka is one such case where a large number of
text books were quoted in arriving the decision.
6) Subsequent social, political and economic developments and scientific inventions:
this can be discussed under the following heading-
i. General act- a statute may be interpreted to include circumstances or
situations which were unknown or did not exist at the time of enactment of the
statute.
When a change in social condition produces a novel situation which was in
contemplation at the time when a statute is first enacted, there can be no prior
assumptions that the enactment does not apply to the new circumstances.
 Development in science and technology must be taken into consideration
while interpreting an ongoing statute.
Example- It has been held that telephone is ‘telegraph’ within the meaning of
that word in t he telegraph act 1863 and 1869 although telephone was not
invented in 1869.
ii. Constitutional acts- a constitution is intended as an enduring instrument, not
only designed to meet the needs of the day when it is enacted but also needs of
the altering condition of the future. Thus the language of the constitution is
given a liberal construction so as to include which in its ambit the future
developments in various fields of human activity and not just restricting the
language of the existing things at the time of passing the constitution.
Constitutional provisions are required to be understood and interpreted with
an object oriented approach. It should not be interpreted in a narrow and
pedantic sense. Every provision should be read harmoniously and purposively
and should not render another provision redundant.
The best example can be taken of article 21 of the constitution which
provides, no person shall be deprived of his life/personal liberty except
according to procedure established by the law. Now to this article 21 a whole
lot of human rights were deduced from art 21 like right to means of
livelihood, privacy, education and speedy trial etc.

3. STATE THE EFFECT OF REPEAL OF PERPETUAL AND TEMPORARY

STATUTES OF INTERPRETATION.
Effect of expire of temporary statutes:
When the duration of a statute is for a specified time it is temporary statute. 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 it on similar terms or
expressly saying that the expired act is herewith revived. The effect of expiry of
temporary statute can be discussed under the following sub headings-
1) Legal proceedings under expired statute- after the expiry of an act can the legal
proceedings under that act be initiated or continued? If that act has a saving clause
 its effect would be similar to Sec 6 of the General clause act which says repeal of
the statute shall not affect the legal proceeding. But if such saving clause is not
present than the proceedings started under the temporary statute would terminate
as soon as the statute expires. Thus in the absence of a saving clause no person
can be prosecuted/ convicted under the expired act and the on-going proceedings
will be terminated at once with the expiry of the temporary act. Rayala
corporation vs director of enforcement.
2) Notifications, orders, rules etc made under temporary statute- with the expiry of
temporary act, any notification, ordered or rules issued under it will also come to
an end and cannot be revived even if the provisions of expired act is re-enacted.
3) Expiry does not make statute dead for all purpose- even without the saving clause
the expiry does not make the statute dead for all purpose. The nature of rights and
obligations under the act has to be considered in determining whether such rights
and obligations are continuing after the expiry of the act or no. State of Orissa vs
Bhupendra Kumar, it was held that a person who has been prosecuted and
sentenced during the continuance of a temporary act for violating its provisions
cannot be released before he serves out his sentence, even if the temporary act
expires before the expiry of full period of the sentence.
4) Repeal by temporary statute- if a temporary statute repeals an existing statute, the
question which arises is if the repealing temporary statute expires will the
repealed statute revive? This will depend on the construction of the repealing
statute.

Mode of Repeal
Express Repeal and Repeal by implication
Repeal of a statute may be express or by necessary implication. There is no reason to restrict the meaning of the
word ‘repeal’ merely to an express repeal and to exclude the implied one.
Express repeal of a statute is usually made by stating that the earlier statute or a particular provision therein is
thereby repealed. Usually enactments repealed are mentioned in a schedule attached to the repealing statute. Such
express repeal needs no construction of the later statute. The use of any particular form of words is not necessary to
bring about an express repeal. All that is necessary is that the words used show an intention to abrogate the Act or
provision in question. The usual form is to use the words 'is or are hereby repealed' and to mention the Acts sought
to be repealed in the repealing section or to catalogue them in a Schedule. The use of words 'shall cease to have
effect', is also not uncommon. When the object is to repeal only a portion of an Act words 'shall be omitted' are
normally used. The legislative practice in India shows that 'omission' of a provision is treated as amendment which
signifies deletion of that pro-vision and is not different from repeal. It has been held that there is no real distinction
between repeal and an amendment. It has also been held that where a provision of an Act is omitted by an Act and
the said Act simultaneously re-enacts a new provision which substantially covers the field occupied by the
repealed provision with certain modification, in that event such re-enactment is regarded having force
continuously and the modification or changes are treated as amendment coming into force with effect from the
date of enforcement of re-enacted provision. When a Central Act has been adopted under Article 252 by a State
by a resolution passed by the House or Houses of the Legislature of the State, the amendment or repeal of the
Central Act by Parliament does not affect its continuance as a State Act unless the Central amending or repealing
Act is also adopted under Article 252 by the State by a resolution of the House or Houses of the Legislature.
Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision.
Substitution thus combines repeal and fresh enactment. Sometimes the expression used in the later statute runs:
a) all provisions inconsistent with the Act are repealed, or
b) all Acts and parts of Acts in conflict with the provisions of this Act are hereby repealed, or'all laws and
parts of laws in conflict herewith are expressly repealed”. Provisions of this character leave the question
open as to what laws are inconsistent and are intended to be so repealed. One view therefore is that here is
a case not of express repeal but by implication and therefore all rules of law which apply to implied
repeals generally will be applicable to repeals brought about in the aforesaid manner. The question
naturally arises in such cases as to the extent or scope of the repeal. Thus where a repealing clause
expressly refers to a portion of the prior Act, the remainder of such Act will not usually be repealed, as
presumptions raised that no further repeal is necessary, unless there is irreconcilable inconsistency
between them. In like manner, if the repealing clause is by its terms confined to a particular Act, quoted
by title it will not be extended to an Act upon a different subject. And a general Act repealing all Acts
inconsistent therewith, will usually apply to general Acts and not to special or local laws. The reason
behind this rule, according to Crawford finds its foundation in two premises: the special Act is not
repealed because it is not named, or because there is no absolute inconsistency between the general Act
and the special Act. Consequently, if the repealing Act named the special Act or if the two were
irreconcilably inconsistent, the special Act would also be terminated. Where there is direct reference in the
repealing clause to a particular Act, it is a case of express repeal. But where there is no direct reference, the
matter will have to be determined by taking into account the exact meaning and scope of the words
contained in the repealing clause and the principles of law which govern the interpretation of the same.
Principles governing the cases of implied repeal can in such a case be called in aid to determine whether
there is effective repeal of the earlier statute. Court has to suppose that the Government have a consistent
design and policy and intend nothing that is inconsistent or incongruous. Prior statutes are held to be
repealed by implication by subsequent statutes if the prior enactment is special and the subsequent one is
general. This rule must not be pressed too far. If a special enactment and a subsequent general enactment
are absolutely repugnant and inconsistent with one another, the Courts have no alternative but to declare
the prior special enactment as repealed by the subsequent general Act. In all such cases the legislative
intention, rather than grammar or letter of the enactment, is the determining factor. If the intention is found
to be to sweep away all previous orders and to establish one rule for all belonging to a class of persons that
will be sufficient to get rid of any previous special provision.
There is no doubt that repeal by implication is just as effective as by express words. The general
rule is that when you have an Act of Parliament enacting particular provisions and in a subsequent Act
there are provisions which are inconsistent with the provisions of the first Act both enactments cannot
stand together. The enactment in the second Act stands and repeals the enactment in the first Act. Of
course from the necessity of the case it is an implied and not an express repeal. Where two statutes passed
in the same year appear to be repugnant, that which was passed latest must prevail. A repeal by
implication is only effected when the provisions of a later enactment are so inconsistent with or
repugnant to the provision of an earlier one that the two cannot stand together.
A prior general Act may be affected by a subsequent particular or special Act if the subject-
matter of the particular Act prior to its enforcement was being governed by the general provisions of the
earlier Act. In such a case the operation of the particular Act may have the effect of partially repealing the
general Act, or curtailing its operation, or adding conditions to its operation for the particular cases. The
distinction may be important at times for determining the applicability of those provisions of the General
Clauses Act, 1897, (Interpretation Act, 1889 of U.K. now Interpretation Act, 1978) which apply only in
case of repeals. In Municipal Board, Bareilly v. Bharat Oil Co.,the State Government had
framed rules regulating the levy of octroi in general by all municipalities. Thereafter, rules were framed
by the State Government for levy of octroi by the Bareilly municipality expressly providing that the new
rules will apply in supersession of the existing rules. It was held that there was deemed repeal of the
earlier rules in respect of Bareilly municipality.
Presumption against Repeal
There is a presumption against a repeal by implication. The reason for the presumption is that the
legislature while enacting a law has a complete knowledge of the existing laws on the subject-matter and
therefore when it does not provide a repealing provision, it gives out an intention not to repeal the existing
legislation. The burden to show that there has been a repeal by implication lies on the party asserting it.
Courts can lean against implied repeal. If by any fair interpretation both the statutes can stand together,
there will be no implied repeal. If possible, implied repeal shall be avoided.
Where two enactments are entirely affirmative and identical no question of inconsistency can
arise. Where the operative terms of the two enactments are identical, and the enactments run parallel to
each other there can be so to speak no scope for the application of the doctrine of implied repeal. But if a
later statute describes an offence created by an earlier one and provides for a different punishment, or
varies procedure, the earlier statute is repealed by implication.
Similarly where a latter statute expresses in affirmative language its applicability to whole
of India, which would imply the repeal of an earlier statute or colonial law on the same subject.
Cases of repeal by necessary implication
Hence a statute is repealed by implication in the following cases, namely
a) If its provisions are plainly repugnant to those of the subsequent statute..
b) If the two standing together would lead to wholly absurd consequences
c) if the entire subject-matter of the first is taken away by the second.
Consequences of Repeal
General
Under the common law rule the consequences of repeal of a statute are very drastic. Except as to
transactions past and closed, a statute after its repeal is as completely obliterated as if it had never been
enacted. The effect is to destroy all inchoate rights and all causes of action that may have arisen under the
repealed statute. Therefore, leaving aside the cases where proceedings were commenced, prosecuted and
brought to a finality before the repeal, no proceeding under the repealed statute can be commenced or
continued after the repeal.
Another result of repeal under the common law rule is to revive the law in force at the
commencement of the repealed statute. Thus if one statute is repealed by a second which in turn is
repealed by a third, the effect is to revive the first statute unless a contrary intention is indicated in the third
statute. The confusion resulting from all these consequences gave rise to the practice of inserting saving
clauses in

Saving of rights acquired

The effect of clauses (c) to (e) of section 6, General Clauses Act is, speaking briefly, to prevent
the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities
incurred during its operation and permit continuance or institution of any legal proceedings or recourse to
any remedy which may have been available before the repeal for enforcement of such rights and
liabilities. Thus, offences committed during the continuance of a statute can now be prosecuted and
punished even after its repeal^ a course which would not have been possible under the common law rule
of complete obliteration of a repealed statute. It must, however, be noticed that 'any investigation, legal
proceeding or remedy' saved by clause(e) is only in respect of any right and privilege 'acquired' or
'accrued' and any obligation, liability, penalty, forfeiture or punishment 'incurred' within the ambit of
clauses (c) and (d) of section 6. In respect of other matters though 'anything done' under the statute will not
be invalidated after its repeal by virtue of clause (b) of section 6, but it will be rendered abortive if no right
was acquired or had accrued and no liability had been incurred prior to repeal. Further, the saving of rights
and liabilities is in respect of those rights and liabilities which were acquired or incurred under a repealed
statute and not under the general law which is modified by a statute. In respect of rights and liabilities
acquired or incurred under the general law which is modified by a statute the inquiry should be as to how
far the statute is retrospective. And when a Code dealing with procedure is repealed and replaced by a
new Code, the new Code would speaking generally apply for investigations or trials pending under the
old Code for no person has a vested right in any matter of procedure, unless the new Code by an express
saving clause preserves the continuance of the old Code for pending investigations and trials.
The distinction between what is, and what is not a right preserved by the provisions of section
6,General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right
acquired or accrued under it and not a mere "hope or expectation of', or liberty to apply for, acquiring a
right. A distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a
legal proceeding for acquisition of a right. The former is saved whereas the latter is not. The question
whether a right was acquired or a liability incurred under a statute before its repeal will in each case
depend on the construction of the statute and the facts of the particular case. The central issue in
 considering this question in a controversial case will generally be whether the steps that remained to be
taken under the repealed statute were steps necessary for acquiring right or incurring a liability or whether
they were steps required merely for enforcing a right or liability (at least contingent) that had come into
existence. The right of an injured third party to recover damages against the insurers of a motor vehicle
will be an accrued right on the happening of the accident resulting in the injury and will be enforceable
against them even after repeal of the enactment creating the liability, even though the process of
quantification is not complete before the repeal.

Revival
Under the English Common Law when a repealing enactment was repealed by another statute, the repeal
of the second Act revived the former Act. But this rule does not apply to repealing Acts passed since 1850, and
now if an Act repealing a former Act is itself repealed, the last repeal does not revive the Act before repealed unless
words are added reviving it. The present rule is the result of the statutory provisions introduced by the Interpretation
Act of 1889, but though we are not bound by the provisions of any English Statute, we can still apply the English
Common Law if it appears to be reasonable and proper. But it may be noted that even according to the Common
Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing
enactment manifests an intention to the contrary.

The common law rule of revival has been abrogated by sections 6(a) and 7 of the General Clauses Act,
1897. The result, therefore, is that if one Act is repealed by a second which again is repealed by a third, the first Act
is not revived unless the third Act makes an express provision to that effect. As regards revival of enactments
section 6(a) covers what is more emphatically declared by section 7, but the latter is limited in operation to
enactments; whereas the former is wider in operation and will prevent the revival of many other matters,
e.g.the revival of a void contract or of common law. When a provision is repealed by substitution of another
provision in its place and the Act making the substitution is declared invalid, the question of revival of the original
provision requires consideration of whether the Act has been declared invalid for want of legislative competence or
on other grounds. When a temporary statute affects a repeal of an existing statute, a question arises whether the
repealed statute revives on the expiry of the repealing statute. Section 11(1) and section 38(2)(a)of the
Interpretation Act, 1899, in terms are limited to cases of repeals of a repealing enactment and have no application
to a case of expiry of a repealing Act. As regards the General ClausesAct, 1897, section 6(a), which corresponds to
section 38(2)(a) of the Interpretation Act, is also interms limited to repeals; and therefore has no application on
expiry of a repealing statute. But in section 7 of the General Clauses Act, which corresponds to section 11(1) of the
Interpretation Act, the language is slightly different. However, having regard to the context and the setting of the
section it appears also to be inapplicable to a case of expiry of a repealing statute. The answer, therefore, to the
question, whether a statute which is repealed by a temporary statute revives on the expiry of the repealing statute,
will depend upon the construction of the repealing statute. As regards the effect of the repealing of an earlier Act
made by a temporary Act, observed Gajendragadkar, J. the intention of the temporary Act in repealing the
earlier Act will have to be was held that the Jind State Civil Service Regulations, 1945 which were repealed by
Pepsu Ordinance No. 16 of Samvat 2005 did not revive after six months when the Ordinance expired for the
intention in repealing the Regulations was to repeal them absolutely.
Similarly Rule 49 of the U.R Sugarcane (Regulation of Supply and Purchase) Rules substituted by the
Amendment Rules 1992 (which were to have effect from the then existing rule 49 was held to repeal the
existing rule absolutely which was not revived after the expiry of the substituted rule.
If the repealing section in a temporary statute on construction, is held to expire with the expiry of the Act, the repeal
will be construed only as a temporary repeal. Section 1 of Statute 46 Geo. 3repealed the provisions of Statute 42
Geo. 3 and substituted some other provisions. Section 14 of the repealing Act provided that the Act shall continue
in force till a certain period. It was held that 'the Act' referred to in section 14 included whole of the Act and
incorporating section 1 with section 14, the repeal expired with the expiry of the Act reviving the operation of the
earlier Act. In the Privy Council case already noticed, there are observations to the effect that a repeal by a
temporary Act is prima facie only a temporary repeal resulting in revival of the repealed provisions after the
expiry of the repealing Act. Those observations may here be quoted : "The result is that on 31st March, 1936, the
temporary legislation contained in the first Act of 1933repealing provisions of the principal Act of 1932 and
substituting other provisions came to an end not by the repeal of the temporary legislation but by the efflux of the
prescribed time. No question, as to the revival of the temporary repealed provisions of the principal Act of 1932
by the repeal of repealing legislation, arises. The repeal, effected by the temporary legislation, was only a
temporary repeal. When by the fiat of Parliament the temporary repeal expired, the original legislation
automatically resumed its full force. No enactment of it was required.

4. EXPLAIN THE COMMON LAW RULES RELATING TO STATUTES

AFFECTING THE CROWN OR STATE.

The rule of common law

a) Statutes are enacted for the subjects and not for the king, thus the crown is not bound by
any statute. There is one exception to the above rule, if the intention of the legislature is
clear that, the crown has to bound by the statute, then he will be bound by necessary
implication. In such case by giving his assent the king agrees to be bound by it.
b) Crown can be bound by express words or necessary implication.
c) In Bacons abridgment it was stated that the crown is bound by statute which deals with
public good, advance of religion despite the king not being expressly mentioned there.
But this view id not approved by modern writers.
d) To know if the crown is bound by necessary implication the safest way is to read the
statute as a whole and to ascertain the intention of the legislature. Bombay province vs
Bombay municipal corp., in this case the question was whether the provisions of the
Bombay municipal act 1888, which authorized the commissioner to carry water mains
and municipal drains through or under any land within the city. The bomaby HC
concluded that even the government land within the city was subject to the statutory
authority of the corporation to carry water mains because the legislation cannot operate
with reasonable efficiency unless the crown is bound by necessary implication. The Privy
Council however overruled the decision and held that there is no authority which gives
support to the above interpretation.

Extent of rule
The presumption that the crown is not bound by statutes extends to the following class of
people:
a) Sovereign personally,
b) Servant/ agents of the crown directly,
c) Persons who though not strictly servants/agents of crown are considered to be
consimili casu.(these are persons who are independent of the crown, perform to a
limited degree the regal government function such a administration of justice, the
carrying of war, making of treaties etc.(Tamlin v Hannaford)

Rule in India
 The common rule was that the crown is not bound by a statute unless named
expressly or by necessary implication. This was followed in India before and even after
the constitution. But soon this rule was overruled in State of WB v. Corporation of
Calcutta, in which the court held that a general act applies to citizens as well as to state
unless it expressly or by necessary implication exempts the state from its operation.

5. “EVERY STATUTE IS PRIMA FACIE PROSPECTIVE UNLESS IT IS

EXPRESSLY OR BY NECESSARY IMPLICATION MADE TO HAVE
RETROSPECTIVE OPERATION”. DISCUSS.

Every Act has a date from where it starts functioning called as the commencement clause.
The commencement of an act means the day on which the Act comes into force.
Generally a central Act comes into operation on the day it receives presidential Assent.

A state Act comes into force on the day when the assent of the governor or the president
is the first published in the official Gazette of the state

Unless an act in brought into force by legislative authority, it cannot be said to be in

operation.

Generally the whole act is brought into force on a specified date. Even different parts of
the same Act may be brought into force on different dates.

If the statute in pending for a long time with the Government without being passed, a writ
of mandamus can be filed against the Government. The court may direct the Government
to consider the question whether the statute or the provision should be brought into force
or not.

A bill doesn’t come into force, unless it takes the form of an Act.

There are two types of Operation of statutes:

1. Prospective operation
2. Retrospective operation.

Prospective operation:
Prospective means present and future.

Prospective application means that an act starts its validity from the date of its coming
into force. It will apply for all present and future events until and unless it is repealed.

The General rule is that a Statute when enacted has a prospective application i.e it applies
to the future.

Retrospective Operation:

Retrospective means past.

Retrospective application means an act which applies to past events and also to present
events.

All statutes are prospective in application but not all statutes have retrospective
application.

The cardinal principle of construction is based upon a latin maxim ‘Nova Constitutio
futuris forman imponere debet non praeteritis’ i.e a new law ought to regulate what is to
follow & not the part. It is always understood that a statute applies to facts or
circumstances which occur after the existences of the statute unless the legislature intends
to apply it retrospectively.

For a statute to apply retrospectively it has to be expressly stated by the legislature.

There are 5 general principles of retrospective operation:

They are as follows:
a) Power to make retrospective laws
b) Statutes dealing with substantive rights.
c) Statutes dealing with procedure
d) Recent statements of the rule against retrospectively.
e) Language not always decisive.

Power to make retrospective laws:

Power is vested with the union parliament and state legislatures.
These two have the powers to legislate a statute to the retrospectively and prospectively.
By stating that a particular Act is retrospective in nature, the legislature tries to bring all
those events which took place prior to the commencement of the said Act, within the
scope of that Act. Usually retrospective effect in given to curative and validating statutes
i.e. to cure the defects which existed before the pacing of that Act.
Eg:- Declaratory Acts; procedural laws such as Cr.P.C., CPC, presumption as to abetment
of suicide by a married woman u/s. 113-A of the Evidence Act, 1872.

Statutes dealing with Substantive Rights Statutes:

Statutes dealing with Substantive Rights Statutes/ Provisions which deal with right-in-
existence cannot be applied retrospectively.

It is a cardinal principle that every statute prima facie is prospective unless it is either
expressly or impliedly marked as retrospective.
This is based upon the maxim “nova conetitutio futuris forman imponere debet non
practeritis” (a law ought to regulate what to follow, not the past).
The rule against retrospective application lies only with respect to vested rights is not
existing rights.

Statutes dealing with procedure:

The rule of retrospective operation can be applied to procedural statutes.
Ex.1:- Cr.P.C., CPC, Law of Evidence, etc. It is prevented that in procedural statutes, no
person has a vested right in the procedure. He only has a right of prosecution prescribed
for the time being. It is only an existing right which starts from the initiation of a case and
ends upon the final verdict.
Ex.2:- Sec. 45-B of the Employees State Insurance Act, 1948.
This section empowers the employees State Ins. Corp to recover arrears of contribution
from the Employer as arrears of land revenue.
Therefore this being procedural in nature can be applied prior to the commencement of
this section.
 Recent statements of the rule against retrospectively:-
Unless the parliament clearly indicates retrospective aspect, a statute/ a provision cannot
be presumed as retrospective in nature. The intention of the legislature is very important.

Language not always decisive:-

More important to the tense cannot be given to know whether a statute /proviso
has retrospective application or not.If the section has words like if a person has been
convicted i.e. pact tense, we cannot assume that it also speaks about prior convictions.
Similarly the words like ‘has made’, ‘has ceased’, ‘has failed’ and ‘has become’
many specify events happening before or after the commencement of the Act.
What is important is to find out whether such event which place falls within the scope of
the Act.

6. EXPLAIN THE BASIC PRINCIPLES OF LEGISLATION.

The principle of utility:
The principle of utility states that actions or behavior are right in so far as they promote
happiness or pleasure and wrong if they tend to produce unhappiness or pain. Many
utilitarian’s believe that pleasure and pain are objective states and can be more or less
quantified i.e, measured. The criterias for measuring are intensity, duration, fecundity etc.

Classical utilitarians believe in the greatest amount of happiness for the greatest number
of people. The public good ought to be the object of the legislator. Example- A few years
back, Cincinnati government officials had a community vote on whether to use the
proceeds from a proposed sales tax increase to build two new sports stadiums for the
Reds and the Bengals. A classical utilitarian would have to examine how that expenditure
would effect everyone in the community. This determination entailed calculating
beforehand the amount of pleasure and pain that the various members of the community
would experience as a result of building those stadiums; then decide whether the benefits
(pleasures) outweigh the costs (pains)? Of course the primary beneficiaries of the larger
more modern stadiums would be the wealthy team owners, players, perhaps a few
downtown restaurant owners, parking lot owners etc. If the levy fails, at least one of the
teams will probably move to another city. That would cause pain to some members of the
community including fans, venders, parking lot attendants etc. Defenders of the tax
argued that even the retailers in the suburban malls would benefit economically from
keeping the sports teams. If they move they will lose customers on game days.

The fundamental problem for utilitarianism is justifying the altruistic principle of self-
sacrifice in order to benefit others. Since, I do not attend the games played at the stadium,
and will not benefit from hot dog revenues, why should I contribute to either project?
Under classical utilitarianism, at least some members of the community must sacrifice
his/her own interests for the interests of others without benefiting personally. Indeed it is
often the case that what turns out to be in the public interest conflicts with the private
interests of some individuals. How can one justify such altruism based on utilitarian
principles?
Sometimes, it is possible for an act to provide a large amount of quantifiable pleasure for
a few persons at the cost of a small amount of quantifiable pain for everyone else.
Suppose, for example, we have a small, but significant number of homeless children that
could be helped by imposing a small tax on everyone in Cincinnati. A utilitarian would
not be able to justify imposing that tax, unless it could be shown that more people are
helped than harmed. One way to get around this would be to count not only the number
of persons that experience pleasure and pain, but also weigh the intensity, duration,
fruitfulness, and likelihood of the pleasures involved. Hence, we might argue that if we
weigh the amount of pleasure that homeless children experience, as the result of
providing them shelter, against the minimal pain that tax payers experience, then we
might rationally justify building that shelter at public expense.

The Ascetic Principle:

Ascetic comes from a Greek word which signifies exercise/practice. The term ascetic has
been sometimes applied to monks. The practices by which monks sought to distinguish
themselves from others were called their exercises which consisted in so many
contrivances they had for tormenting themselves. By the principle of asceticism,
 Bentham meant that principle approve actions which tends to diminish happiness and
disapprove actions which augment it.
This principle is the rival of utility principle. Under this everything that gratifies or
pleases the senses is odious and criminal. They found morality on privation and virtue
upon the renouncement of our self. They approve everything which tends to diminish
enjoyment and blame everything which tends to increase enjoyment. This principle has
been followed by two classes of men one class are philosophers and the other are
devotees.
This principle has not been applied in nay considerable degree to the business of
government.
The arbitrary principle:
Among the principles opposed to utility, the one that now seems to have most influence
in matters of government is what may be called the principle of sympathy and antipathy.
This principle consists in approving/ blaming by sentiments, without giving any other
reasons for the decision except the decision itself. I love/I hate such is the pivot on which
this principle turns. An action is judged to be good or bad not because it is comfortable or
the contrary to the interest of those whom it affects, but because it please or displeases
him who judges.
The object is to make our opinions triumph without the trouble of comparing them with
the opinions of other people.
The ascetic principle attacks utility in front. The principle of sympathy and antipathy
neither rejects it nor admits it; it pays no attention to it. According to this to legislate is an
affair of observation and calculation, it is a matter of humor and imagination of taste.

7. EXPLAIN THE PRINCIPLES RELATING TO INTERPRETATION OF THE

CONSTITUTION.

The following are some of the key principles applied specially in interpreting the provisions of
the constitution -

1. Doctrine of pith and substance

2. Doctrine of Colourable legislation
3. Principle of Ancillary powers
4. Principle of Occupied field
5. Doctrine of repugnancy
6. Principle of Territorial Nexus
7. Doctrine of prospective overruling

Doctrine of Pith and Substance: Pith means "true nature" or "essence" and substance
means the essential nature underlying a phenomenon. Thus, the doctrine of pith and
substance relates to finding out the true nature of a statute. This doctrine is widely used
when deciding whether a state is within its rights to create a statute that involves a subject
mentioned in Union List of the Constitution. The basic idea behind this principle is that
an act or a provision created by the State is valid if the true nature of the act or the
provision is about a subject that falls in the State list. The case of State of Maharashtra
vs F N Balsara, illustrates this principle very nicely. In this case, the State of
Maharashtra passed Bombay Prohibition Act that prohibited the sale and storage of
liquor. This affected the business of the appellant who used to import liquor. He
challenged the act on the ground that import and export are the subjects that belong in
Union list and state is incapable of making any laws regarding it. SC rejected this
argument and held that the true nature of the act is prohibition of alcohol in the state and
this subject belongs to the State list. The court looks at the true character and nature of
the act having regard to the purpose, scope, objective, and the effects of its provisions.
Therefore, the fact that the act superficially touches on import of alcohol does not make it
invalid.

Thus, as held in State of W Bengal vs Kesoram Industries, 2004, the courts have to
ignore the name given to the act by the legislature and must also disregard the incidental
and superficial encroachments of the act and has to see where the impact of the
legislation falls. It must then decide the constitutionality of the act.

Principle of Incidental or Ancillary Powers: This principle is an addition to the

doctrine of Pith and Substance. What it means is that the power to legislate on a subject
also includes power to legislate on ancillary matters that are reasonably connected to that
subject. It is not always sufficient to determine the constitutionality of an act by just
looking at the pith and substance of the act. In such cases, it has to be seen whether the
matter referred in the act is essential to give affect to the main subject of the act. For
example, power to impose tax would include the power to search and seizure to prevent
the evasion of that tax. Similarly, the power to legislate on Land reforms includes the
power to legislate on mortgage of the land. However, power relating to banking cannot be
extended to include power relating to non-banking entities. However, if a subject is
explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter.
For example, power to tax is mentioned in specific entries in the lists and so the power to
tax cannot be claimed as ancillary to the power relating to any other entry of the lists.

As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power to legislate
on a topic includes the power to legislate on an ancillary matter which can be said to be
reasonably included in the topic.

The underlying idea behind this principle is that the grant of power includes everything
necessary to exercise that power. However, this does not mean that the scope of the
power can be extended to any unreasonable extent. Supreme Court has consistently
cautioned against such extended construction. For example, in R M D Charbaugwala v
State of Mysore, , SC held that betting and gambling is a state subject as mentioned in
Entry 34 of State list but it does not include power to impose taxes on betting and
gambling because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation: This doctrine is based on the principle that what
cannot be done directly cannot be done indirectly. In other words, if the constitution does
not permit certain provision of a legislation, any provision that has the same effect but in
a round about manner is also unconstitutional. This doctrine is found on the wider
doctrine of "fraud on the constitution". A thing is Colourable when it seems to be one
thing in the appearance but another thing underneath. K C Gajapati Narayan Deo vs
State of Orissa, is a famous case that illustrates the applicability of this doctrine. In this
case, SC observed that the constitution has clearly distributed the legislative powers to
various bodies, which have to act within their respective spheres. These limitations are
marked by specific legislatives entries or in some cases these limitations are imposed in
the form of fundamental rights of the constitution. Question may arise whether while
enacting any provision such limits have been transgressed or not. Such transgression may
be patent, manifest or direct. But it may also be covert, disguised, or indirect. It is to this
later class of transgression that the doctrine of colourable legislation applies. In such
case, although the legislation purports to act within the limits of its powers, yet in
substance and in reality, it transgresses those powers. The transgression is veiled by mere
pretense or disguise. But the legislature cannot be allowed to violate the constitutional
prohibition by an indirect method. In this case, the validity of Orissa Agricultural Income
Tax (Amendment) Act 1950 was in question. The argument was that it was not a bona
fide taxation law but a colourable legislation whose main motive was to artificially lower
the income of the intermediaries so that the state has to pay less compensation to them
under Orissa Estates Abolition Act, 1952. SC held that it was not colourable legislation
because the state was well within its power to set the taxes, no matter how unjust it was.
The state is also empowered to adopt any method of compensation. The motive of the
legislature in enacting a law is totally irrelevant.

A contrasting case is of K T Moopil Nair v State of Kerala, AIR 1961. In this case, the
state imposed a tax under Travencore Cochin Land Tax Act, 1955, which was so high
that it was many times the annual income that the person was earning from the land. The
SC held the act as violative of Articles 14 and 19(1)(f) in view of the fact that in the
disguise of tax a person's property was being confiscated.

Similarly, in Balaji v State of Mysore, SC held that the order reserving 68% of the seats
for students belonging to backward classes was violative of Article 14 in disguise of
making a provision under Article 15(4).

Doctrine of Eclipse: In the case of Keshavan Madhava Menon v. The State of Bombay,
the law in question was an existing law at the time when the Constitution came into force.
That existing law imposed on the exercise of the right guaranteed to the citizens of India
by article 19(1)(g) restrictions which could not be justified as reasonable under clause
(6) as it then stood and consequently under article 13(1) that existing law became void
“to the extent of such inconsistency”.

The court said that the law became void not in toto or for all purposes or for all times or
for all persons but only “to the extent of such inconsistency”, that is to say, to the extent it
became inconsistent with the provisions of Part III which conferred the fundamental
rights on the citizens.

This reasoning was also adopted in the case of Bhikaji Narain Dhakras And Others v. The
State Of Madhya Pradesh And Anothe. This case also held that “on and after the
commencement of the Constitution, the existing law, as a result of its becoming
inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood,
could not be permitted to stand in the way of the exercise of that fundamental
right. Article 13(1) by reason of its language cannot be read as having obliterated the
entire operation of the inconsistent law or having wiped it out altogether the statute,
book. Such law existed for all past transactions and for enforcement of rights and
liabilities accrued before the date of the Constitution. The law continued in force, even
after the commencement of the Constitution, with respect to persons who were not
citizens and could not claim the fundamental right”.

The court also said that article 13(1) had the effect of nullifying or rendering the existing
law which had become inconsistent with fundamental right as it then stood, ineffectual,
nugatory and devoid of any legal force or binding effect, only with respect to the exercise
of the fundamental right on and after the date of the commencement of the Constitution.
Finally the court said something that we today know of as the crux of Doctrine of
Eclipse.“The true position is that the impugned law became, as it were, eclipsed, for the
time being, by the fundamental right.”

We see that such laws are not dead for all purposes. They exist for the purposes of pre-
Constitution rights and liabilities and they remain operative, even after the
commencement of the Constitution, as against non-citizens. It is only as against the
citizens that they remain in a dormant or moribund condition.
Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that
violate fundamental rights upon the premise that such laws are not null and void ab
initio but become unenforceable only to the extent of such inconsistency with the
fundamental rights. If any subsequent amendment to the Constitution removes the
inconsistency or the conflict of the existing law with the fundamental rights, then the
Eclipse vanishes and that particular law again becomes active again.

Doctrine of Occupied Field: In the last post, we discussed the doctrine of Pith and
Substance according to which where the question arises of determining whether a
particular law relates to a particular subject (mentioned in one list of another), the court
looks into the substance of the matter.

There is a very thin of line of difference between doctrine of Repugnancy and Doctrine
of Occupied Field. As we know that repugnance arises only if there is an actual conflict
between two legislations, one enacted by the State Legislature and the other by
Parliament, both of which were competent to do so.

On the other hand, doctrine of Occupied Field simply refers to those legislative entries of
State List, which are expressly made ‘subject’ to a corresponding Entry in either the
Union List or the Concurrent List. Doctrine of Occupied Field has nothing to do with the
conflict of laws between the state and the centre. It is merely concerned with the
‘existence of legislative power’ whereas repugnance is concerned with the ‘exercise of
legislative power’ that is shown to exist. Doctrine of Occupied Field comes into picture
even before the Union Law or the State Law has commenced. Under Article 254, as soon
as a Union law receives assent of the President, it is said to be ‘a law made by the
Parliament’. Actual commencement of the law is not important for the purpose of
attracting doctrine of Occupied Field.

Doctrine of Territorial Nexus

Territorial Nexus and the Parliament
1. Article 245 (2) of the Constitution of India makes it amply clear that ‘No law
made by Parliament shall be deemed to be invalid on the ground that it would have extra-
territorial operation’. Thus a legislation cannot be questioned on the ground that it has
extra-territorial operation.

2. It is well-established that the Courts of our country must enforce the law with the
machinery available to them; and they are not entitled to question the authority of the
Legislature in making a law which is extra-territorial[1].

3. Extra-territorial operation does not invalidate a law. But some nexus with India may
still be necessary in some of the cases such as those involving taxation statutes[2].

Territorial Nexus and the State Legislature

The Legislature of a State may make laws for the whole or any part of the State[3]. Now,
this leaves it open to scrutiny whether a particular law is really within the competence of
the State Legislature enacting it. There are plethora of cases that have stated that the laws
which a state is empowered to make must be for the purpose of that State.

Thus, the Doctrine of Territorial Nexus has been applied to the States as well. There are
two conditions that have been laid down in this respect:

1. The Connection (nexus) must be real and not illusory.

2. The liability sought to be imposed must be pertinent to that connection.

If the above two conditions are satisfied, any further examination of the sufficiency of
Nexus cannot be a matter of consideration before the courts.

In various cases relating to taxation statutes, the courts have time and again stated that it
is not necessary that the sale or purchase should take place within the Territorial Limits
of the State. Broadly speaking local activities of buying or selling carried in the State in
relation to local goods would be sufficient basis to sustain the taxing power of the State,
provided of course, such activities ultimately result in concluded sale or purchase to be
taxed.
 There is also a Presumption of Constitutionality that the Legislature is presumed not to
have exceeded its constitutional powers and a construction consistent with those powers
is to be put upon the laws enacted by the Legislature.

Extra-Territorial Operation
It is well-established that the Parliament is empowered to make laws with respect to
aspects or causes that occur, arise or exist, or maybe expected to do so, within the
territory of India and also with respect to extra-territorial aspects or causes that have an
impact or nexus with India.

“Such laws would fall within the meaning, purport and ambit of grant of powers of
Parliament to make laws ‘for the whole or any part of the territory of India’ and they may
not be invalidated on the ground that they require extra territorial operation. Any laws
enacted by the Parliament with respect to extra territorial aspects or causes that have no
nexus with India would beultra vires and would be laws made for a foreign territory.”

This clearly indicates that as long as the law enacted by the Parliament has a nexus with
India, even if such laws require extra territorial operation, the laws so enacted cannot be
said to constitutionally invalid. It is only when the‘laws enacted by the Parliament with
respect to extra territorial aspects or causes that have no nexus with India’ that such
laws ‘would be ultra vires.

8. DISCUSS THE GENERAL PRINCIPALS OF STATUTES AFFECTING

JURISDICTION.
Exclusion must be explicitly expressed or clearly implied
a) Provisions excluding jurisdiction of civil court and provisions conferring
jurisdiction on authorities other than civil courts are strictly construed
b) Strong presumption that civil courts have jurisdiction to decide all questions of
civil nature. Therefore their exclusion has to be explicitly expressed or clearly
implied.
c) Existence of jurisdiction of civil court to decide questions of civil nature is the
general rule and exculsion of it is an exception. Therefore the burden of proof lies
on that party who contends it.
d) Criminal courts are also courts of general jurisdiction and exclusion of
jurisdiction of ordinary criminal courts can be brought about by setting up courts
of limited jurisdiction. But such vesting and exercise of limited jurisdiction has to
be clear and operative.
e) Rule of exclusion of jurisdiction of courts is attracted only where two or more
reasonably possible construction are open on the language of the act.
f) Akbar khan vs UOI,sec 9(1) of the citizenship act 1955 enacts that if any question
arises as to whether, when or how any person has acquired the citizenship of
another country it shall be determined by such authority as may be prescribed.
The plaintiff instituted a suit a civil suit claiming that they wre Indian citizens on
26th jan 1950 and although they went to Pakistan in 1953 it was a temporary visit
and they did not acquire citizenship. State contended that they were never Indian
citizens. The suit was dismiised on being barred by se 9(2) of Indian citizenship
act. SC held that the question whether they were Indian citizens or no could be
decided by civil court and was not barred by the act. The question whether they
had acquired another citizenship could only be decided by central govt.
Three classes of cases:
i. There is a liability existing at common law and that liability is affirmed by an
act which gives a special form of remedy different from what there is in
common law. Unless the act expressly or impliedly excludes common law
remedy party has a choice between both.
ii. Statute gives the right to sue merely but provides no form of remedy. Then
party can proceed by action at common law. The court of general jurisdiction
remain always open irrespective of whether it creates new right, liabilities or
regulates existing ones.
iii. Where a liability not existing at common law is created by an act which also
gives a special remedy for it. Remedy given by the act must only be followed.
 Thus the fact that a statute provides for certain remedies does not by itself exclude
the jurisdiction of civil courts. But if a new right/ liability is created by an act
which gives special remedy for enforcing it, the ordinary remedy of approaching
civil court is impliedly excluded.

8. Answer any 2
a) Heydon’s rule.

This is a very important rule as far as the Interpretation of Statute is concerned. It is

often referred to as the “rule in Heydon’s Case”. This very important case reported by
Lord Coke and decided by the Barons of the Exchequer in the 16th century laid down the
following rules:

That for the sure and true interpretation of all statutes in general, be they penal or
beneficial, restrictive or enlarging of the common law; four things are to be considered -

1) What was the common law before the passing of the Act?
2) What was the mischief and defect for which the common law did not
provide?
3) What remedy the Parliament hath resolved and appointed to cure the
defect?
4) The true reasons for the remedy.

And then the office of all the Judges is always to make such construction as shall
suppress the mischief and advance the remedy. Before proceeding any further, a word of
warning is appropriate. Uses the exact words – “disease of the Commonwealth” - used by
Lord Coke in his report and it is important to bear in mind that words had different
meanings. It is necessary to discover their meaning at the time of writing. From the 14th
century to the end of the 17th, the meaning of disease was lack of ease, disquiet or
distress and Commonwealth, of course, meant the Country. According to an early
case, The Longford an Act must be construed as if one were interpreting it on the day it
was passed. Thus, we ask ourselves what the word meant on the day it was uttered, if by
analogy we argue that the same can be said of a judgment. The importance of the
mischief rule in the criminal law can best be shown by considering examples. An Act of
Parliament will state the purpose for which it was enacted. If we take the case of Parkin
v. Norman, (reserved judgment), it can be seen that the court decided that the Public
Order Act 1936 was never designed to deal with homosexual behavior in public toilets.
The long title to the Act reads: “An Act to prohibit the wearing of uniforms in connexion
with political objects and the maintenance by private persons of associations of military
or similar characters; and to make further provision for the preservation of public order
on the occasion of public processions and meetings and in public places.”

The purposes of the Act and the mischief rule are, therefore, closely connected, and
it is very genuine to look at the long title. Another example of the application of the
mischief rule is found in Ohison v. Hylton. The facts, briefly, were a carpenter was on his
way home from work. He boarded a train which was crowded. Another passenger
objected and subsequently both finished up on the platform. The defendant, the carpenter,
took one of his tools of his trade, a hammer, from his briefcase and struck the other man
with it. He was charged under the Prevention of Crime Act 1953. Lord Widgery, CJ, said,
inter alia: “This is a case in which the mischief at which the statute is aimed appears to
me to be very clear. Immediately prior to the passing of the 1953 Act the criminal law
was adequate to deal with the actual use of weapons in the course of a criminal assault.
Where it was lacking, however, was that the mere carrying of offensive weapons was not
an offence. The long title of the Act reads as follows: ‘An Act to prohibit the carrying of
offensive weapons in public places without lawful authority or reasonable excuse’.
Parliament is there recognizing the need for preventive justice where, by preventing the
carriage of offensive weapons in a public place, it reduced the opportunity for the use of
such weapons. If, however, the prosecutor is right, the scope goes far beyond the mischief
aimed at, and in every case where an assault is committed with a weapon and in a public
place an offence under the 1953 Act can be charged in addition to the charge of assault.
Whilst on the subject of offensive weapons, mention must be made of the Divisional
Court’s decision in Gibson v. Wales, which decided that a “flick knife” is an offensive
weapon per se.’
 Case Laws

Smith v. Hughes: The brief facts were that the defendant was a common prostitute
who lived at No. 39 Curzon Street, London, and used the premises for the purposes of
prostitution. On November 4, 1959, between 8.50 p.m. and 9.05 p.m. the defendant
solicited men passing in the street, for the purposes of prostitution, from a first-floor
balcony of No. 39 Curzon Street (the balcony being some 8–10 feet above street level).
The defendant’s method of soliciting the men was

a) to attract their attention to her by tapping on the balcony railing with some metal
object and by hissing at them as they passed in the street beneath her and
b) having so attracted their attention, to talk with them and invite them to come
inside the premises with such words as ‘Would you like to come up here a little
while?’ at the same time as she indicated the correct door of the premises.
c) It was contended on behalf of the defendant, inter alia, that the balcony was not
‘in a Street’ within the meaning of section 1(1) of the Street Offences Act, 1959,
and that accordingly no offence had been committed. “The sole question here is
whether in those circumstances the appellant was soliciting in a street or public
place. The words of s. 1(1) of the Act are in this form: ‘It shall be an offence for
a common prostitute to loiter or solicit in a street or public place for the purpose
of prostitution’.
Lord Parker CJ said that she ‘being a common prostitute, did solicit in a
street for the purpose of prostitution, contrary to section 1(1) of the Street
Offences Act, 1959.’ It was found that the defendant was a common prostitute,
that she had solicited and that the solicitation was in a street. The defendants in
this case were not themselves physically in the street but were in a house
adjoining the street, on a balcony and she attracted the attention of men in the
street by tapping and calling down to them. At other part the defendants were in
ground-floor windows, either closed or half open. The sole question here is
whether in those circumstances each defendant was soliciting in a street or public
place. The words of section 1(1) of the Act of 1959 are in this form: ‘It shall be
an offence for a common prostitute to loiter or solicit in a street or public place
 for the purpose of prostitution.’ Observe that it does not say there specifically
that the person who is doing the soliciting must be in the street. Equally, it does
not say that it is enough if the person who receives the solicitation or to whom it
is addressed is in the street. For my part, I approach the matter by considering
what is the mischief 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 prostitutes. Viewed in that way,
it can matter little whether the prostitute is soliciting while in the street or is
standing in a doorway or on a balcony, or at a window, or whether the window is
shut or open or half open; in each case her solicitation is projected to and
addressed to somebody walking in the street. She was held liable.

Royal College of Nursing v DHSS : The Royal College of Nursing brought an action
challenging the legality of the involvement of nurses in carrying out abortions. The Offences
against the Person Act 1861 makes it an offence for any person to carry out an abortion. The
Abortion Act 1967 provided that it would be an absolute defence for a medically registered
practitioner (i.e. a doctor) to carry out abortions provided certain conditions were satisfied.
Advances in medical science meant surgical abortions were largely replaced with hormonal
abortions and it was common for these to be administered by nurses it was Held: It was legal for
nurses to carry out such abortions. The Act was aimed at doing away with back street abortions
where no medical care was available. The actions of the nurses were therefore outside the
mischief of the Act of 1861 and within the contemplate defence in the 1967 Act.

Elliot v Grey: The defendant’s car was parked on the road. It was jacked up and had its battery
removed. He was charged with an offence under the Road Traffic Act 1930 of using an
uninsured vehicle on the road. The defendant argued he was not ‘using’ the car on the road as
clearly it was not driveable. It was held: The court applied the mischief rule and held that the car
was being used on the road as it represented a hazard and therefore insurance would be required
in the event of an incident. The statute was aimed at ensuring people were compensated when
injured due to the hazards created by others.
Corkery v Carpenter : The defendant was riding his bicycle whilst under the influence of
alcohol. S.12 of the Licensing Act 1872 made it an offence to be drunk in charge of a ‘carriage’
on the highway. It was held: The court applied the mischief rule holding that a riding a bicycle
was within the mischief of the Act as the defendant represented a danger to himself and other
road users. According to S.12 of the Licensing Act 1872, a person found drunk in charge of a
carriage on the highway can be arrested without a warrant. A man was arrested drunk in charge
of a bicycle. According to the plain meaning rule a bike is not a carriage. Under the Mischief rule
the bicycle could constitute a carriage. The mischief the act was attempting to remedy was that
of people being on the road on transport while drunk. Therefore a bicycle could be classified as a
carriage.

Sodra Devi v. Commr. Of Income Tax: By s 16(3) of the Indian Income Tax Act 1922, ‘In
computing the total income of any individual for the purpose of assessment, there shall be
included so much of the income of a wife or minor child of such individual as arises indirectly or
directly’ In CIT v Sodra Devi the court observed that the legislature was guilty of using an
ambiguous term. There is no knowing with certainly as to whether the legislature meant to enact
these provisions with reference only to a male of the species using the words ‘any individual’ or
‘such individual’ in the narrower sense of the term indicated above or intended to include within
the connotation of the words ‘any individual’ or ‘such individual’ also a female of the species.
Holding the words ‘any individual’ and ‘such individual’ as restricted in their connotation to
mean only the male of the species, the court observed that the evil which was sought to be
remedied was the only resulting from the widespread practice of husbands entering into nominal
partnerships with their wives, and fathers admitting their minor children to the benefits of the
partnerships of which they were members. This evil was sought to be remedied by the Income-
tax Act. The only intention of the legislature in doing so was to include the income derived by
the wife or a minor child, in the computation of the total income of the male assessee, the
husband or the father as the case may be for the purpose of the assessment.

Bengal immunity co. v State of Bihar: Within the context of law, the mischief rule is a rule of
statutory interpretation that attempts to determine the legislator’s intention. Originating from a
16th century case in the United Kingdom, its main aim is to determine the “mischief and defect”
that the statute in question has set out to remedy, and what ruling would effectively implement
this remedy. When material words are capable of bearing two or more constructions the most
firmly established rule for construction of such words “of all statutes in general” is the rule laid
down in Heydons case also known as mischief rule. This rule is also known as purposive
construction. The rules lay down that the court should adopt the construction which shall
suppress the mischief and advance the remedy. In Indian context the rule was best explained in
the case of Bengal immunity co. v State of Bihar. The appellant company is an incorporated
company carrying on the business of manufacturing and selling various sera, vaccines, biological
products and medicines. Its registered head office is at Calcutta and its laboratory and factory are
at Baranagar in the district of 24 – Perganas in West Bengal. It is registered as a dealer under the
Bengal Finance (Sales Tax) Act and its registered number is S.L. 683A. Its products have
extensive sales throughout the Union of India and abroad. The goods are dispatched from
Calcutta by rail, steamer or air against orders accepted by the appellant company in Calcutta. The
appellant company has neither any agent or manager in Bihar nor any office, godown or
laboratory in that State. On the 24th October, 1951 the Assistant Superintendent of Commercial
Taxes, Bihar wrote a letter to the appellant company which concluded as follows :-

“Necessary action may therefore be taken to get your firm registered under the Bihar Sales Tax
Act. Steps may kindly be taken to deposit Bihar Sales Tax dues in any Bihar Treasury at an early
date under intimation to this Department”.

The principal question is whether the tax threatened to be levied on the sales made by the
appellant company and implemented by delivery in the circumstances and manner mentioned in
its petition is leviable by the State of Bihar. This was done by construing article 286 whose
interpretation came into question and the meaning granted to it in the case of The State of
Bombay v. The United Motors (India) Ltd6 was overruled. It raises a question of construction of
article 286 of the Constitution. It was decided that Bihar Sales Tax Act, 1947 in so far as it
purports to tax sales or purchases that take place in the course of inter-State trade or commerce,
is unconstitutional, illegal and void. The Act imposes tax on subjects divisible in their nature but
does not exclude in express terms subjects exempted by the Constitution. In such a situation the
Act need not be declared wholly ultra vires and void. Until Parliament by law provides
otherwise, the State of Bihar do forbear and abstain from imposing sales tax on out-of-State
dealers in respect of sales or purchases that have taken place in the course of inter-State trade or
commerce even though the goods have been delivered as a direct result of such sales or
purchases for consumption in Bihar. The State must pay the costs of the appellant in this Court
and in the court below. Bhagwati, J. had agreed to the above interpretation.

As it can be seen from the case, mischief rule can be applied differently by different
judges. It is mainly about the discretion and understanding of the person applying it. Though, it
as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules. It
usually avoids unjust or absurd results in sentencing but it also seen to be out of date as it has
been in use since the 16th century, when common law was the primary source of law and
parliamentary supremacy was not established. It gives too much power to the unelected judiciary
which is argued to be undemocratic. In the 16th century, the judiciary would often draft acts on
behalf of the king and were therefore well qualified in what mischief the act was meant to
remedy. This is not often the case in modern legal systems. The rule can make the law uncertain,
susceptible to the slippery slope. Therefore Purposive interpretation was introduced as a form of
replacement for the mischief rule, the plain meaning rule and the golden rule to determine
cases. The purposive approach is an approach to statutory and constitutional interpretation under
which common law courts interpret an enactment (that is, a statute, a part of a statute, or a clause
of a constitution) in light of the purpose for which it was enacted.

b) Interpretation of Penal Statutes

In a penal law if there appears to be a reasonable dubiety or ambiguity, it shall be decided

in favour of the person who would be liable to the penalisation. If a penal provision fairly be so
construed as to avoid the punishment, it must be so interpreted. If there can be two reasonable
interpretations of a penal provision, the more lenient should be made applicable.

Punishment can be meted to one only if the plain words extension of the meaning of the
word is allowable. A penalty cannot be imposed on the basis that the object of the statute so
desired. According to Maxwell, “the prerequisite of express language for the creation of an
offence, in interpreting strictly words setting out the elements of an offence in requiring the
fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in
insisting on the strict observance of technical provisions concerning criminal procedure and
jurisdiction.”
 Unless the words of a statute clearly made an act criminal, it shall not be construed as
criminal. If there is any ambiguity in the words which set out the elements of an act or omission
declared to be an offence, so that it is doubtful whether the act or omission falls within the
statutory words, the ambiguity will be resolved in favour of the person charged. The court will
inflict punishment on a person only when the circumstances of the case fall unambiguously fall
under the letter of the law. Legislation which deals with the jurisdiction and the procedure
relation to imposition of the penalties will be strictly construed. Where certain procedural
requirements have been laid down by a statute to be completed in a statute dealing with
punishments, the court is duty bound to see that all these requirements have been complied with
before sentencing the accused. In case of any doubt the benefit has to go to the accused even up
to the extent of acquitting him on some technical grounds. Penal provision cannot be extended by
implication to a particular case or circumstances. The rule exhibits a preference for the liberty of
the subject and in a case of ambiguity enables the court to resolve the doubt in favour of the
subject and against the Legislature which has failed to express itself clearly, but this rule is now-
a-days of limited application. The rule was originally evolved to mitigate the rigors of monstrous
sentences of trivial offences and although the necessity and that strictness have now vanished,
the difference in approach made to penal statute as against any other statute still persists.

General Rule

If a statute laid a mandatory duty but provided no mode for enforcing it, the presumption
in ancient days was that the person in breach of the duty could be made liable for the offence of
contempt of the statute. This rule of construction is obsolete and now has no application to a
modern statute. Clear language is now needed to create a crime. “A penal provision must be
definite”. It is a basic rule of legal jurisprudence that than an enactment is void for vagueness if
its prohibitions are not clearly defined. Pollock, CB said: “whether there be any difference left
between a criminal statute and any other statute not creating offence, I should say that in criminal
statute you must be quite sure that the offence charged is within the letter of the law.”

In the case of Feroze N. Dotivalaz v. P.M Wadhwani and co., this court stated:
“Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a
statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret
the term in a manner which may add something to the meaning of the word which ordinarily
does not so mean by the definition itself, more particularly, where it is a restrictive definition.
Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition
would not be expanded or made extensive to embrace things which are strictly not within the
meaning of the word as defined.”

In Anup Bhushan Vohra v. Registrar General, High Court of Judicature at Calcutta,

the Apex Court held that the contempt proceedings being quasi-criminal in nature, burden and
standard of proof is the same as required in criminal cases. The charges have to be framed as per
the statutory rules framed for the purpose and proved beyond reasonable doubt keeping in mind
that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any
punishment in contempt proceedings on mere probabilities; equally, the court cannot punish the
alleged contemnor without any foundation merely on conjectures and surmises. As observed
above, the contempt proceeding being quasi-criminal in nature require strict adherence to the
procedure prescribed under the rules applicable in such proceedings.

A man should not be goaled on ambiguity. Lord Esher, MR in formulating “the settled
rule of construction of penal sections” observed “if there is a reasonable interpretation which will
avoid the penalty in any particular case we must adopt that construction. If there are two
reasonable constructions then we must give the lenient one. The rule has been stated by Mahajan,
CJI in similar words: “If two possible and reasonable constructions can be put upon a penal
provision, the court must lean towards the construction which exempts the subject from penalty
rather than the one which imposes penalty. It is not competent to the court to stretch the meaning
of an expression used by the legislature in order to carry out the intention of the legislature.”

A Three-Judge Bench of this Court in the case of The Assistant Commissioner,

Assessment-II, Bangalore and Ors. v. Valliappa Textiles Ltd. and Ors., laid down:- “...Though
Javali (supra) also refers to the general principles of interpretation of statute the rule of
interpretation of criminal statutes is altogether a different cup of tea. It is not open to the court to
add something to or read something in the statute on the basis of some supposed intendment of
the statute. It is not the function of this Court to supply the casus omissus, if there be one. As
long as the presumption of innocence of the accused prevails in this country, the benefit of any
lacuna or casus omissus must be given to the accused. The job of plugging the loopholes must
strictly be left to the legislature and not assumed by the court.
 So when a statute dealing with criminal offence impinging upon the liberty of citizens, a
loophole is found, it is not for judges to cure it, for it is dangerous to derogate from the principle
that a citizen has a right to claim that howsoever his conduct may seem to deserve punishment,
he should not be convicted unless that conduct falls fairly within definition of crime of which he
is charged. The fact that an enactment is a penal provision is in itself a reason for hesitating
before ascribing to phrases used in the meaning broader than that they would ordinarily bear.
There is all the more reason to construe strictly a drastic penal statute which deals with crimes of
aggravated nature which could not be effectively controlled under the ordinary criminal law.

While interpreting penal statutes, it is clear that any reasoning which is based on the
substance of the transaction has to be discarded. It is the duty of the courts to apply the purpose
enshrined in the unambiguous language used by the Legislature irrespective of the fact that the
statute to be interpreted is a penal law. The courts are not allowed to give a wider meaning when
the legislature has already provided a comprehensive provision in the statute itself.

In a very recent matter of State of Rajasthan v. Vinod Kumar the Apex Court has
observed: - “awarding punishment lesser than the minimum prescribed under Section 376 IPC, is
an exception to the general rule. Exception clause is to be invoked only in exceptional
circumstances where the conditions incorporated in the exception clause itself exist. It is a settled
legal proposition that exception clause is always required to be strictly interpreted even if there is
a hardship to any individual. Exception is provided with the object of taking it out of the scope of
the basic law and what is included in it and what legislature desired to be excluded. The natural
presumption in law is that but for the proviso, the enacting part of the Section would have
included the subject matter of the proviso, the enacting part should be generally given such a
construction which would make the exceptions carved out by the proviso necessary and a
construction which would make the exceptions unnecessary and redundant should be avoided.
Proviso is used to remove special cases from the general enactment and provide for them
separately. Proviso may change the very concept of the intendment of the enactment by insisting
on certain mandatory conditions to be fulfilled in order to make the enactment workable”

In this matter the sentence of the respondents was reduced by the Hon’ble Rajasthan High
Court to a lesser punishment than that prescribed under Section 376 as mandatory unless the
exception is strictly complied with. The Apex Court observed that awarding punishment lesser
than the minimum sentence of 7 years was permissible only for adequate and special reasons.
However, no such reasons have been recorded by the court for doing so, and thus, the court
failed to ensure compliance of such mandatory requirement but awarded the punishment lesser
than the minimum prescribed under the IPC. Such an order is violative of the mandatory
requirement of law and has defeated the legislative mandate. Deciding the case in such a casual
manner reduces the criminal justice delivery system to mockery.

Purposive Interpretation Approach

It is not necessary that courts must always favour the interpretation which is favourable to
the accused and not the prosecution but it may also chose to go for the interpretation which is
consistent with the object provided in the law. In State of Maharashtra v. Tapas D. Neogy the
expression ‘any property’ in section 102 of Cr.P.C. was interpreted to be inclusive of a ‘bank
account’ and hence a police officer who was investigating the matter was justified in seizing the
same. This principle was first explained by James, L.J. who stated: “No doubt all penal statutes
are to be construed strictly, that is to say that the court must see that the thing charged as an
offence is within the plain meaning of the word used, and must not strain the words on any
notion that there has been a slip; that there has been a casus omissus; that the thing is so clearly
within the mischief that it must have been included if thought of.

In the case of Union of India v. Harsoli Devi, a Constitution Bench of this court laid
down: - “Before we embark upon an inquiry as to what would be the correct interpretation of
Section 28- A, we think it appropriate to bear in mind certain basic principles of interpretation of
statute. The rule stated by Tindal, CJ in Sussex Peerage case, (1844) 11 Cl & p.85, still holds the
field. The aforesaid rule is to the effect: “If the words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves do alone in such cases best declare the intent of the
lawgiver.”

It is a cardinal principle of construction of statute that when language of the statute is

plain and unambiguous, then the court must give effect to the words used in the statute and it
would not be open to the courts to adopt a hypothetical construction on the ground that such
construction is more consistent with the alleged object and policy of the Act.
 In Kirkness v. John Hudson & Co. Ltd., Lord Reid pointed out as to what is the meaning
of ‘ambiguous’ and held that – “a provision is not ambiguous merely because it contains a word
which in different context is capable of different meanings and it would be hard to find anywhere
a sentence of any length which does not contain such a word. A provision is, in my judgment,
ambiguous only if it contains a word or phrase which in that particular context is capable of
having more than one meaning.” It is no doubt true mat if on going through the plain meaning of
the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look
into the purpose for which the statute has been brought and would try to give a meaning, which
would adhere to the purpose of the statute.

Although, the person charged has a right to say that the thing charged although within the
words, is not within the spirit of enactment. But where the thing is brought within the words, and
within the spirit, there a penal enactment is to be construed, like any other instrument, according
to the fair commonsense meaning of the language used, and the court is not to find or make any
doubt or ambiguity in the language of the penal statute, where such a doubt or ambiguity would
clearly not be found or made in the same language in any other enactment.” Subbarao, J., has
observed: “the Act (Prevention of Corruption Act, 1947) was brought in to purify public
administration.

When the legislature used the comprehensive terminology- to achieve the said purpose, it
would be appropriate not to limit the content by construction when particularly the spirit of the
statute is in accord with the words used there.” On the same lines Hon’ble Supreme Court had
widely interpreted the Food Adulteration Act, 1954, while expressing the strong disapproval of
the narrow approach of construction to ensure that the adulterators do not exploit the loopholes
in the Act. Similarly, such pedantic interpretation has not been given in the cases relating to
section 498A of Indian Penal Code, section 12(2) of Foreign Exchange Regulation Act, 1947 etc.
The laws which have been framed for supporting the cause of offences against women have to be
sternly implemented to set an example before the others which may deter the prospective
criminals.

Suppression of the Mischief

 The language of the penal statute can also be interpreted in a manner which suppresses
the lacuna therein and to sabotage the mischief in consonance with the Heydon’s Case. For
instance in Ganga Hire Purchase Pvt. Ltd. Vs. State of Punjab, while interpreting the section
60(3) of Narcotic Drugs and Psychotropic Substances Act, 1985, the word ‘owner’ was given a
wider meaning for the purpose of confiscation of the vehicle used in furtherance of the offence
mentioned therein i.e. inclusive of the registered owner where the vehicle was purchased under a
hire purchase agreement when all the instalments were not paid by him.

In the matter of Manjit Singh @ Mange vs C.B.I., Hon’ble Supreme Court discussed the
interpretation of Terrorist and Disruptive Activities (Prevention) Act, 1987 in light of the
aforesaid principle. It was argued by Senior Advocate Mr. K.T.S. Tulsi, that prior approval was
required to be taken from the Superintendent of Police of the District, as required under Section
20-Aof the TADA Act, to try the accused for the offences under the TADA Act and the
Superintendent of Police, CBI was not the competent authority to give such permission. Learned
senior counsel submitted that the confessional statement of the co- accused because no prior
approval from the prescribed authority, as required under Section 20A of the TADA Act, had
been obtained. He also submitted that the penal provisions require to be strictly construed. Shri
P.P. Malhotra, learned Additional Solicitor General, submitted that when the investigation is
transferred to the CBI, with the consent of the State, the CBI takes over further investigation of
the case. Therefore, Superintendent of Police, CBI, was competent to record the confession made
by a person and the same is admissible in the trial of such person for an offence under the TADA
Act. He further submitted that the confessional statement of co-accused recorded before S.P.,
C.B.I., was admissible in evidence vide Section 15 of the TADA Act, which provides for the
recording of the confessional statements before the police officer, not lower in the rank than
Superintendent of Police, and it is made admissible even against co-accused, abettor or
conspirator and the bar under the Evidence Act and Criminal Procedure Code will not come into
play.

The Hon’ble Court observed that confessional statement is a substantive piece of

evidence and can be used against the co- accused by following the interpretation provided
in S.N. Dube vs. N.B. Bhoir, where the Apex Court observed that “Section 15 of the TADA Act
is an important departure from the ordinary law and must receive that interpretation which would
achieve the object of that provision and not frustrate or truncate it and that correct legal position
is that a confession recorded under Section 15 of the TADA Act is a substantive piece of
evidence and can be used against a co- accused also, if held to be admissible, voluntary and
believable.”

Mr. Tulsi used various judgments of the Apex Court includingDadi Jagganadhan v.
Jammulu Ramulu and Ors., where a Constitution Bench of this court observed: - “...The settled
principles of interpretation are that the Court must proceed on the assumption that the legislature
did not make a mistake and that it did what it intended to do. The Court must, as far as possible,
adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if
there is a defect or an omission in the words used by the legislature, the Court would not go to its
aid to correct or make up the deficiency. The Court could not add words to a statute or read
words into it which are not there, especially when the literal reading produces an intelligible
result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and,
by construction, make up deficiencies which are there. The learned counsel contended that under
Section 20A of the TADA, the sanction of the District Superintendent of Police is required to be
obtained before the police record any information about the commission of an offence under the
TADA. Since the same has not been obtained, the conviction of the accused cannot be sustained.
In the instant case, according to the learned counsel, the sanction was obtained from the S.P.,
C.B.I.

But the Hon’ble Court held that the phrase “District SP” has been used in order to take
the sanction of a senior officer of the said district, when the prosecution wants to record any
commission of a offence under the Act, the reason appears to be that the Superintendent of
Police of the District is fully aware of necessity to initiate the proceedings under the stringent
criminal law like the TADA Act. In the instant case, the State Government, in exercise of the
power conferred by Section 3 of the Delhi Police Special Establishment Act, 1946, has handed
over the investigation to CBI. The Hon’ble Court was inclined to hold that in matters concerning
national security, as is the case of terrorist acts, the Centre and an autonomous body functioning
under it would be better equipped to handle such cases. Therefore, `prior approval' by the SP of
CBI would adequately satisfy the requirements under Section 20A (1).
 Similarly in the leading matter of Reema Aggarwal v. Anupam Aggarwal, a broader
meaning was attributed to the application of sections 304B and 498A of the Indian Penal Code,
in light of the broader purpose which was sought to be achieved through these provisions and the
mischief which was required to be cured. It was also made applicable to the case where the
legitimacy of the marriage itself was in question to bring the accused within the purview of the
word ‘husband’ as used in the said provisions.

In Abhay Singh Chautala vs C.B.I. (on 4 July, 2011) the learned Senior Counsel Shri
Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants, urged that on the day when
the charges were framed or on any date when the cognizance was taken, both the appellants were
admittedly public servants and, therefore, under the plain language of Section 19 (1) of The
Prevention of Corruption Act, the Court could not have taken cognizance unless there was a
sanction from the appropriate government. The learned senior counsel analyzed the whole
Section closely and urged that in the absence of a sanction, the cognizance of the offences under
the Prevention of Corruption Act could not have been taken. It was also urged that a literal
interpretation is a must, particularly, to sub- Section (1) of Section 19. But the Apex Court
observed- : “...we, therefore, reject the theory of litera regis while interpreting Section 19(1)...
However, as per the interpretation, it excludes a person who has abused some other office than
the one which he is holding on the date of taking cognizance, by necessary implication. Once
that is clear, the necessity of the literal interpretation would not be there in the present case we
specifically hold that giving the literal interpretation to the Section would lead to absurdity and
some unwanted results ...hold that the appellants in both the appeals had abused entirely different
office or offices than the one which they were holding on the date on which cognizance was
taken and, therefore, there was no necessity of sanction under Section 19.”

c) Codifying statute- A codifying statute is one which codifies law. It brings all the
laws relating to one subject under one act.
A codifying statute is a statute which statutes exhaustively the whole of
the law upon a particular subject. The maker of law incorporates in the enactment
both the pre-existing statutory provisions and the common law relating to the
subject. Example: Bills of Exchange act, 1882. The main object of codifying a
 statute is to bring all the laws relating to the same subject under one roof or one
block or under one Act and to present uniform, orderly and authoritative rules on
a particular subject.
Example: Hindu succession Act. It codifies the law relating to intestate
succession among ‘Hindus’. A codifying statute may be a code only with respect
to a particular branch of subject.
Example: the payment of bonus act, 1965. It only deals with profit bonus. It
doesn’t deal with other categories of bonus such as customary bonus.
Codifying statutes bring an end to the conflict of decisions. A codifying
statute does not ex clued reference to earlier case laws on the subject for the
purpose of true interpretation of the words. The reference of the previous
legislations is for the reason of removal of ambiguity. The aim of codifying
Statute is to declare the law on the subject so that the judge, by true interpretation
of words decides the meaning within the parameter of such law.
In subba rao v Commissioner of income Tax, the supreme court held that
the income tax act, 1922 is a self- contained code exhaustive with the matters
dealt with therein, and its provisions show an intention to depart from common
rule law “qui facet per alium facit per se”.
Therefore codifying statutes can also be taken as external aid to
interpretation. Codifying statutes states exhaustively the whole of the law upon a
particular subject. The judge after looking in to the codifying statute will interpret
the meaning of a given term within the parameters of such law.

d) Generalia specialibus non derogant

Where there is a special provision specifically dealing with a subject, a general
provision, howsoever widely worded must yield to the former. This principle is
expressed by the maxim Generalia specialibus non derogant.
The aforesaid rule of construction was applied by the Supreme Court
in Venkataramana Devaru vs State of Mysore. In that case the Supreme Court applied
the rule to resolve conflict between Article 25 (2)(b) and 26 (b) of the Constitution. It
was held that the right of every religious denomination or any Section thereof to manage
its own affairs in matter of religion is subject to a law made by a State providing for
social welfare and reform or throwing open of Hindu religious institution of a public
character to all classes and sections of Hindus.
Article 25. (1) Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and the right freely
to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law—(a) regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.

Article 26. Subject to public order, morality and health, every religious denomination or
any section thereof shall have the right—(a) to establish and maintain institutions for
religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c)
to own and acquire movable and immovable property; and (d) to administer such
property in accordance with law.
In State of Gujarat vs. Ramji Bhai, Supreme Court taking note of the principle observed
as follows: “ Generalia Specialibus non derogant is a cardinal principle of interpretation.
It means that the general provisions must always yield to the special provisions.
Construed in accordance with this fundamental principle, the special class of unregistered
dealer covered by Section 33 (6) must be taken to have been excluded from the purview
of the general provisions in Section 35. Thus considered, it is clear that the case of an
unregistered dealer who evades tax by committing the double default specified in Section
33(6), action can be taken only under that Section and not under Section 35”.
Thus, it is well settled that if a special provision is made on a certain matter, that
matter is excluded from the general provision. In the event of conflict between a general
and a special provision, the latter must prevail. Differently stated the principle is that
general words in a Statute should not be held to repeal or rip up a specific provision upon
a particular matter. A general rule though stated in wide terms must be taken to be not
interfering with matters covered by a special provision.
In South India Corporation (P) Ltd. vs Secretary, Board of Revenue, Trivendrum, it
was held that the general provision under Article 372 of the Constitution regarding
continuance of existing laws is subject to Article 277 of the Constitution, which is a
special provision relating to taxes, duties, cesses or fees lawfully levied at the
commencement of the Constitution. In this regard, the Supreme Court observed as
follows:-
“With this background let u now consider the following two questions raised before us:
(i) whether Article 372 of the Constitution is subject to Article 277 thereof; and (ii)
whether Article 372 is subject to Article 278 thereof. Article 372 is a general provision’;
and Article 277 is a special provision. It is settled law that special provision should be
given effect to the extent of its scope, leaving the general provision to control cases
where the special provision does not apply. The earlier discussion makes it abundantly
clear that the constitution gives a separate treatment to the subject of finance and Article
277 saves the existing taxes etc. levied by states, if the conditions mentioned therein are
complied with. While Article 372 saves all pre-Constitution valid laws, Article 277 is
confined only to taxes, duties, cesses or fees lawfully levied immediately before the
Constitution. Therefore, Article 372 cannot be construed in such a way as to enlarge the
scope of the savings of taxes, duties, cesses or fees. To state it differently, Article 372
must be read subject to Article 277. We have already held that an agreement can be
entered into between the Union and the States in terms of Article 278 abrogating or
modifying the power preserved to the State under Article 277”.

In Gujarat State Co-operative Land Development Bank vs P.R. Mankad, the Supreme
Court applying the maxim generalia specialibus non-derogant held that a general
provision must yield to the special provision. Lord Hobhouse in Barker vs Edgar opined
that when the legislature had given its consent to a separate subject and made provision
for it, the presumption is that a subsequent general enactment is not intended to interfere
with the special provision unless it manifests that intention very clearly.

d) Harmonious construction.
 Harmony means peace. Peace is essential at times of war or internal conflicts. In legal
sphere, harmony is necessary when two or more provisions of the same Act or two different Acts
are conflicting with each other, the courts while interpreting those provisions will try to restore
peace/ harmony between them. Harmony is restored by removing the conflicting part and making
the provisions work in-toto.

When two or more provisions of the same statute are repugnant, the court will try to
construe the provisions by harmonizing them with each other. One provision of an Act doesn’t
make another provision of the same act void.

The legislature does not want itself to put in any dilemma by enacting 2 conflicting
provisions in the same Act or different Acts. But as human err sometimes the legislature makes
provisions which conflict with each other. At that time the courts apply Harmonious
Construction and try to balance conflicting sections. This is called Harmonious construction.

State of Bombay v F N Balsara, Constitutional validity of Bombay prohibition Act.

1949 was in question.– (Bombay legislation entry 31 list II) said that the state legislature has the
power to prohibit possession, use and sale of intoxicating liquor absolutely. Entry 19 list I-
import sale or possession of article imported into the country by a person residing in the territory
into which it is imported. The state legislature has encroached upon the powers of union by
enacting Bom P Act. Held: no conflict b/w entry 31 of list II and entry 19 of list I. Bombay
prohibition act does not encroach upon the field assigned to the federal legislature.

T.M.A pai foundation v state of Karnataka: Article 29 and 30 of the Indian constitution
should be interpreted harmoniously so that object and purpose can be achieved.
Art. 29 secure to every citizen the right to conserve its own language, script or culture.
Art. 30 guarantee every religious or linguistic minority, the right to establish and administer
educational institutions of their choice.
e) Noscitur a Sociis: which means meaning of a word should be known from its
accompanying or associating words. When two words which are analogous to
each other are clubbed together they are notgiven general meaning but are
 restricted to a sense analogous to a less general meaning. Such words colour each
other among them are ascertained by reference to the meaning of the other words
associated with it.
This rule of construction cannot prevail in cases where it is clear that wider
words have been deliberately used in order to make the scope of the defined
words wider. This rule is used when is associated with words of narrow meaning
which causes doubtfulness.
Lokmat newspaper vs Shankarprasad, it has been held that for the applicability
of this rule 2 words in the statute should have analogous meaning. Since in this
case the words “discharge” and “dismissed” did not have the same analogous
meaning, this rule did not apply.

Q. 9. ANSWER ANY 2.

a) The street offences act 1959 made it an offence to solicit customers in a public
place. Few prostitutes were charged under the law for soliciting public from
private premises in windows or on balconies. Decide with reference to
applicable rule of interpretation of statutes.

Answer: in the above case mischief rule of interpretation has to be applied. When applying the
mischief rule, the courts are obliged to consider the following:

 What was the law before the statute was passed?

 What was the mischief that the law did not remedy?
 What was the remedy the parliament intended to provide?
 What was the reason for the remedy?

This rule gives the court a justification for going behind the actual words of statute in order to
consider the problem that the particular statute was aimed at remedying.

The above case is very similar to the case Smith v. Hughes. The brief facts were that the
defendant was a common prostitute who lived at No. 39 Curzon Street, London, and used the
premises for the purposes of prostitution. On November 4, 1959, between 8.50 p.m. and 9.05
p.m. the defendant solicited men passing in the street, for the purposes of prostitution, from a
first-floor balcony of No. 39 Curzon Street (the balcony being some 8–10 feet above street
level). The defendant’s method of soliciting the men was

f) to attract their attention to her by tapping on the balcony railing with some metal
object and by hissing at them as they passed in the street beneath her and
g) having so attracted their attention, to talk with them and invite them to come
inside the premises with such words as ‘Would you like to come up here a little
while?’ at the same time as she indicated the correct door of the premises.
h) It was contended on behalf of the defendant, inter alia, that the balcony was not
‘in a Street’ within the meaning of section 1(1) of the Street Offences Act, 1959,
and that accordingly no offence had been committed. “The sole question here is
whether in those circumstances the appellant was soliciting in a street or public
place. The words of s. 1(1) of the Act are in this form: ‘It shall be an offence for
a common prostitute to loiter or solicit in a street or public place for the purpose
of prostitution’.
Lord Parker CJ said that she ‘being a common prostitute, did solicit in a
street for the purpose of prostitution, contrary to section 1(1) of the Street
Offences Act, 1959.’ It was found that the defendant was a common prostitute,
that she had solicited and that the solicitation was in a street. The defendants in
this case were not themselves physically in the street but were in a house
adjoining the street, on a balcony and she attracted the attention of men in the
street by tapping and calling down to them. At other part the defendants were in
ground-floor windows, either closed or half open. The sole question here is
whether in those circumstances each defendant was soliciting in a street or public
place. The words of section 1(1) of the Act of 1959 are in this form: ‘It shall be
an offence for a common prostitute to loiter or solicit in a street or public place
for the purpose of prostitution.’ Observe that it does not say there specifically
that the person who is doing the soliciting must be in the street. Equally, it does
not say that it is enough if the person who receives the solicitation or to whom it
 is addressed is in the street. For my part, I approach the matter by considering
what is the mischief 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 prostitutes. Viewed in that way,
it can matter little whether the prostitute is soliciting while in the street or is
standing in a doorway or on a balcony, or at a window, or whether the window is
shut or open or half open; in each case her solicitation is projected to and
addressed to somebody walking in the street. Thus she was held liable.

From this we can conclude that the prostitutes soliciting from the windows or balconies can also
be held as an offence.

b) Industrial disputes act provides that a party cannot be represented by a legal

practitioner before labour court, tribunal or national tribunal. Whereas the
advocates act confers right to practice on every advocate before any authority.
How to resolve the clash?

In this case the industrial disputes act is an earlier special law and the advocates act is a later
general law. The general principal is that an earlier special act does not impliedly repeal the later
general law, unless both the provisions cannot stand together.

In Paradip port trust vs. their workmen, the court held that the industrial dispute act is not in
conflict with the advocates act as Sec 36(4) of the industrial disputes act states that “ a party to
the dispute may be represented by a legal practitioner with the consent of the other parities to the
dispute”.

From this case we can see that sec 36(4) does not bar the advocates to represent their clients
completely, it just puts a condition. Thus in the above case both the provisions can operate in
their respective fields.

c) Employer has to pay maternity benefit by way of wages for the actual period of a
woman’s absence for six weeks under maternity benefit act while calculating
 wages he excludes Sundays. Meena questions it and claims that she should get
wages for Sunday also. Advice her with the help of suitable rule.

Beneficent construction has to be in the above case as Maternity benefit act is a beneficial or
welfare legislation. Beneficial legislation should be given widest possible interpretation within
the corners of its wordings. This above case is similar to B Shah vs. Presiding officer, labour
court, in this case it was held that sec 5 of the maternity benefit act says that the employer is
liable to pay maternity benefit to woman workers at the rate of average daily wages for the
period of her actual absence immediately preceding and including the day of her delivery and for
6 weeks immediately following that day. The question here was whether Sundays are to be
included. The SC held that this act being a beneficent legislation, it is enacted for the benefit of
the working mothers hence it was held Sundays are also included.