Contemporanea Expositio

CHAPTER I

INTRODUCTION AND BASIC MEANING

Contemporanea Expositio The doctrine/rule/maxim of Contemporanea Expositio holds that a construction which has been long adopted and publically acted upon, will not be lightly disturbed by the courts.1 Contemporanea expositio est optima et fortissinia in lege: meaning Contemporaneous exposition is the best and strongest in law.2 Contemporaneous Construction is the construction placed upon the statute by its contemporaries at the time of its enactment and soon thereafter. The rule of construction by reference to Contemporanea Expositio is a well established rule for interpreting a statute by reference to the exposition it has received in the past from contemporary authority, though it is considered inapplicable, even in case of contemporary statutes when the language of such statute is plain and unambiguous.3 The rule is described well in Crawford on Statutory Construction4 where it is stated in para 219 that administrative construction (i.e. contemporaneous construction placed by administrative executive officers charged with executing a statute) generally should be clearly wrong before it is overturned. Such a construction commonly referred to as practical

R. c. Cutbush (1867) LR 2 QB 379 ; 36 LJMC 70; Migneault v. Malo (1872) LR 4 PC 123; Gorham v. Bishop of Exter (1850) 15 QB 52: 19 LJQB 279: 117 ER 377 2 Blacks Law Dictionary 3 Municipal Corporation Chandigarh v. M/S Shantikunj Investment Pvt. Ltd. AIR 2006 SC 1270: 2006 AIR SCW 1169 at p. 1183; J.K. Cotton Spinning and Weaving Mills Ltd. V. Union of India AIR 1988 SC 191 4 G.P.Singh (1904 Edn.)

construction, although non controlling (non-binding) is never the less entitled to considerable weight; it is highly persuasive.5 The Validity of this rule was also recognized domestically in Baleshwar Bagarti v. Bhagirathi Das6, where Mukherjee J. Stated the rule in the following terms: It is well settled principle of interpretation that courts in construing a statute will give mich weight to the interpretation put upon it at the time of its enactment and since by those whose duty it has been to construe, execute and apply It is generally accepted under this maxim that the court can reply upon for construction of a statute, whenever the terms of such statute are vague and ambiguous, upon the meaning that was given to said statute by its contemporaries because such meaning is more likely to reveal the true meaning than the meaning given to it by men of a different age or generation. And the meaning given by contemporaries can be revealed with high certainty by resort to common usage and practice under the statute, which has crystallized over a considerable period. Hence resort may also be made to the usage or course of conduct based upon a certain construction of the statute, soon after its enactment and acquiesced in byt he courts and the legislature for a long period of time. Upon the enactment of the statute the history of how it has been enacted forms a part of Contemporanea Expositio and may also be used to throw light upon legislative intention. Also under the doctrine, as a result of obvious implication the later history may be used to assert how the enactment has been regarded in the light of development from time to time.7

See K.p Verghese v ITO, Erunakulam, AIR 1981 SC 1922 at p. 1932. Baleshwar Bagarti v. Bhagirathi Das (1908) ILR 35 Cal 701; Desh Bandhu Gupta and Co. v. Delhi Stock Exchange Ltd. AIR 1979 SC 1049; Mathura Mohan Saha v. Ramkumar Saha AIR 1916 Cal. 136 6 1908 ILR 35 Cal 701 7 B. Prabhakar Raov. State of Andhra Pradesh AIR 1986 SC 210; (1985) Supp 2 SCR 573, Referred in SubCommittee of Judicial Accountability v. Union of India AIR 1992 SC 320.

CHAPTER II RATIONALE OF CONTEMPORANEA EXPOSITIO

One of the strongest arguments in the favour of Contemporanea Expositio is that the Judges who lived at or about that time when the statutes were made were best able to judge the intentions of the makers at that time.8 In case of ancient or contemporary statutes there may be great difficulty in the interpretation or construing the meaning of said document or statute, and the meanings of the words employed, and in that case evidence of usage is admissible will show what the meaning attached to the document was after its execution by those interested in its interpretation. There is a probability that at least some of these persons would have insisted on the correct interpretation of the statute and if a certain interpretation has been adopted and acquiesced in for a long period of time this affords a huge probability of its correctness. Referring to the Magna Carta, Lord Coke Said This and the like were the forms of an ancient acts and Graunts, and the ancient Act and graunts must be construed and taken as the law was holden at that time when they were made.9 A uniform notorious practice continued under an old statute and inaction of the legislature to amend the same are important factors to show that the practice so followed was based on correct understanding of the law . Communis opinion, Lord Ellenborough said: is evidence of what the law is.10 There would be no safety for property or liberty if it could be successfully contended that all
8

Morgan v. Crawshay (1871) LR 5 HL 304: 40 LMJC 202: 24 LT 889:20 WR 554, Governors of Campbell College v. Commr. Of Valuation 1964 1 WLR 912: (1964) 2 ALL ER 705 (HL) 9 Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159, p. 162 :1962 (3) SCR 146 10 Isherwood v. Oldknow (1815) 3 M & S 382, p 196;Bastin v. Davies (1950) 1 ALL ER 1095 p. 1098

lawyers and statesmen have been mistaken for centuries as to the true meaning of an old act of the Parliament.- Lord Campbell.11 When the practice receives judicial or legislative approval it gains additional weight and is to be more respected. As stated by Martin B In construing old statutes it has been usual to pay great attention to the construction out upon them by the judges who lived at or soon after the time they were made because they were best able to judge of the intention of the makers at the time.12 The doctrine of stare decisis may also be applied when the law is settled in a State for over 100 years by considered view of the High Court of that State.13 As to legislative approval to a departmental practice LORD MACHNAGHTEN said, When you find legislation following a continuous practice repeating the very words on which that practice was founded, it may perhaps fairly be inferred that the Legislature in re-enacting the statute intended those words to be understood in their received meaning. And perhaps it might be argued that the inference grows stronger with each successive re-enactment.14 In Craies on Statute Law15 it is stated that : when a particular form of legislative enactment which has received authoritative interpretation, whether but Judicial Decision or by a long course of practice, is adopted in the framing of a later statute it is a sound rule of construction to hold that the words so adopted were intended by the legislature to bear the meaning which had been so put upon them. Conversely if we find that the language employed by the legislature intended he earlier statutes on a particular subject has been departed from in subsequent statute relating to the same subject, it is generally, but not always a fair presumption that the alteration in the language used in the subsequent statute was intentional In Odgers construction of deeds and statutes 16 it has been further stated in the construction of ancient grants and deeds there is no better way of construing them than by usage: Contemporanea Expositiois is the best way to go by17 In construing such an instrument you may look to the usage to see in what sense the words were used at that time.18
11 12

Gorham v. Exeter (BP) (1850) 15 QB 52 p. 74 117 ALL ER 377 p. 386 Supra at 8 13 Ram Adhar Singh vs. Bansi, (1987) 2 SCC 482, p.485. 14 Commissioner for Special Purposes of Income-tax vs. Pemsel, (1891) AC 531, pp. 590, 591 (HL). 15 th 6 ed. 1963, pp 139, 141 Referred to in Basti Ram v. Ghewarchand AIR 1979 Raj 148 at pp. 155-156 16 See 1967 ed., Third Indian Reprint, 2003 , p. 122 17 Att. Gen. v. Parker (1747) 3 ATK 576 18 Drummond v. Att. Gen for Ireland (1849) 2 HLC 837

Contemporaneous usage is indeed a strong ground for the interpretation of doubtful words and expressions.19 According to Maxwell20, It is said that the best exposition of a statute or any other document is that which it has received form contemporary authority. Where this has been given by enactment of judicial decision it is of course to be accepted as conclusive The rationale behind the rule of Contemporanea Expositio has been well explained in the case of Desh Bandhu Gupta and Co. V. Delhi Stock Exchange Association Ltd. 21 It is said in this case The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the question of construction.3 In Crawford on Statutory Construction,4 it has been stated that administrative construction (i.e., contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight; it is highly persuasive. This case further took the help of the cases of Baleshwar Bagarti v. Bhagirathi Dass 22 which reiterated a principle stated by Mookerjee J., in Mathura Mohan Saha v. Ram Kumar Saha23 as : It is well-settled principle of interpretation that Courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it-I do not suggest for a moment that such interpretation has by any means a controlling effect upon the Courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a Court would without hesitation refuse to follow such construction'.

The Rationale behind the rule has also been explained very well in an English case of R. vs. Casement24where it was said amongst other things that the meaning publicly given by
19 20

Ibid. th Interpretation of Statutes, 12 ed. P. 264 21 AIR 1979 SC 1049; (1979) 4 SCC 565, reffered in Kuldip Nayar v. Union of India, Air 2006 SC 3127 at p. 3160 22 ILR 35 Cal 701 at p. 713 23 AIR 1916 Cal 136 : ILR 43 Cal 790

contemporary or long professional usage is presumed to be true one, even where the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near that time when it was passed may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation, as well as with the sense then attached to legislative expressions. Moreover, the long acquiescence of the legislature in the interpretation put upon its enactment by notorious practice may, perhaps be regarded as some sanction and approval of it

24

(1917) I.K.B.98

CHAPTER III

SCOPE OF THE MAXIM

Scope of the Maxim Even though the principle of Contemporanea Expositio has a very wide application in the field of interpretation of statutes, but does not have universal application. Each case must be considered on its own facts. A construction practice having force of law and being followed for a number of years, no doubt is entitled to respect in terms of persuasive and sometimes binding value, but its application per-se is not immune to Judicial Review.25 In fact the application of the rule of Contemporanea Expositio as has been mentioned earlier is limited only to cases: 1. Where the statute in question is an old statute and not a modern statute26 2. Where the terms of said statute are not clear and are unambiguous It is also of importance to note that the Rationale behind the application of the rule as has been elucidated in the previous chapter is also based on the fulfilment and the strict limited application of the rule only in the cases described above. Subject to the use made of contemporary official statements and statutory instruments the principle of Contemporanea Expositio is inapplicable to modern statutes.27 Even of the people who made the statute interpreted it in a certain way the court cannot be stopped form giving a different interpretation which might actually be the true interpretation of the

25

Bombay Dyeing and Mfg. Co. Ltd., Bombay v. Bombay Environmental Action Group, AIR 2006 SC 1289 at p. 1534 26 Clyde Navigation Trustees v. Laird(1883) 8 AC 658, Assheton Smith v. Owen (1906) 1 Ch 179; Goldsmiths Co. v. Wyatt (1907) 1 KB 95, Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159, Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 828; J.K.Cotton Spinning and Weaving Mills Ltd. v. Union of India AIR 1988SC 191 Doypack Systems Pvt. Ltd. v. Union of India AIR 1988 SC 782 27 Supra at 26

statute.28 The doctrine according to Lord Upjohn is confined to the construction of ambiguous language used in very old statutes where indeed the language itself have had a different meaning in those days.29 In a modern progressive society it would be unreasonable to confine the intention of the legislature to the meaning attributable to the word used at the time the law was made and unless contrary intention appears, an interpretation should be given to the words used to take in new facts and situations if the words are capable of comprehending them.30 Lord Watson stated the rule in the following words : In my opinion such usage has been termed Contemporanea Expositio is of no value in construing a British statute of the year 1858. When there are ambiguous statements in an act passed one or two centuries ago it may be legitimate to refer to the construction put upon their expression throughout a long course of years by the unanimous consent of all parties interested as exercising what must presumably have been the intention of the legislature at the remote period. But i bound to construe a recent statute according to its own terms.31 It is respectfully submitted that even if the persons who dealt with the Act understood it in a particular manner, that does not prevent the Court in giving to the Act its true construction.32 The doctrine Contemporanea expositio is confined to the construction of ambiguous language used in very old statutes where in fact the language itself had a rather different meaning in those days. The Supreme Court has refused to apply the principle of Contemporanea expositio to the Telegraph Act, 188533, and the Evidence Act, 187234. However, this doctrine was applied in construing the Bombay Municipal Corporation Act, 1880. 35 The principle was also referred to in construing section 21 of the Indian Penal Code 1860 and in holding that an M.L.A us not a public servant as defined therein.36 The supreme court also referred to the actual practice in the matter of appointment of judges of Supreme court and High Courts in
28 29

Punjab Traders v. State of Punjab AIR 1990 SC 2300 Governors of Campbell College v. Commr. Of Valuation (1964) 1 ALL ER 705 30 J.K.Cotton Spinning and Weaving Mills Ltd. v. Union of India AIR 1988SC 191 ; Senior Electric Inspector v. Laxmi Narayan Chaopra AIR 1962 SC 159 31 Clyde Navigation Trustees v. Laird(1883) 8 AC 658; Goldsmiths Co. v. Wyatt (1907) 1 KB 95; Doypack Systems Pvt. Ltd. v. Union of India AIR 1988 SC 782 32 Punjab Traders vs. State of Punjab AIR 1990 SC 2300 at page 2304 33 Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159 34 Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 828 35 (National & Grindlays Bank vs. Municipal Corporation of Gr. Bombay AIR 1969 SC 1048). 36 R.S.Nayak v. A.R.Aunteley (1984) 2SCC 183

the context of Interpreting Articles 74 and 124 of the Constitution and observed that the practice being in conformity with constitutional scheme should be accorded legal sanction by permissible constitutional interpretation. 37 A question as to the application of the rule of Contemporanea Expositio arose before the House of Lords in the recent case of Governors of Campbell College v. Commr of Valuation38. The governors of a feel paying public school claimed that the school was exempted from rates being used for charitable purposes within section 2 of the of the Valuation (Ireland) Amendment Act 1854. It was accepted that if the test in Pemsels case39 applied the school would be entitled to the exemption, for educational purposes were in law, Charitable purposes. It was however contended from the opposite side that under a long standing practice supported bu Alexandra Colleges Case40 the exemption had been confined to those educational institutions whose charitable purposes were concerned with the education of the poor. The house of Lords held that the decision of the case of Alexandra Colleges Case was unsupportable and the schiil was entitled to the exemption. Viscound Radcliffe pointed out that the decision rendered in 1914 relating to the act of 1854 was not Contemporanea Expositio.41Lord Upton in the same case said For my part I am quite unable to apply that principle to a statute although it was passed a Hundred years ago whose language is plain and unambiguous and was not misconstrued until the decision in Alexandra Colleges Case sixty years later. The application and scope of the rule of Contemporanea Expositio is extremely limited especially in cases where the application had no legal basis, and the law may be overruled even if such practice had consequently achieved the backing of judicial decisions and especially so in case, in the changed circumstances its continuance let to great hardship. So the house of lords in 1969 overruled a century old practice of assessing compensation by reference to values prevailing at the date of notice to quit and held that the same should be assessed with reference to the values prevailing when possession is taken or when assessment

37 38

SC Advocates on Record Assn. v. Union Of India AIR 1994 SC 269 (1964) 2 ALL ER 705 p. 727 39 (1891) AC 531 (HL) 40 (1914) 2 Ir R 447 41 (1964) 2 ALL ER 705 p. 727

is made.42 And similarly the House of Lords overruled a long standing judicial acceptance of the meaning of the word wilfully as that had operated to the prejudice of the accused.43 But a uniform and consistent departmental practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the court and would not be disregarded except for cogent reasons. The controlling effect if tgus aid which is known as executive construction would depend upon various factors such as the length of time for which it is followed, the nature of rights and property affected by it, if injustice resulting from the departure and the approval that it has been received in judicial decisions or in legislation. In the instant case a service rule enabled section officers possessing a recognized degree in civil Engineering or an equivalent to claim promotion if they had put in three years service in the grade where as six years were required for a diploma holder. In case the officer obtained the degree during service, the question before the court now became whether the time period of three years was to be counted from the date the officer obtained the degree or from the original date of joining service. According to the long continuing practice the period of three years was counted from he date the degree was obtained and this practice was duly followed in this case in construing the rule in light of the principle of contemporanea exposition. The court in this regards said if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. This principle was applied in construction of the expression capital employed in section 80 J of the Indian Income Tax Act 1962 and in upholding the validity of rule 19A of the Income tax rules which requires the exclusion of borrowed moneys from computation of capital employed.44 In the case of State of Nagaland v. Ratan Singh 45 the question before the supreme court was with regards to the Scheduled Districts Act 1874 which authorized the local government ro appoint officers t administer civil and criminal justice and to regulate the procedure of officers so appointed. In negating the contention that the authority conferred was merely to
42 43

Birmingham City Corporation v. West Midland Baptist (1969) 3 ALL ER 172 (HL) R. Shephard (1980) 3 ALL ER 899 44 Lohia Machines Ltd. v. Uinion of India(1985) 2 SCC 197 45 AIR 1967 SC 212

make administrative rules and not subordinate legislation pertaining to the procedure to be followed in deciding cases the SC referred to the rules of 1872, 1874 ,1906 and 1937 containing comprehensive rules of procedure and said it is clear that a succession of officers saw the necessity if rules controlling not only the administrative side but also the judicial side of administration of justice. In construing the word houses in the Section 89 of the Bombay Village Panchayats Act 1933 the SC relied upon the rules made in 1934 which used the word building in place of houses as one of the aids for holding that the word houses also includes all buildings whether used for residential or commercial purposes and not just for dwelling purposes. A Circular can be read as a contemporaneous understanding and exposition of the intention and purport of the Notification. Courts have treated contemporary exposition and used them as aids to interpret even recent statutes. Thus in Collector v. Andhra Sugar,46 the Supreme Court observed:

"It is well settled that the meaning ascribed by the authority issuing the Notification is a good guide of a contemporaneous exposition of the position of law. Reference may be made to the observations of this Court in K.P. Varghese v. Income Tax Officer, Ernakulam47 It is a well settled principle of interpretation that Courts in construing a statute will give much weight to the interpretation put upon it at the time 9f its enactment and since, by those whose duty has been to construe, execute and apply the same enactment."

The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes, but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used, It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive

46 47

AIR 1989 SC 626 AIR 1981 SC 1922

society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.48 It should also be noted that the principles of Contemporanea Expositio and executive construction though relevant for solving a case of an ambiguity cannot be used for bringing about an implied repeal or quasi repeal.49

48 49

Senior Electric Inspector v. Laxminarayan Chopra AIR 1962 SC 159, p. 162 :1962 (3) SCR 146 Municipal Corporation for the city of Pune v. Bharat forge Col. Ltd. 1995 (2) Scale 245