INTERPRETATION OF STATUTES

: LONG ANSWERS MADE PRECISE:

Q. 1. Explain Retrospective operation of Statutes. OR Discuss fully the rule against
retrospective operation. Are there any exception to this Rule?
A.1 Every statute is prima facie prospective unless it is expressly or by necessary implication
made to have retrospective operation. The rule in general is applicable where the object of
statute is to affect vested rights or to impose new burdens or to impair existing obligations.
Unless there are words in the statute sufficient to show the intention of the legislature to affect
existing rights, it is deemed to be prospective only. The maxim having meaning as “A new law
ought to impose from on what is to follow, not on the past” is the foundation of the rule that a
statute will not be presumed to have retrospective effect.

Four facts held to be relevant:

1. General scope and purview of the statute.
2. The remedy sought to be applied.
3. The former state of law.
4. What it was the legislature contemplated (thought about it).

1. Power to make retrospective Laws:

The Union Parliament and State Legislature have plenary powers of legislation within the fields
assigned to them and subject to certain constitutional and judicially recognised restrictions. It
can legislate prospectively as well as retrospectively, and competence to make a law for past
period on a subject depends on the present competence to legislate on that subject. The power
to make retrospective legislation enables the legislature to obliterate (wipe-out) an amending
Act completely and restore the law existed before the amending Act. This power has also been
used for validating prior executive and legislative acts by retrospectively curing the defect which
led to their invalidity and even making ineffective, the judgments of competent courts declaring
the invalidity. Thus, if the State legislature passes and Act on a subject which falls outside its
competence and within the competence of Parliament and is for that reason held invalid,
Parliament can by passing a retrospective Act which incorporates the State Act cure the
invalidity.

2. Statutes dealing with substantive rights:

It is rightly observed that, Provisions which touch a right in existence at the passing of the
statute are not to be applied retrospectively in the absence of express enactment or necessary
intendment. It requires that close attention must be paid to the language of the statutory
provision for determining the scope of retrospectivity intended by Parliament. Presumption
against Retrospectivity may be rebutted by necessary implication in a case where new law is
made to cure an acknowledged evil for the benefit of the community as a whole. A distinction is
made between an existing right and vested rights that the rule against retrospective
constructions is applied only to save vested rights and not existing rights.

3. Statutes dealing with procedure:

In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of
procedures are presumed to be retrospective unless such construction is textually inadmissible.
Lord Denning stated “the rule that an Act of Parliament is not to be given retrospective effect
applies only to statutes which affects vested rights. It does not apply to statutes which only alter
the form of procedure or the admissibility of evidence or the effect which the courts to
evidence.

4. Recent statement of the rule against Retrospectivity:

The classification of a statute as either substantive or procedural does not determine whether it
may have retrospective operation. For example, a statute of limitation is generally regarded as
procedural but it its application to a past cause of action has the effect of reviving or
extinguishing a right of suit such an operation cannot be said to be procedural. It has also been
seen that the rule against retrospective construction is not applicable merely because a part of
the requisites for its action is drawn from a time antecedent to its passing. Thus, rule against
Retrospectivity of statutes, in recent years, is avoiding the classification of the statutes into
substantive and procedural and avoiding use of words like existing or vested.

5. Language not always decisive.

The language used is the most important factor in question on applicability of a particular
statute to past events but it cannot be said that the use of present tense of present perfect
tense is decisive of the matter that the statute does not draw upon the past effects for its
operation. For example the words “if a person has been convicted” were construed to include
anterior convictions. Similarly, the words “has made”, “has ceased” “has failed” and “has
become” may denote events happening before or after coming into force of the statute. All that
is necessary is that the event must have taken place at the time when action on that account is
taken under the statute.

The intention of the legislature is to be gathered from the language used, an object of the
statute, nature of affected rights and the circumstances in which the statute is passed.

In an English case, it was stated that, the true principle is that Parliament is presumed not to
have intended to alter the law applicable to past events and transactions in a manner which is
unfair to those concerned in them unless a contrary intention appears. It is not simply classifying
the enactment as retrospective or not retrospective. Rather it may well be matter of degree the
greater the unfairness, the more it is to be expected that Parliament will make it clear if that is
intended. It was seen that the question of fairness will have to be answered in respect of
particular statute by taking into the following factors:
a) Value of the rights which the statute affects.
b) The extent to which that value is diminished or extinguished by the suggested retrospective
effect of the statue.
c) Unfairness of adversely affecting the rights.
d) Clarity of language used by the Parliament.
e) The circumstance in which legislation was created.

Q.2. Explain Interpretation of Penal Statutes.

A.2. Penal Statutes are prospective by the reason of the Constitutional restrictions under Article
20 of the Constitution of India. If the Act creates new offence, it will bring into fold only those
offenders who commit all ingredients of the offence after the Act comes into operation.

If a statute laid mandatory duty but provided no mode of enforcing it, the presumption in ancient
days was that the person in breach of the duty could be made liable for contempt of the statute.
This rule of construction is now obsolete and has not application in modern statute. Clear
language is now needed to create a crime. A statute enacting an offence or imposing a penalty is
strictly construed. The rule exhibits a preference for the liberty of the subject and in case of
ambiguity enables the court to resolve the doubt in favour of the subject and against the
legislature which has failed to express clearly. The rule stated by C.J. Mahajan is also relevant
“if two possible and reasonable constructions can put upon a penal provision the court must lean
towards that construction which exempts the subject from penalty rather than one which
imposes penalty. It is not competent to the court to state the meaning of an expression used by
the legislature in order to carry out the intention of the legislature”.

However, this rule of construction does not prevent the court in interpreting a statute.
Therefore, in a case, Psychiatric injury caused by silent telephone calls was held to amount to
“assault” and “bodily harm” under Offence against the person Act, 1861.

According to Friedman, the guiding principles to this rule are:

1. It is beyond the province of courts to create basically new offences. These are properly
province of legislature.
2. Where a court is faced with conflicting interpretations of the language of a statute, either of
which is compatible with the reasonable cannons of construction, it must balance the
legislative purpose of the statute in the light of object matter and policies at stake with
principle that a person should not be convicted of an offence which he can reasonably regard
as a non-criminal action.
3. Undue emphasis on either the liberty of the individual or security and order in the society to
which the Act is directed is not required, for that would impede (prevent/obstruct) harmony
and hamper public good as well as social weal (deep mark of slap) and peace. It is in the
interest of everyone that the serious crimes should be effectively investigated and
prosecuted. There must be fairness to all the sides. In a criminal case this requires the court
to consider triangulation of interest. It involves taking into consideration the position of
accused, the victim and his or her family and the public. Therefore, in ensuring a fair trial in
a criminal case it will not be correct to say that it is only the accused who must be fairly
dealt with. “The society at large and victims or their family members have right to be dealt
with fairly”.

The contents of the rule and its limits are summed up in the following propositions:
a. If the prohibitory words in their known signification cover only some class of persons or some
well-defined activity, their import cannot be extended to cover other persons or other
activity on considerations of Policy or object of the statute.
b. If the prohibitory words are reasonably capable of having a wider as also a narrower meaning
and if there is no indication in the statute or in its policy or object that the words are used
in wider sense, they would be given narrower meaning. In other words where after full
consideration it is found that the prohibitory are equally open to two constructions. One of
which covers the subject and other does not. The benefit of construction will be given to the
subject.
c. If the prohibitory words in their known signification can reasonably bear a wider meaning
which promote the object or policy of the statute the words will receive that wider meaning
and their import will not be restricted even if when construed literally they bear a narrower
meaning
d. If the literate reading of the prohibitory words produces an unintelligible or non-sensual or
socially harmful result, but the statute read as a whole gives out its meaning clearly, effect
will be given to that meaning by curing a mere defect in phraseology and even by rejecting
words as surplusage (foreign to subject matter and surplus, extraneous, impertinent,
superfluous or unnecessary).

In case of Sanjay Dutt V. State through CBI Bombay, it was held that the rigour of a provision in a
criminal statute may provoke the court to tone it down by reading an implied escape clause. In
this case, Section 5 of the Terrorist and Disruptive Activities (Prevention) /act, 1987 (TADA) was
construed. This section provided that where any person, in possession of any any arms and
ammunition specified in columns 2 and 3 of the category I or category III(a) of Schedule I of the
Arms Rules, 1962 or bombs dynamite or other explosive substances unauthorisedly in a notified
area he shall notwithstanding anything contained in any other law for the time being in force, be
punishable with imprisonment for a term which may extend to imprisonment to life and shall also
be fine”

Section 5 of the Act require three ingredients to be proved for an offence falling under the
section:
i) Possession of any of the specified arms and ammnitions.
ii) Unauthorisedly.
iii) In a notified area.

This section did not provide that the accused could in any way escape punishment if the
aforesaid three ingredients were established. However, it was held that possession of
unauthorised arms etc. in a notified area raised a presumption that arms etc. were meant to be
used for a terrorist or disruptive activity, which was in effect and thereof third ingredient the
accused was entitled to rebut this presumption and escape punishment under Sec. 5 by proving
that his unauthorised possession of arms was wholly unrelated to terrorist or disruptive activity
and the same was used, neither it was available in that area for any such activity and its
availability in notified area was innocuous (non-harmful). The penal statutes to be construed
strictly in favour of the accused person because element of life and liberty was involved in this
case.

Q.3. Explain the Doctrine of Pith and Substance.

A. 3. This principle means that if an enactment substantially falls within the powers conferred by
the Constitution upon the legislature by which it was enacted, it does not become invalid merely
because it incidentally touches upon subjects within the domain of another legislature as
designated by the Constitution.

Consequently, the principle is invoked to judge the legislative competence of a legislature with
regard to a particular enactment on the question as to whether that legislature was empowered
to make law or that subject as per the entry in the list. The question before the court stands
whether a law purporting to be made upon one or more legislative entries in the list. The
question before the court stands whether a law is authorised list is in fact legislation within those
entries only or is it a law enacted under any other entry in another list in which that legislature
is not competent to enact law, and this question is resolved by applying the principle of Pith and
Substance.

The phrase raises in a convenient form an appropriate question in cases where the real issue is
one of the subject matter of a particular list and it may also serve a useful purpose in the
process of deciding whether a particular enactment is a law with respect to competent subject
matter or whether it is a law with respect to some other subject matter which incidentally
trenches upon the other non-competent subject matter. The question whether the legislature
has kept itself within the jurisdiction assigned to it or has encroached upon a forbidden field is
determined by finding out the true nature and character or by pith and substance of the
legislation which may be different from its consequential effects. If the pith and substance is
covered by an entry within the permitted jurisdiction of the legislature any incidental
encroachment in the rival field is to be disregarded.

A law made by a state legislature with respect to a matter in the concurrent list if repugnant to a
law made by Parliament will be void to the extent of the repugnancy unless the state law has
received the assent of the President, in which case it will prevail in that state (Article 254 of
Constitution of India). When a Central Act is enacted earlier, although brought into force later to
the law enacted by the state which has received the assent of the parliament, the central Act
being earlier law will give way to the state law on matters covered by it.
The assent of the president which gives primacy to the state Act has to be given after due
consideration. The primacy of the state law will therefore be, restricted against the law enacted
by parliament which is mentioned in the proposal for seeking assent of the president to the state
law and the primacy of the state law will not extend against any other law enacted by
Parliament which is not mentioned in the proposal. But the assent of the President to the state
law does not prevent parliament from enacting later any law with respect to the same matter
including a law adding, amending or repealing the state law.

Repugnancy may also arise outside the concurrent list for a state legislature’s power, even in
respect of matters in the exclusive state list is subject to parliament’s power to make laws in
respect of matters in list I and list III. Because of Doctrine of Pith and Substance which permits
incidental encroachment in the rival field. It is possible that a law made by a state legislature,
which in pith and substance is a law in respect of matter in list II has made incidental
encroachment on some matter in list I. Such an incidental encroachment will be valid if the field
of encroachment is not is not covered. But, it will be void to the extent of repugnancy, if the
field be already covered or it will become void if the field be later covered by a law made by
Parliament.
But when a Central Act which is in pith and substance is a law in respect of list I, incidentally
encroaches upon a matter in list II and thereafter state legislature covers the field of
encroachment by enacting a law which in pith and substance relates to a matter in List II as the
exclusive power of the State legislature in respect of List II under Article 246(3) is subject to
clauses (1) and in respect of List I and List III as the power of the Parliament in respect of List I,
the answer may be that the Central Act will still be effective and State Act to the extent of
encroachment by the Central Act will be ineffective. The observations of Justice Balakrishnan are
“Although Parliament cannot legislate on any of the entries in state list, it may do so incidentally
while essentially dealing with the subject coming within the purview of the entry in the Union
list”.

The Doctrine of pith and substance is sometime invoked to find out the nature and content of the
legislation whenever there is irreconcilable conflict between the two legislations, the Central
legislation shall prevail. Every attempt would be made to reconcile the conflict. These
observations will appear to settle the view that in cases where conflict arises between Central
Act and State Act because of incidental encroachment on a subject in the rival exclusive list, it is
the Central Act which will always prevail.

In ITC Ltd. V. Agricultural Produce Market Committee, Smt. Ruma Pal J. held that in case where
conflict arises between State Act and Central Act because of incidental encroachment of Central
Act on a subject in the State list, the State legislation being within the exclusive power of the
State legislature will be dominant legislation and shall prevail over the Central Act in the field of
encroachment. It has been held in some cases that the doctrine of covered field or occupied field
can be applied only to matters in List III. The doctrine of pith and substance postulates (suggests
or affirms basis for reasoning or belief) that the impugned law is substantially within the
legislative competence of the particular legislature that made it, but only accidentally
encroached upon the legislative field of another legislature. The doctrine saves the incidental
encroachment if only the law is, in pith and substance within legislative field of a particular
legislature which made it. Pith and substance states the Constitutional validity of the statute.

Its essence of statute is that it must not be constitutionally ultra vires. Doctrine of pith and
substance looks to nature and character of the law enacted by a Legislature and ignores
incidental encroachments.

Q. 4. Discuss the four proposals of Heydon’s case. Elaborate it in the light of cases. OR
Explain ‘purposive construction’ or ‘Mischief Rule” of interpretation.
A. 4. 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 by they penal or
beneficial restrictive or enlarging of the common law is the rule of Heydon’s case. The rules laid
down in this case are also known as ‘purposive construction’ or ‘Mischief Rule”.

The four proposals of Heydon’s case:

1st What is the common law before the making of the Act?
2nd What was the mischief and defect for which the common law did not provide?
3rd What remedy the parliament hath resolved and appointed to cure the disease of the Common
law and
4th The true reason of remedy.

And then the office of all judges is always to make such construction as shall supress the
mischief, and advance the remedy and to supress subtle inventions and evasions for continuance
of the mischief and pro private commando and to add force and life to the Act, pro bono public.

Chief Justice Mukharjee in Delhi Transport Corporation V. D.T. Mazdoor Congress, states
“Legislation, both statutory and constitutional is enacted, it is true, from experience of evils. But
its general language should not, necessarily be confined to the form that evil had taken. Time
works changes, brings into existence new conditions and purposes, and new awareness of
limitations. The principle to be value must be capable of wider application than the mischief
which gave it existence”. This is particularly true of the constitutional constructions. Mischief
rule is applicable where language is capable of more than one meaning. It is the duty of court to
make such construction of a statute which shall supress the mischief and advance the remedy
[British Railway V. Union of India].

The Supreme Court in Bengal Immunity Co. V. State of Bihar, applied the rule of construction of
Art. 286 of the Constitution of India. After referring to the state of law prevailing in the province
prior to the constitution as also to the chaos and confusion that was brought about in interstate
trade and commerce by indiscriminate exercise of taxing powers by the different Provincial
Legislatures founded on the theory of territorial nexus. Chief justice S.R. Das stated “It was to
cure this mischief of multiple taxation and to preserve the free flow of interstate trade or
commerce in the Union of India regarded as one economic unit without any provincial barrier
that the constitution maker adopted Article 286 in the constitution. The rule was again applied
by the Supreme Court in similar context while construing the changes brought about by the
Constitution 46th Amendment Act in Goodyear India Ltd., V. State of Haryana and in case of
Sodradevi V. CIT, M.P. and Bhopal, Justice Bhagwati that, without considering that there was
any ambiguity in the word “individual” as used therein, it was pointed out that the Rule in
Heydon’s case is applicable only when language is ambiguous and the rule was applied after firm
finding that the words “any individual” in the setting are ambiguous.

Q. 5. Discuss the general principles applied to interpret the Constitution.

A. 5: The constitution is said to be organic instrument. It being in the form of statutes with
various principles of interpretation. The general rules adopted for construing a written
constitution embodied in a statute are the same as for construing any other statute. The
constitution must be interpreted in a broad and liberal manner giving effect to all its parts and
the presumption should be no conflict or repugnancy was intended by the framers. It cannot be
construed in a narrow and pedantic [excessively concerned with minor details or rules] sense and
the court should be guided with a broad and liberal spirit. Following general principles are
applied to interpret the Constitution:

1) Principle of Implied Powers.

2) Principle of incidental or ancillary powers.
3) Principle of implied prohibition.
4) Principle of occupied field.
5) Principle of Pith and Substance.
6) Principle of colourable legislation.
7) Principle of territorial nexus.
8) Principle of severability.
9) Principle of prospective overruling.
10) Principle of eclipse.

1) Principle of Implied Powers:

The constitution inter alia, contains the objects which the country strives to achieve for its
people and also works the outline of powers given to the Parliament like a code it do not sub-
divide these powers to the minutest detail or nor does it specify all the means necessary in the
execution of same. Laws which are necessary and proper for execution of the power or are
incidental to such powers are called implied powers and these laws are presumed to be
constitutional. The constitutional powers are granted in general terms. Where implied powers
must arise, the implied restraint must also arise. Whenever certain powers are granted by the
constitution or some restrictions are also required. The powers which are needed for the exercise
or performance of the same are by implications also conferred by it that means implied powers
are constitutional. The parliament has the power to choose and use the means by which it would
like the power so granted by the constitution to be executed.

2) Principle of incidental or ancillary powers:

This principle is similar to the principle of implied powers. The constitution of certain nations
specifically gives to their law making body incidental and ancillary powers of legislation. But
even in those constitutions where such powers have not been bestowed, the law makers are
deemed to be in possession of such powers so that they are in a position to legislate effectively
when they are legislating under their specific power of making law as provided in the
constitution. When there is no express mention of this power in constitution no such power exists
is not convincing because it is presumed that some such powers must exist for the smooth making
of the Constitution. The basis of the principle of incidental and ancillary powers is the principle
that the constitution being the paramount law, it must be interpreted not in a narrow or
pedantic sense but liberally and widely.

3) Principle of implied Prohibition:

It is well known principle of interpretation that express mention of one thing implies the
exclusion of another, as expressed in a maxim. Principle of implied power is the antithesis of the
Principle of implied powers. In the constitution of some countries, the Union or the Central
Legislature has been given powers to legislate on certain subjects enumerated in the form of list
and for the subjects left out of the list, the State legislature have been conferred power to make
laws. On the other hand in the constitution of some other countries Central and State legislatures
have been empowered to legislate in distinct fields designated by more than one list. In the
former classes of cases, the specific mention of a subject to be legislated upon by the Centre
means implied prohibition on the Centre to legislate on residuary areas. In the later class of
cases, the principle of implied prohibition does not exist at all even though that of incidental and
ancillary powers does.

4) Principle of occupied field:

The principles of occupied field means that when the Union Central Legislature makes a law on a
particular subject and thereby occupies the field, the State Legislature has no power to enact
any law on that field. In the event of their doing so, the State legislation would to that extent,
becomes unconstitutional. In India, the constitution grants specific areas of legislation to the
Union Parliament and State legislatures in the form of Union List and State List and one cannot
encroach upon the powers of the other. It is the concurrent list, where both the Parliament as
well as State Legislature has been empowered to enact laws.

5) Principle of Pith and Substance:

This principle means that if an enactment substantially falls within the powers conferred by the
constitution upon the legislature by which it was enacted, it does not become invalid merely
because it incidentally touches upon subjects within the domain of another legislature as
designated by the Constitution. Consequently, this principle is invoked to judge the legislative
competence of a legislature with regard to a particular enactment on question as to whether
that legislature was empowered to make law of that subject as per entry in list, and the question
is resolved by applying the principle of Pith and Substance.

6) Principle of Colourable Legislation:

Superficially it may appear that they are acting within their power, but on careful scrutiny, it is
revealed that under the4 guise of exercise of legislative powers, they are legislating upon a
subject which they have no powers to legislate. The Legislature pretends to act within its power
and goes beyond. Such transgression may be patent, manifest or direct but it may also be
disguised, covert and indirect and it is to the later class or cases that the expression “colourable
legislation” has been applied. When the transgression is direct or overt, then such law made is
ultra-vires. The colourable legislation is a legislation which is in appearance only and not in
reality, what it purports to be. This doctrine postulates the legislature attempts to do indirectly
what it cannot do directly.

7) Principle of territorial nexus:

Whereas Article 245(1) of the Constitution says that subject to the provisions of the constitution
parliament may make to the laws for the whole or any part of the territory of India and the
Legislature of State may make laws for the whole or any part of the State. According to Article
245(2) no law made under Parliament shall be deemed to be invalid on the ground that it would
have extra territorial operation. Thus, the constitution confers the exclusive power only to the
Parliament, to enact laws having extra territorial operation, and not to the State Legislature. An
extra territorial law enacted by any state is challengeable unless the same is protected on
ground of sufficient territorial nexus.

8) Principle of severability:
When the constitutionality of an enactment is in question and it is found that part of the
enactment which is held to be invalid, it can be severed from the rest of enactment. The part so
severed shall be declared unconstitutional. Naturally where such severance is not possible, the
whole enactment shall have to be held unconstitutional. The principle of severability was stated
by the Privy Council in Attorney General for Alberta V. Attorney General of Canada.

9) Principle of prospective overruling:

In I.C. Golaknath V. State Punjab, five of the eleven judges laid down the Principle of
Prospective Overruling. They were of the view that the Parliament has no authority to amend the
law affecting the fundamental rights. Justice Subbarao speaking for himself and four his other
companion judges, posed the questions as to when the Parliament could not affect fundamental
rights by enacting a bill under its ordinary legislative process even unanimously how could it then
abrogate fundamental rights with only two third majority and while amendment of less
significant Article of the Constitution requires ratification by majority of states of the Union, how
could a fundamental right be amended without this requirement being fulfilled. These five
learned judges jointly declared that the principle would operate only in future and it had no
retrospective effect. [Which could have otherwise rendered invalid or invalidated any such laws
or amendment, passed by the Union or State legislature invalid]. Therefore, the name
Prospective overruling. The effect of the decision was that all amendments made with respect to
the fundamental rights till the day of the decision in the case would continue to remain valid and
effective, and after that date the Parliament would have no authority to amend any of the
fundamental rights. The learned judges imposed three restrictions on the application of the
Principle –
Firstly, that the principle of Prospective Overruling would for the time being will be used in
constitutional matters only.
Secondly, that the Supreme Court alone and no other court would have authority to apply the
principle.
Thirdly, the scope of prospectively to be imposed is a matter of discretion for the Supreme Court
which is to be moulded in accordance with the Justice of the cause or matter before it.
10) Principle of eclipse:
According to Article 13(1) of the Constitution all laws in force in the territory of India
immediately before the commencement of the constitution, as they are inconsistent with the
provisions of this part, shall to the extent of such inconsistency be void. Article 13(2) of the
Constitution says that the state shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall to the extent of the
contravention be void.

Q. 6: Discuss special rules of construction of Constitution.

A. 6: General principles applied to interpret the constitution are as follows:
1. A Constitution is to be interpreted in the same manner as the other statutes by reference to
its terms and language and these alone.
2. The broad and liberal spirit should inspire who interpret the Constitution but they are not
free to stretch or pervert the language of enacted laws maxim that “the construction should
be preferred which makes the machinery workable” may be applied. It is better for a statute
to have effect, then to be made void. That it may rather become operative than null. To
uphold the constitutionality of statutes whenever it can be rationally done.
3. The statutory provisions is to be interpreted in a manner which would make it valid, for the
statutory provisions even though it appears to have wider scope it could be interpreted in a
restricted sense as to make it valid.
4. The Constitution is declaration of will of the people and must be interpreted liberally. It
must be interpreted accordingly liberally. It must be interpreted to its true purpose and
 intent as disclosed by the phraseology in its natural significance in the light of its setting and
its dynamic character which is intended to fulfil the aspirations of the State.
5. Harmonious construction: The principle of interpretation of statutes that various provisions
of an Act are to be interpreted harmoniously. There is a general presumption in favour of
constitutionality of the statute. It is for the party challenging the constitutionality of the
statute to show how it is unconstitutional.
6. Interpretation of legislative entries to liberal:
a. The entries in list are not powers but they are only fields of legislation.
b. The entries should be construed literally in their widest amplitude.
c. None of the items in the list is to be read in narrow or restricted sense and the general
words should be held to the extent to all subsidiary or ancillary matters which is fair and
reasonable said to be comprehended in it. Reference to the legislative practice may be
inadmissible for the meaning of a word in order to reconcile two conflicting provisions in
the two legislative list. The entries in the list must be construed so as to avoid conflict.
7. Pith and substance theory:
The phrase raises a convenient form an appropriate question in cases where the real one is
of a subject matter and it may also serve a useful purpose in the process of deciding whether
a particular enactment is a law. It postulates that the impugned law is substantially within
the legislative competence of the particular legislative that is made but accidently
encroached upon the legislative field of another legislature. The doctrine saves the
incidental encroachment, if only the law in pith and substance within the legislative field of
the particular legislature. When the dispute arises as to the legislative competence of the
legislative body and it has to be resolved by reference to the entries to which the impugned
legislation is relatable. When there is a conflict between two entries in legislative list and
legislation by reference to one entry, it would competent, not by reference to the other to
state that the doctrine of pith and substance is invoked for the purpose of determining the
true nature and character.
8. Constitutionality/Validity of Statues:
Words or expressions in a provision offend the Constitution and if the offending words or
expressions can be exercised, it can be done by leaving unoffending portions. This applies also to
a case where a particular provision or section or part of the statutes offends the Constitution,
but the other rest part is good, in such a case the entire statute need not to be declared void but
if the valid and invalid portions are so inextricably (impossible to separate) mixed up that it may
not be possible to separate one from the other, then the invalidity of the portion must result in
the invalidity of the whole. In other words in such as case, “bad in part, bad in whole” applies.
On the other hand, these process of separation is valid from the valid, is called severability.
9. Provisions relating to fundamental rights:
The provisions in the construction of fundamental rights must be construed broadly and literally
in favour of those on whom the rights have been conferred. It is stated about the fundamental
rights and directive principles that, the directive principles prescribe the goal to be attained and
the fundamental rights laid down the means by which the goal is to be achieved.
10. Constitution not retrospective:
Every statute prima facie is prospective unless it is expressly or by necessary implication made to
have retrospective operation. There is no reason why the rules of interpretation should not be
applied for the purpose of interpreting the Constitution.

In Keshavan Madhava Menon V. State of Bombay, the question where as to whether a prosecution
commenced under section 18 of the Indian Press (Emergency Powers) Act, 1931 before the
coming into existence of the Constitution could be continued even after the presence of Article
13(1) in the Constitution and whether the Act violated Article 19(1)(a) of the Constitution. The
Supreme Court held that the prosecution would continue because the constitution cannot be
given a retrospective operation in the absence of an express or necessarily implied provision to
that effect nor was there anything to that effect in Article 13(1) of the Constitution.

Q. 7. Enumerate and Explain the Internal Aids to the Interpretation of Statutes. OR Critically
analyse the parts of a statute.
A. 7. The Internal Aids in the construction of statutes are derived from Long Title, Preamble,
heading, title, marginal notes, and interpretation clause.

1. LONG TITLE:
The long title is a part of the Act and is admissible as an aid to its constructions. The long title
along with the preamble is a good guide regarding the object, scope and purpose of the Act. The
long title which often precedes the preamble must be distinguished with the short title, the
former taken along with preamble or even its absence is a good guide regarding the object,
scope and purpose of the Act. Long title ordinarily starts with the words “An Act……”, although
title is a part of the Act, it is in itself not an enacting provision and though useful in case of
ambiguity of the enacting provision, is in effective to control their clear meaning.

2. Preamble:
It is a part of an Act and is an admissible aid to construction but preamble is expected to express
the object, scope and purpose of the Act more comprehensively than the long title. If any doubt
arise from the terms employed by the Legislation, it has always been held a safe means of
collection of intention to call in aid the ground and cause of making the statute and to have
recourse to the preamble, which according to Chief Justice Dyer is key to open the minds of the
maker of the Act, and mischief which they intend to redress.

The Supreme Court has also enunciated the same principle about the preamble “It is one of the
cardinal principles of construction that where the language of an Act is clear, the preamble must
be disregarded though, where the object or meaning of an enactment is not clear, the preamble
may be resorted to explain it, the preamble may be used to indicate to what particular
instances, the enactment is intended to apply.

Preamble to the Constitution:

The Supreme Court held that, “The Constitution, including the preamble must be read as a whole
and in case of doubt interpreted consistent with its basic structure to promote the great
objective stated in the preamble. Similarly, the repeal of a preamble simpliciter will not affect
the construction of the statute.

3) Heading:
Headings are like preamble to sections. It cannot control plain words. It is a part of statute. It is
internal aid to interpretation.

In Iquabal Marwah v. Meenakshi Marwah, the Supreme Court held it to be important part and
explains sections which immediately follow them. The Headings are of two kinds, one prefixed to
a section and other prefixed to a group of sections.

Where the language of the section or an Act is plain, it is not necessary to have recourse to the
general heading under which the section comes. The headnotes and sections cannot cut down the
express meanings of the word occurring in the section. The headings of different portions of a
statute can be referred to determine the sense of any doubtful expression in a section ranged
under any particular heading. The heading prefixed to a section or sets of sections in some
modern statutes are regarded as preamble to those sections. They cannot control the plain words
of statutes, but they may explain ambiguous words. If there is any doubt in the interpretation of
words. If there is any doubt in the interpretation of the words of the section, the heading
certainly help the court to resolve that doubt held in Bhinka v. Charan Sigh.

While construing a statute, the heading of the section may also be referred to if any doubt arises
as regards the nature of such enactments.[W. B. Council for Higher Secondary Education v.
Subhabrata Datta].
Headings can be referred in construing an Act of the Legislature. One group is of a view that a
heading is to be regarded as giving the key to the interpretation and heading may be treated as
preamble to the provisions following them, the other group is of the view that resort to the
heading can only be taken when the enacting words are ambiguous, however, heading prefixed to
sections cannot control the plain words.

4) Marginal Notes:
Marginal Notes are the notes which are inserted at the side of the sections in an Act and express
the effect of the section stated. The Privy Council has ruled that the marginal notes to the
section of an enactment cannot be referred to for the purpose of construing the Act. The
Marginal notes cannot however, effect affect the construction of the language used in the body
of the section if it is otherwise clear and unambiguous. The use of the marginal notes in
interpretation of statutes is not uniform but majority has a view that the marginal note
appended to a section cannot be used for construing the Section where language of marginal
note is found misleading or inappropriate; the legislative intent contained in the provisions
should not be bypassed. Marginal notes appended to Articles of the Constitution have been held
to constitute part of the constitution as passed by constituent assembly and therefore they have
been made use in construing the Articles.

Marginal notes to the sections of a statute and the title of the chapter cannot take away the
effect of the provisions contained in the Act, so as to render those provisions legislatively
incompetent, if they are otherwise within the competence of the legislature to enact.

5) Punctuation:
Punctuation mark is a minor element in the construction of a Statute and there are some cases of
punctuation when they occur they can be looked upon as a sort of contemporanea (uncountable)
exposition, when a statute is carefully punctuated and there is no doubt about its meaning an
importance is to be given to punctuation.

6) Illustration:
Illustration appended to a section form part of the statute and although forming no part of the
section, are of relevance and value in the construction of the text of the section and they should
not be readily rejected as repugnant to the section.

The Supreme Court had in a case took the aid of the illustration appended to section 43 of the
Transfer of Properties Act for conclusion that the said provision applies to transfer of “spes
successionis” [only a mere chance of succession] and enable transferee to claim the property
provided other conditions of the section are satisfied.

7) Definitions Sections or Interpretation Clauses:

In any statute ‘Definitions’ of certain words and expressions used elsewhere in the boy of the
statute are found commonly. The object of such definition is to avoid the necessity of frequent
repetitions in describing all the subject matter to which the word or expression defined is
intended to apply. A definition clause may borrow definitions from earlier Act and the definition
borrowed may not necessarily be in the definition section but may be in some other provisions of
the earlier Act. All statutory definitions have to be read subject to the qualifications and should
be used for the purpose of that Act. Definitions from other Act cannot be borrowed and used
ignoring the definition contained in the Statute itself. Definitions may be of following kinds:
a) Restrictive and Extensive Definitions.
b) Ambiguous Definitions.
c) Definitions are subject to a contrary context.

8) Proviso:
a) Real Nature of proviso:
Normal function of a proviso is to except something out of the enactment or to qualify something
enacted therein which for the proviso would be within the purview of the enactment. It is said
that “as a general rule, a Proviso is added to an enactment to qualify or create an exception to
what is in the enactment, a proviso is not interpreted as stating a general rule. A proviso
qualifies the generality of the main enactment by providing an exception and taking out from the
main provision, a portion, which, but for the proviso would be a part of the main provisions. A
proviso must be construed in relation to the principle matter to which it stands as proviso.

b) Not to be construed as excluding or adding something by implication.

c) Proviso to be construed in relation to the section to which appended.
d) Used as a guide to construction of enactments.
e) At time to allay fears.
f) At time fresh enactment
g) Proviso as Exception and Saving Clause.
9) Explanation:
An explanation is appended to a section to explain the meaning of words contained in the
section. Explanations are normally inserted with the purpose of explaining the meaning of a
particular provision and to remove doubts which might creep up if the explanation had not been
inserted. It becomes part and parcel of the enactment. If the language of the explanation shows
a purpose and a construction consistent with that purpose can be reasonably placed upon it, that
construction will be preferred as against any other construction which does not fit in with the
description.

10) Schedules:
Schedules attached to an Act generally deal with as to how claims or rights under the Act are to
be asserted or as to how powers conferred are to be exercised. They form the part of the statute
to which they are appended. They are added towards the end and their use is made to avoid
encumbering the section in the statute with matters with excessive details. They often contain
details and prescribe forms for working out the policy underlying the sections of the statute.
Schedules may also contain transitory provisions which remain in force till the main provisions of
the statute are brought into operation.

Q. 8. What is Repealed Law? What are the effects and consequence of Repealed Law?
A. 8: The rule for repeal is that “the power of a legislative body to repeal a law is co-extensive
with its power to enact such a law”. A legislature has no power to bind itself or its successors as
to the course of future legislation to acknowledge that, such a power will mean that a legislature
can curtain its own or its successor’s powers which are conferred by the constitution and which
cannot be restricted or taken away by an amendment to Constitution. Repeal may be Express
Repeal or Implied Repeal:

1) Express Repeal:
The use of particular form of words is not necessary to bring about an Express Repeal. All that is
necessary is that the words used to 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” or “shall be omitted” are also there when the object is to
repeal only a portion of an Act. Sometimes legislature does not enumerate Acts which are sought
to be repealed but only says that “all provisions inconsistent with this Act” are hereby repealed.

There is also another formula when the later Act provides that a particular earlier Act “shall to
the extent necessary to give effect to the provisions of this Act be deemed to have been
repealed or modified. The Supreme Court held in a case that where the repealed Act provides
substantially for all matters contained in the Act affecting the repeal, there is correspondence
between the two Acts and earlier Act would thus stand repealed. It is not necessary that there
should be complete identity between repealing Act and the Act repealed in every respect [Abdul
kader V. State of Keral].

2) Implied Repeal:
i) General: There is presumption against repeal by implication and this is based on the theory
that the legislature while enacting a law has a complete knowledge of the existing laws on the
same subject, when it does not provide for a repealing provision, it gives out intention not to
repeal the existing legislation.
The Supremes Court has stated that the test for determining repugnancy under Article 254 of the
Constitution of India may be applied solving a question of Implied repeal and that it should be
seen.
a) Whether there is direct conflict between the two provisions.
b) Whether the Legislature intended to lay down an exhaustive code in respect of the subject
matter replacing the earlier law.
c) Whether the two laws occupy the same field.

The doctrine of implied repeal is based on the theory that the legislature which is presumed to
know the existing law did not intend to create any confusion by retaining conflicting provisions
and therefore, when the court applies the doctrine, it does no more than to give effect to the
intention of the legislature by examining the scope and object of the two enactments and by
comparing their provisions.

ii) Prior Particular Law and Later General Law:

A prior particular or special law is not held to be impliedly repealed by later general enactment.
The particular or special law express only a particular phase of the subject covered by the
general law and therefore reconciliation is possible between a particular Act and later general
Act, and so the particular Act is construed as an exception of the General Act.

iii) Prior General Law and later Particular law:

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 an earlier Act. Here the operation of the particular operation of the particular Act
may partially repeal the general Act, or curtail its provisions or add conditions to its operation
for the particular case.

iv) Affirmative Enactments:

It has been held, one affirmative enactment is not easily taken as repealed by another later
affirmative enactment. The rule was stated in Foster’s case. If the later affirmative enactment
does not imply a negative, it will not be construed as impliedly repealing an earlier affirmative
enactment.

v) Laws defining offences and penalties:

When a later statute describe an offence which are created by an earlier statute and imposes a
different punishment for that offence or varies the provisions thereof, the earlier statute is
repealed by implication. But where the offence described in the later Act is different from in an
earlier Act, this principle has no application. Article 20(2) of the Constitution of India directs
that no person shall be prosecuted and punished for the same offence more than once.

Effects of repealed law:

Where the Act or ventral Act or Regulation made after commencement of the Act, repeals any
enactment hereto made or hereafter to be made then unless a different intention appears, the
repeal shall not:

a) Revive anything not in force or existing at the time at which the repeal takes effect.
b) Affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder.
c) After any right, privilege, obligation or liability acquire, accrued or incurred under any
enactment so repealed.
d) Affect any penalty, forfeiture or punishment incurred in respect of any offence committed
against any enactment so repealed.
e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid.
 And any such investigation, legal proceeding or remedy may be instituted or continued or
enforced and any such penalty, forfeiture or punishment may be imposed as of the repealing
Act or Regulation had not been passed.

a) General:
The consequences of repeal of a statute are very drastic; a statute after its repeal is completely
obliterated as if it had never be enacted. The effect is to destroy all inchoate (anticipating) rights
and all causes of action that may have arisen under the repealed statute.

b) Revival:
If one Act is repealed by another Act which is again repealed by a third Act, the first Act is not
revived unless the third Act makes an express provision to that effect. Section 6(a) and 7 of the
General Clauses Act deal with revival of enactments. Section 6(a) is wider in operation and
covers what is more emphatically (in a forceful way) declared by section 7. Where provision is
repealed by substitution of another provision in its place and afterwards the Act which makes the
substitution is declared invalid, then, the question of revival of the original provision requires
consideration of the fact that whether the Act was declared invalid for want of legislative
competence or otherwise.

c) Saving of Rights acquired:

The effect of clause (c) to (e) of the Section 6 of the General Clauses Act is to prevent the
obliteration of a statute in spite of its repeal to keep intact, the 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 repeal for the
enforcement of such rights and liabilities. Thus offence committed during 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 be noticed that any investigation, legal proceeding or remedy “saved by clause (e) is only in
respect of any rights and privileges “acquired” or “accrued” and any obligation, liability,
penalty, forfeiture or punishment “incurred” within the ambit of clause (c) and (d) of Section 6.

In respect of other matter though “anything done” under the statute will not be invalidated after
its repeal by virtue of clause (b) of Section 6 of the General Clauses Act, it will be rendered
abortive, if no rights are acquired or had accrued and no liability had been incurred prior to
repeal. The rights or liabilities which have been accrued but which are in the process of being
enforced or are yet to be enforced are unaffected because clause (c) clearly contemplates that
there will be situations when an investigation, legal proceeding or remedy may have to be
continued or resorted to before the right or liability can be enforced. It has been held that the
right of a tenant, who had land for a certain number of years and who had personally cultivated
the same for that period “to be deemed to be a protected Tenant” under the provisions of a
statute is an accrued right, which will survive the repeal of a statute.

Q. 9: Discuss in the light of relevant cases the Principle of Harmonious Construction.

A. 9: Rule of Harmonious construction is well settled that when there are in an enactment two
provisions which cannot be reconciled with each other, they should be so interpreted that; if
possible, effect should be given to both or to one which furthers the object of the statute. This is
known as the rule of harmonious Construction [Devaru V. State]. The principle should be followed
in avoiding a head on clash where there appears to be inconsistency in two sections or the same
Act. It should not be lightly assumed that what parliament has given with one hand, it took away
with the other.

It is no doubt true that the court while construing a provision should not normally read into it,
words which have not been expressly enacted but having regard to the context in which the
provision appears and the object of the statute in which said provision is enacted, the court
should construe it in a harmonious way to make it meaningful. Text of the entire Act and context
of the case must be looked into while interpreting any expression used in such statute. Court
must also look to the object which such statute wants to achieve.
Case Illustrations:
1. Rahbar Productions Pvt. Ltd. V. Rajendra Tondon: The Supreme Court held that The Delhi
Rent Act, 1958 is a composite legislation beneficial as well as restrictive in nature. Therefore,
the courts are under a legal compulsion to harmoniously read the provisions of the Act so as to
balance the rights of landlord and the obligations of the Tenants towards each other keeping in
mind that one of the objects of the legislature, while enacting the Act was to curb the tendency
of the greedy landlords to throw out tenants paying lower rent in the name of personal
occupation and rent out the premises at the market rates. The rule of interpretation requires
that while interpreting two inconsistent or repugnant provisions of an Act, the court should make
efforts to interpret the provisions as to harmonise them so that the purpose of the Act may be
given effect to and both the provisions may be allowed to operate without rendering either of
them. The statute has to be read as a whole to find out the real intention of the legislature. The
following were discerned (recognised/found):

a) It is the duty of the courts to avoid a head-on-clash between two sections of the Act and to
construe the provisions which appears to be in conflict with each other in such a manner as
to harmonise them.
b) The provisions of one section of a statute cannot be used to defeat the other provisions
unless the court finds it impossible to effect.
c) It has to be kept in mind by all the courts that when there are two conflicting provisions in
an Act which cannot be reconciled with each other, they should be so interpreted that, if
possible effect should be given to both. This is the essence of the harmonious construction.
d) The Courts have also to keep in mind that an interpretation which reduces one of the
provisions to “a dead letter” or “useless limber” (capable of being shaped/flexible) is not
harmonious construction.
e) Provisions should be construed with reference to each other to ensure their consistency with
the object sought to be achieved.
f) To harmonise is not destroy any statutory provision or to render it.

2) Chief Justice of Andhra Pradesh V. Dixitulu and Another:

In this case on attaining the age of fifty years, Deputy Registrar of the High Courts and
subordinate judge were compulsorily retired by the Chief Justice of the High Court and the State
Government. Respondent filed Petitions against this before Administrative Tribunal constituted
under Article 371-D of the Constitution by the President of India by Administrative Order of 1975.
The Tribunal held the retirement of the Deputy Registrar illegal being an arbitrary order violative
of Article 311(2) and that of subordinate Judge also illegal because as the High Court was their
appointing authority, retirement order could not be passed by the Government. But, before the
Supreme Court, the appellants argued that the officers and servants of High Court as well as
members of the judicial services were not subject to Article 371-D, therefore the Administrative
Tribunal had no jurisdiction to deal with such cases. It was held by the Supreme Court that when
more than one construction is possible, then effect must be given to that interpretation which
ensures a smooth and harmonious working of the statute.

3) Jagdish Singh V. Lt. Governor, Delhi:

The Supreme Court held that in case of conflict between various provisions of a Rule, harmonious
construction should be made and statute should be real as a whole one provision and should be
construed with reference to other provisions as to make the Rule consistent.

4) Commissioner of Sales Tax, M.P. V. Radha Krishan:

The Respondents challenged the provision on the ground that there were two separate provisions
under the Act, namely Sections 22(4-A) and 46(1)(c), under two different procedures were
prescribed to realize the amount due but there was no provision of law which could tell us as to
which case. According to Supreme Court reading two provisions revealed that out of the two, the
procedure under 46(1)(c) was one drastic, so, it was held by the Supreme Court that by
harmonious construction of these two provision, the conclusion drawn is that the Commissioner
had judicial discretion to decide as to which procedure was to followed in which case. Whenever
the Commissioner had correctly decided that the more drastic procedure under Section 46(1)(c)
deserved to be followed because of failure of the assesse firm in paying Sales Tax despite
repeated demands by the Sales Tax office.

Q. 10: Discuss the presumption whether statutes affects the state? OR Critically analyse the
statement “the state is bound by a statute unless excluded expressly or by necessary
implication.
A. 10: The Rule of English Law that no statute binds the Crown or the State and Crown or State is
named there in either expressly or by necessary implication because a statute is presumed to be
enacted for the subjects and not for the King or State. There is one exception to the rule that
the State may be bound by necessary implication of terms of Statute, that it was intention of the
Legislature that the Crown or the State should be bound, then the suit is the same as if the State
had been expressly named. It is inferred that the Crown or the State by assenting to the law,
agreed to be bound by its provisions.

Three kinds of statutes which bounds the King or the State without naming it.
1. Statutes for maintenance of religion, learning and the poor.
2. Statutes for suppression of wrong.
3. Statutes that tend to perform the will of a founder or donor.

In Bombay Province V. Bombay Municipal Corpn. It was said that the presumption that the Crown
is not bound statute is not rebutted by merely showing that the legislation in question cannot
operate with reasonably efficiently unless the Crown or State is held to be bound. The Bombay
High Court observed “that it would have to be shown that legislation cannot operate with
reasonable efficiency unless Crown is bound by necessary implication. The Privy Council
overruled the decision and held that, the presumption that the Crown or the State is not bound
would be rebutted and an intention to bind would be clearly made out if it could be shown from
the terms of statute taken as a whole that the purpose of the statute would be wholly frustrated
or the legislation would be unmeaning unless Crown or State were held bound.

The protection of the rule of Presumption that the Crown or the State is not bound by the
statutes extends to three classes of persons:
a) the sovereign personality
b) his servants or agents acting as such
c) persons, who though not strictly servants or agents considered to be Consimili Casu (similar),
who though independent of the Crown of the State perform exclusively or to a limited degree,
the real Government functions such administration of justice, the carrying on of war, the making
of treaties of peace, the repression (restraint, prevention) of crime etc. Long series of cases
have established that where property is occupied for the purpose of the Government of the
Country, including under the head of Police and administration of justice, Post office, Jail etc.
no one is rateable in respect of such occupation

The rule that applies in India is, that a ‘general Act applies to citizens as well as to State unless
it is expressly or by necessary implication exempts the State from its operation. the same rule
will apply to Government bodies and corporations constituted under special Acts.

Justice Bachawat observed that, ‘Particular care should be taken in scrutinizing the provisions of
statutes relating to taxing or penal Act. If the application of the Act leads to some absurdity that
may be a ground for holding that the state is excluded from its operation by necessary
implication. In the case of State of West Bengal v. Corporation of Calcutta it was observed that,
If the only penalty for an offence is imprisonment, the state cannot be convicted of the offence,
for the state cannot be locked up in prison. If the penalty for offence is fine and the fine goes to
the consolidated fund of the State, it may be presumed that the penal provisions does not bind
the State, for legislature could not have intended that the State will be payer as well as the
receiver of the fine presumably, the Union is not bound by Central Income Tax Act, because if it
paid income tax, it will be both the payer and receiver. Likewise, a state is prima facie not
bound by State Agricultural Income Tax Act, where the tax is receivable by it. Moreover case may
be conceivably [conceivable or imaginable] arise when express provisions in a statute binding the
State in respect of certain specific matters may give arise to the necessary implication, that the
State is not bound in respect of other matters.

Q.11: Discuss how far debates and Law Commission Reports are useful as External Aid to
interpretation.
A. 11: The external aids may be employed in the interpretation of statutes if the words and
language employed are not free from ambiguity and which cannot be cleared even by resort of
intrinsic aids. This external resources deals, mainly with the history of Act, both with the prior
events leading to the introduction of the Bill, out of which the Act has emerged and the
subsequent events from the time of introduction until its final enactment.

The Supreme Court has used the aid of Parliamentary history in resolving questions of
construction but it can be said that the Supreme Court generally has enunciated the said rule of
exclusion of Parliamentary history in the way it was traditionally enunciated by English Courts.
But in few cases it has been held that legislative history within circumspect limits may be
consulted by the courts in resolving ambiguities [State of Mysore R. V. Bidop]. Legislative history
and precedent English statutes may be taken into consideration in giving beneficial interpretation
to the provision in an Act [National Insurance Co. Ltd. V. Swarn Singh]. In determining legislative
intent, even a Minister’s Budget speech was taken into consideration.

Parliamentary Debates:
Parliamentary debates at the time of introduction of Bill may be used as external aids in
interpretation. In interpreting the term “prosecution” under Income Tax Act, a minister’s speech
at the time of introduction of Bill has been taken into consideration.

Law commission Reports – Commissions/Inquiry Committee:

Reports of Commission or inquiry commission preceding the introduction of a Bill have also been
referred to as evidence of historic facts or of surrounding circumstances or of mischief or evil
intended to be remedied and at times for interpreting the Act. For example in Mithilesh Kumari
v. Prem Bihari Khare, the Report of Law Commission preceding to enactment of the Benami
Transaction (Prohibition) Act, 1988 was referred to and relied upon in holding Section 4 of the
Act to be retrospective. The court observed that where a particular enactment or amendment is
the result of recommendation of Law Commission of India, it may be permissible to refer to the
relevant provision. Books Published by reputed authors and decision of courts of similar types of
democratic political system may be also applied as external aid.

Q. 12: Explain in the light of relevant cases the rule of literal interpretation
A. 12: The rule of literal construction is considered as the first principle of interpretation.
According to this rule the words of an enactment are to be given natural and ordinary meaning
and if such meaning is clear and unambiguous, the effect should be given to a provision of a
statute whatever may be the consequences. When wordings of the statutes are absolutely clear
and unambiguous rule of literal construction is to be applied and recourse of other principles of
interpretation is not required.

The rule of literal construction is applicable both to the private law as well as public law. This
rule can be easily understood under following heads:
1) Natural and grammatical meaning:
Words of statute first understood in their literal, natural, ordinary, popular sense and
phrases and sentences are construed according to their grammatical meaning, unless that
leads to absurdity (as applied to a statute means not only that which is physically impossible
but also that which morally so, that which is contrary to reason, that which cannot be
attributed to a man in his right sense) or unless there is something in the context or in
object of the statute to suggest contrary.

2) Explanation of a Rule:
 When it is said that words are to be understood first in their literal, natural, ordinary or
popular sense (all may be used interchangeably to convey the same idea), it means that the
words must be ascribed the natural, ordinary and popular meaning which they have in
relation to the subject matter with reference to which the context in which they have
relation with the subject matter, with reference to the context in which they have been
used in the statute. When that natural or ordinary meaning indicates such result which
cannot be opposed have been the intention of the legislature, then it is to be seen for some
other possible meaning of the word or phrase, which may then convey the true intention of
the legislature. In construction, the context means a statute as a whole, the previous state
of law, other statute in pari material, the general scope of the statute and the mischief that
it was intended to remedy.
3) Exact meaning preferred to loose meaning:
There is presumption that words are used in an Act of Parliament correctly and exactly and
not loosely and inexactly. Those who assert that the rule is broken, the burden of
establishing their proposition lies heavily and they can discharge it only by pointing
something in the context, which show that the loose and inexact meaning must be preferred.
Every word has a secondary meaning; preference to secondary meaning does not offend the
rule that preference should not be given loose meaning.
4) Technical words in technical sense:
The technical words are to be understood in the technical sense only viz.
a) Special meaning in trade, business, science etc.
b) Legal sense of words.

In the case of Tata Consultancy Services V. State of A.P., the Supreme Court has held that the
principle of ironing out the creases does not justify rewriting a clause or doing violence of is
language. Grammatical construction leading to absurdity or injustice is to be avoided only if
language admits or such construction. A literal rule would not be denied only because
consequences to comply with the same way lead to a penalty. The court should not be over
zealous (enthusiastic/eager) in searching for ambiguous or obscurities (unclear or difficult to
understand) in words which are plain.

According to DIAS, the literal rule should be understood subject to the following five explanatory
riders:
1) Statute may itself provide a special meaning for a term, which is usually to be found in the
interpretation or definition section.
2) Technical words are given ordinary technical meaning if the statute has not specified any
other.
3) Words will not be inserted by implication.
4) Words undergo shift in meaning in course of time.
5) It should always be remembered that words acquire significance from their context.

In the case of Suthendran V. Immigration Appeal Tribunal, the question related to section 14(i) of
the Immigration Act, 1971, which provides that ‘a person who has a limited leave under this Act
to enter or remain in the United Kingdom may appeal to an adjudication against any variation of
the leave or against any refusal to vary it. ‘a person who has a limited leave’ were construed as
person should not be included “who has had” such limited leave and it was held that the section
applied only to a person who at the time of the lodging of his complain was lawfully in the United
Kingdom, in whose case leave had not expired at the time of lodgement of an appeal.

In Shriram V. State of Maharashtra Magistrate did not examine eye witnesses cited by the
Prosecution. The Sessions court convicted appellant and the High Court upheld it. Appellant
argued in appeal before the Supreme Court that act of the Magistrate committing him for trial
was required u/s 207(A)(4) of Code of Criminal Procedure 1898, that Magistrate should take the
evidence of such person, if any, as may be produced by prosecution as eye witnesses to the
commission of an offence and if he was of opinion that it was necessary to take the evidence of
any other witness he was to do so. The Supreme Court, however, rejected the argument and held
that the use of word “shall” impose a duty on the Magistrate, but that duty was limited to the
witnesses produced by the prosecution as was apparent from the language of the section.
Witness produced and witness cited are two different things and should not be confused with
each other. The use of words “if any” in the section suggests that the prosecution was at liberty
to produce any eye-witnesses in which case the Magistrate was under no duty to examine any
other witness.

When it is said that words are to be understood first in their natural, ordinary and popular sense,
it is meant that words must be ascribed that natural, ordinary or popular meaning which they
have in relation to the subject matter, with reference to which and the context to which they
have been used in the Statute. “In the statement of the rule, the epithets “natural”, “ordinary”,
“Literal”, “grammatical” and “popular” are employed almost interchangeably to convey the
same idea”.

But when the natural or ordinary meaning indicates such result which cannot be opposed to have
been the intention of the legislature, then to look for other meaning of the word or phrase which
may then convey the true intention of the Legislature. In the construction of statutes, the
context means the statute as a whole, the previous state of the law, other statutes in pari
material, the general scope of the statute and the mischief that it was intended to remedy.
Every word apart from having a natural or ordinary or popular meaning has a secondary meaning
too, which may be for technical or scientific. This secondary meaning is less common than the
ordinary meaning. But, when in the process of interpreting a statute it is accepted that the
natural, ordinary or popular meaning of a word is derived from its context, the distinction drawn
between different meanings loses its significance.

Q. 13: Explain the ‘Golden Rule’/’Modifying Rule’. Explain this Rule in the light of decided
cases.
A. 13: Ordinarily the Court should find the intention of the legislature from words used in the
statute by giving them natural meaning. But if this leads to absurdity, inconvenience, hardship,
injustice or evasion, the court must modify the meaning of such an extent and to further as
would prevent such a consequence. From the face of it this rule it solves all problems and
therefore also called modifying rule. For example, if there is no provision in the Law Succession
to debar a person committing murder, from inheritance. It shall be construed that such a
provision exists otherwise there would be great injustice.

The grammatical and ordinary sense of the words is to be adhered to unless that would lead to an
absurdity or some repugnancy or inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be notified so as to avoid such absurdity,
repugnancy or inconsistency, but no further.

In other words the court may assume that a mistake has been committed or that there is an
omission and the court may supply the omission or rectify the mistake suitably. This is called the
Golden Rule.

If the language of a statutory provision is ambiguous and capable of two constructions that
construction must be adopted which will give meaning and effect to the other provisions of the
enactment, rather than which will give none.

Lord Atkin in the case of Narayanswami v. Emperor, observed, ‘it is not the duty of the Courts
to busy themselves with supposed intentions when meaning of the word is plain’ but when the
grammatical interpretation leads to certain absurdity it is permissible to depart from and to
interpret the provision of the Statute in a manner so as to avoid that absurdity.

In other words, departure from the literal construction is not precluded if it better expresses the
intention of the Legislature. But the departure from the literal or grammatical construction is
permissible only to the extent it avoids such absurdity and inconvenience held in [Pandurang
Dagdu v. Ramchandra Baburao Hirve].
In R. V. Bandbury, it was observed by Justice that the rule of construction is to intend the
Legislature to have meant what they have actually expressed. It is safe guide to adhere to a
literal egis [shield] then to try and discover the sentential egis [shield]. A court of law is not
justified in supplying Casus Omissus [a situation omitted from or not provided for by statute or
regulation].

In the case of Basidhar Das v. Duryodhan Majhi, it would not be in consonance [harmony or
agreement] with the principle of construction of a statutory provision to interpret the same by
giving it literal meaning even though by such interpretation the basic purpose of the legislation is
not achieved.

The Supreme Court observed, the object and reasons for enacting the Constitution (52nd
Amendment) Act, 1985 and the Maharashtra Local Authority Members Disqualification Act, 1986
are clear. The same seeks to prevent defection [cause in favour of an opposing one]. The same
further prevent independent members from losing their character as such and prohibits them
from joining a political party, aghadi or front. If one has regard to the object that is sought to be
achieved by the above enactments. The constitution of an aghadi by respondents and their
joining the same after abandoning their character of independent councillors, in which they were
elected would squarely fall within mischief of Sec. 3(2) of the Act. For the every same reason,
the term aghadi or front would not only include aghadi or front which has been formed prior to
holding of elections but would also include aghadi or front which has been formed after
elections. Thus interpretation which will further aim and object of the enactment and will
prevent the mischief sought to be avoided.

Q. 14: Explain the external Aids of Interpretation.

A. 14: While interpreting a statute, true intent of the legislation shall have to be gathered and
deciphered [succeed in understanding, interpreting, or identifying] in its proper spirit having due
regard to the language used therein.

The external aids may be employed in the interpretation of statute if the words and language
employed are not free from ambiguity and which cannot be cleared even by resort of intrinsic
aids. There external resources deals mainly with the history of the Act, both with the prior
events leading to the introduction of the Bill, out of which the Act has emerged and the
subsequent events from the time of introduction until its final enactment.

The following are the external aids employed in interpreting statutes:

1) Dictionaries.
2) Foreign Decisions.
3) Parliamentary History.
4) Text Books
5) Object and reasons of the Act.
6) Commissions/Enquiry Committee.
7) Parliamentary Debates.
8) Effect of Usage and practice.

Q. 15: Critically analyse Legislative Intentions:

A. 15: If the words of an Act are so inflexible that they are incapable in any context of having
any but one meaning, then the court must apply that meaning, no matter how unreasonable the
result, but such cases are rare as English language is flexible.

Legislative Intention expressed through words. Words are not scientific or precise. Words and
references, letters and spirit of the law are important. In Bhopal Gas Leak Disaster Act, 1985, the
spirit of new law prevailed when Supreme Court granted interim relief. In N.T.C. v. Ramkrishnan,
the Supreme Court held Courts would be cautious of judicial Activism.

As long as there is no ambiguity in statutory language resort to any interpretive process to unfold
the legislative intent becomes impermissible. The supposed intention of the legislature cannot
then be appealed to whittle (reduce something in size, amount, or extent by a gradual series of
steps) down the statutory language which is otherwise unambiguous. If is the intendment is not
in the words used, it is nowhere else. The need for interpretation arises when the words used in
the statutes are on their own terms, ambivalent (mixed feelings or contradictory ideas) and do
not manifest the intention of legislature.

It is to be reiterated that the object of interpretation of statute is to discover the intention of

the Parliament as expressed in the Act. the dominant purpose in construing a statute,
considering it as a whole and in its context. That intention, and therefore the meaning of the
statute itself, which must, if they are plain and unambiguous, be applied as they stand.

A construction which is unduly restrictive of the statutory provisions for protection of the minor
must be avoided. This is all the more so in view of section 5(6) of the Hindu Minority and
Guardianship Act, 1956.

Q. 16: Analyse Ex visceribus actus:

A. 16: In the exposition of statutes, the intention of the legislature is to be gathered from the
whole of the statute and every part is taken and compared with the other parts. We must not
take one section only and see what is its meaning? This principle is also stated thus – that every
statute must be interpreted “ex visceribu actus” (it means within the four corners of the Act).

The reason is that there should not be any contradiction between one part of the statute and
another and also one part will help understanding to the another. If there is an incorrigible
contradiction, the later section is treated as an exception to the former.

A statute must be read as a whole in its context. When the question arises, as to the meaning of
certain provision in a statute. It is not only legitimate but proper to read that provision in its
context. The context is the statute as a whole, the previous state of the law, other statue pari
materia, the general scope of the statute, the rule was later fully adopted by the Supreme Court
in the case of Union of India v. Elphinstone Spinning and Weaving Co. Ltd. (Constitutional Bench).

Statutes must be read as a whole in order that each part of the statute shall be placed in its true
relation with the other parts, and in order that its meaning shall be deducted from the words of
the statue read as a whole giving to each of word its ordinary, plain meaning unless the context
requires some special or technical meaning attached to a word. The whole instrument is to be
viewed and compared in all its parts, so that every part of it may be made consistent and
effectual.

It is well settled rule of interpretation that the court is entitled and indeed bound, when
construing the terms of any provision found in a statute, to consider any other parts of the Act
which throw light on the intention of the legislature, and which may serve to show that the
particular provision ought not to be construed as it would be alone and apart from the rest of the
statute.

Q. 17: Analyse Causus Omissus:

A. 17: It means, a point unprovided for by a statute. A case not provided for (as by statute) and
therefore governed by the common law.

This rule provides that a matter which should have been, but has not been, provided for in a
statute or in statutory rules cannot, as a general rule, be supplied by construction, as that will
amount to legislation. No doubt it is the duty of the Court to try and harmonise the various
provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to
stretch the word used by the Legislature to fill in gaps or omission in the provisions of an Act
[Hiradevi v. District Board, Shahjahanpur].
This is a rule of statutory construction that casus omissus (i.e. a case omitted from the language
of the statute, but within the general scope of statute, and which appears to have been omitted
by inadvertence or because it was overlooke or unforeseen) cannot be supplied by the Courts.

The principle states that a matter which should have been provided but has not been provided
for in a statute courts, as to do will be legislation and not construction held in Hansraj Gupta v.
Dehra Dun Mussoorie Electric Tramway Co. Ltd.

In case of P.K. Unni v. Nirmala Industries, Rule 89 of Order XXI of the Code of Civil Procedure was
construed Rule 89 enable any person, claiming an interest in the property sold in exclusion of a
decree, to apply to have the execution sale set aside on his depositing, within thirty days from
the date of the sale, five percent of the purchase price money for payment to the purchaser and
the amount payable to the decree holder, for recovery of which, the sale was held.

Section 127 of the Limitation Act,1963, provided that the limitation for applying under Rule 89
was thirty days and now the period was made sixty days because it was thought that the period
of 30 days was too short for arranging money for making the deposit often causing hardship.
However, the Parliament omitted to make corresponding amendment to Rule 89 of Order XXI of
the C.P.C. Before the Supreme Court it was contended that not only period of limitation for
making the application for setting aside the sale but also period for making the deposit under
Rule 89 must be taken to have been extended to sixty days. But the contention was not accepted
and it was held that though an application for setting aside the sale can be made within sixty
days but the deposit to support that application under Rule must be made within thirty days.

The rule that a judge must not alter the material of which the Act is woven, but he can and
should iron out the creases was approved by the Supreme Court in Banglore Water Supply v. A.
Rajjapa, while dealing with the definition of Industry in the Industrial Disputes Act, 1947

Court cannot also create casus Omissus in a statute where there is none held in Directorate of
Enforcement v. Deepak Mahajan. In a case it had permitted a Court to create omissus to prevent
the statute which reduced to futility.

Q. 18: Discuss the Doctrine of Severability:

A. 18: The Doctrine of Severability is used by the Constitutional Courts to severe the legal from
illegal/void parts of the legislations, if the same is possible when faced with Constitutional
Challenges, the doctrine has been explained in R.M.D. Chamarbangwala v. Union of India case.

It is well established principle that the constitutionality of an enactment which is in question and
it is found that part of the enactment which is held to invalid can be severed from the rest of the
enactment the part so severed alone shall be declared unconstitutional, while the rest of the
enactment shall remain constitutional. Naturally, where such severance is not possible, the
whole enactment shall have to be held unconstitutional. This principle of severability was so
explained by the Privy Council in Attorney General for Alberta V. Attorney. The real question is
whether what remains is so inextricably bound up with the part declared invalid that what
remains cannot independently survive or as it has sometimes been put whether a fair review of
the whole matter it can be assumed that the legislature would not have enacted at all that which
survives without enacting the pat that is ultra-vires.

When the constitutionality of an enactment is in question and it is found that part of the
enactment which is held to be invalid, it can be severed from the rest of enactment. The part so
severed shall be declared unconstitutional. Naturally where such severance is not possible, the
whole enactment shall have to be held unconstitutional.

Words or expressions in a provision offend the Constitution and if the offending words or
expressions can be exercised, it can be done by leaving unoffending portions. This applies also to
a case where a particular provision or section or part of the statutes offends the Constitution,
but the other rest part is good, in such a case the entire statute need not to be declared void but
if the valid and invalid portions are so inextricably (impossible to separate) mixed up that it may
not be possible to separate one from the other, then the invalidity of the portion must result in
the invalidity of the whole. In other words in such as case, “bad in part, bad in whole” applies.
On the other hand, these process of separation is valid from the valid, is called severability.

R.M.D. Chamarbangwala v. Union of India is a landmark judgment on the point where the
question involved was as whether the definition of Prize Competition in Section 2(d) of the Prize
Competition Act, 1955, which covered with it both competition of skill and gambling could be
interpreted as limited to competitions of gambling alone. Applying the grammatical and mischief
rule of interpretation, the Supreme Court concluded that the expression, ‘Price Competition’
would mean only price competition of a gambling nature.

Hon’ble Justice in the case observed:-

1) In determining whether the valid parts of statute are separable from the invalid parts
thereof, it is the intention of the legislature that is the determining factor. The test to be
applied is whether the legislature would have enacted the valid part if it had known the rest
of the statute was invalid.
2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from one another than the invalidity of the Act in its entirety on the other hand, if they are
so distinct and separate that after striking out what is invalid, what remains is in itself a
complete code independent of the rest, then it will be upheld notwithstanding that the rest
has become unenforceable.
3) Even when the provisions which are valid and distinct and separate those which are invalid,
if they all form part of a single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.
4) When the valid and invalid parts of the statute are independent and do not form part of a
scheme but what is left after omitting the invalid portion is so thin and truncated
[shortened] as to be in substance different from what it was when it emerged out of the
legislature then also it will be rejected in its entirety.
5) Making The separatibility of the valid and invalid provisions of a statute does not depend on
whether the law is enacted in the same section or different sections, it is not the form but
the substance of the matter that it is material and that has to be ascertained on examination
of the Act as a whole and of the setting of the relevant provisions therein.
6) If after the invalid portion is expunged [obliterate or remove completely] from the statute
what remains cannot be enforced without alterations and modifications therein, then the
whole of it must stuck down as a void, as otherwise it will amount to judicial legislation.
7) In determining the legislative intent on the question of separatability, it will be be
legitimate to take into account the history of the legislation, its object, the title and the
preamble to it.
Hon’ble Judge went on to add that by holding prize competition to be competition of a gambling
nature and characteristic of the Act was not affected and there was not need to rewrite any of
its provisions. They thus could be severed in their application and enforcement of law to
competition of skill would be restrained by an appropriate order.

Q. 19: Fully explain the maxim and its underlying principle Delegatus Non-Potest Delegare.
A. 19: “Delegatus non-potest delegare” maxim means “Delegation cannot be made by delegate”.
The meaning of maxim is that the delegate on whom powers to made subordinate legislation has
been conferred, it cannot further delegate that power. The reason is that such sub-delegation
offends against the legislative principles in that it cannot create uniform and definite law and on
the other hand, widens the scope of exercise of powers wider than ultimately required. The
objection against sub-delegation stated is that effective control of subordinate legislation is lost
when the scope of authority passes from delegate to the sub-delegate.

Consistent with their sovereign character, legislature in India have been held possess wide
powers of delegation. This power is, however subject to important limitation. The Legislature
cannot delegate essential legislative functions which consists in the determination or choosing of
the legislative policy and of formality enacting that policy into a binding rule of conduct. The
delegation is valid only when the legislative policy or guidelines to implement are adequately
laid down and the delegate is only empowered to carry out the policy within the guidelines
laid down by the legislature [Tata Iron & Steel v. Workmen].

In modern conditions it is not possible for the legislature to foresee or anticipate all the
circumstances which may be covered by legislative measures, and therefore the legislature can
in the exercise of its wide powers, delegates such subordinate function if it thinks necessary. But
legislature cannot delegate essential legislative functions. In other words in delegated
legislation, the legislature delegates some legislative function but it cannot delegate its essential
legislative functions.

A discretion conferred by statute is prima facie intended to be exercised by the authority on

which the statute has conferred it and by no other authority, but intention may be negative by
and contrary indications found in the language, scope or object of object of the statute.

When the Act prescribes a particular body or officer to exercise a power, it must be exercised by
that body or authority and none else unless the Act by express words or necessary implication
permits the delegation, in which event, it may also be exercised by the delegate if delegation is
made in accordance with the terms of Act but not otherwise.

Scope and nature of Delegatus non-potest delegare – Sub-delegation expressly or by implication:

Very wide powers of sub-delegation are conferred under section 3 of the Essential Commodities
Supplies Act, 1946 , empowered the Central Government to regulate or prohibit production etcf
of essential commodities by Notification is so far as the Government considers it necessary or
expedient for maintaining or increasing the supply.

Where the delegate may sub-delegate power without statutory authority:

Unless the powers to sub-delegate are expressly implied or authorised by the enabling Act, the
maxim Delegatus non-potest delegare comes into operation. In England a distinction has been
made between sub-delegation of executive and legislative powers. Where the subordinate
instrument is general, it is the nature of legislation, but where it is specific and applies to a
particular person or an object, it is executive. Similarly in India sub-delegation of legislation will
not be sustained unless the statute has specifically authorised it. The sub-delegate cannot
exercise the function unless the delegate has sub-delegated the function specifically and in
terms of the Statute which authorizes the sub-delegation.

Administrative Law – Rule regarding Sub-delegation:

The rule against sub-delegation also extends to all statutory functions including purely
administrative functions. It was held by Supreme Court in a case that the relationship between
the delegator and delegate is similar to that between a ‘principle and his agent’ and it is implied
that when administrative authority delegates its power, it does not completely divest itself or its
power, and can, in the absence of any statutory bar resume his authority and even exercise the
concurrent powers.

Q. 20: What are basic principles of interpretation of Statutes? Fully explain any two of them.
A. 20: The basic principles of interpretation of Statutes are as follows:
1) Meaning of interpretation or construction;
2) Intention of Legislature;
3) Statute must be read as a whole in its context;
4) Statute to be construed to make it effective and workable;
5) Appraisal of the principle of plain meaning.

[may be elaborated in our own words]

Q. 21: ‘Subsidiary Rules of Interpretation’ can never be ignored while constructing and
interpreting any statute or document’. Critically examine and comment of this statement and
explain in detail any three of such subsidiary rules of interpretation.
A. 21: When the Legislature uses same words in different parts of the same section or statute,
there is a presumption that the word is used in the same sense throughout. The presumption is
however, a weak one and is readily displaced by the context. It has been said that the more
correct statement of the rule is that where the draftsman uses the same word or phrase in
similar context he must be presumed to intend it in each place to bear the same meaning.

The first and the primary rule of construction is that the intention of the legislature must be
found in the words used by the legislature itself. And if the words of statute are capable of one
construction only, then it would not be open to the courts to adopt any hypothetical construction
on the ground that such hypothetical construction is more consistent with the alleged obkect and
policy of the Act.
1) Ejusdem Generis [already given]
2) Noscitur a Sociis [already given]
3) Contemporanea Expositio: The maxim means exposition of a statute or any other documents
is that which it has received from contemporary authority.
Q. 22: Briefly explain the objective and scheme of “The General Clauses Act’. When can the
provision of the said Act be used and when they cannot be used while interpreting any Indian
Statute.
A. 22: The General Clauses Act, 1897 does not propose to effect any change in the law. Its
object, like that of the Acts it consolidates, is to shorten the language of the statutory
enactments and to provide uniformity of expression in cases where there is identity if subject
matter.
The General Clauses Act, 1897 is a consolidating and amending Act. the purpose of the Act is to
avoid superfluity and repetition of language and to place in a single Act, provisions as regards
definitions of words and legal principles interpretation which could otherwise have to be
incorporated in many different Acts and Regulations. The definitions and the rules of
interpretation contained in General Clauses Act have to be bread in every other Statute governed
by it, provided the statute does not contain anything repugnant to them in the subject context or
does not exhibit a different intention. The Act is also applicable for interpretation of the
Constitution.

Section 4: Application of forgoing definitions to previous enactments:-

1) The definition in Section 3 of the following words and expressions that is to say ‘affidavit’,
‘barrister’, ‘District Judge’, ‘Father’, ‘Immovable Property’, ‘Oath’, ‘Person’, ‘Section’, ‘Son’,
‘Swear’, ‘Will’, and ‘Year’ apply also unless there is anything repugnant in the subject and
context, to all Central Acts made after the 3rd day of January 1868, and to all regulations made
on or after 14th day of 1887.

2) The definitions in the said section of the following words and expressions, that is to say
‘Abet’, Chapter’, ‘Commencement’, ‘Financial Year’, ‘Local authority’, ‘Master’, ‘Offence’,
‘Part’, ‘Public Nuisance’, ‘Registered’, ‘Schedule’, ‘Ship’, ‘Sign’, ‘Sub-Section’ and ‘writing’
apply also, unless there is anything repugnant in the subject or contract, to all Central Acts and
Regulations made on or after 14th day of 1887.

Section 5: Coming into operation of Enactment:

1) Where any Central Act is not expressed to come into operation on a particular day, than it
shall come into operation on the day on which it receives the assent:-
a) in the case a Central Act made before the commencement of the Constitution, of the
Governor-General and
b) in the case of an Act of Parliament, of the President

2) Deleted;
3) Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into
operation immediately on the expiration of the day preceding its commencement.

Q. 23: Explain the importance of definitions in interpreting a statute.

A.23: When a word has been defined in the interpretation clause, prima facie that definition
governs whenever the word is used in the body of the statute. But where the context makes the
definition given in the interpretation clauses, all definitions given in an interpretation clause are
normally enacted subject to the qualification ‘unless there is anything repugnant in the subject
or context or unless the context otherwise require’. It is incumbent (necessary as duty) to those
who contend that the definition given in the interpretation clause does not apply a particular
section to show that the context in fact so requires.

The object of such definition is to avoid the necessity of frequent repetitions in describing all the
subject matter to which the word or expression defined is intended to apply. A definition clause
may borrow definitions from an earlier Act and the definitions borrowed may not necessarily be
in the definition section but may be in some other provision of the earlier Act. All statutory
definitions have to be read subject to be qualifications, variously expressed in the definition
clauses which created them. A definition contained in the definition clause of a particular
statute should be used for the purpose of that Act. Definition from any other statute cannot be
borrowed and used ignoring the definitions contained in the statute itself.
a) Restrictive and Extensive Definitions:
The legislature has power to define a word even artificially. The definition of a word in the
definition section may either be restrictive of its ordinarily meaning or it may be extensive of the
same. For example ‘means’ and the word ‘includes’, sometimes by using the word ‘means’ and
the word ‘excludes’ are used.

The use of word “means” indicates that “definition” is a hard and fast definition and no other
meaning can be assigned to the expression. The words “means and includes” indicate an
exhaustive (including or considering all elements or aspects/fully comprehensive) explanation of
the meaning which, for the purpose of the Act must invariably (always) be attached to these words
or expression.

Ambiguous Definitions:
It is presumed that the legislature will specially be careful in the choice of language in definition
section; the language used in a section may require interpretation. A definition section may have
to be interpreted with other provisions of the Act having regard to the ordinary connotations of
the words defined. The definition must be read in the context of the phrase which it defines,
realising that the function of a definition is go give precision and certainty to a word or phrase
which otherwise be vague and uncertain but not to contradict it or supplant it altogether. Any
word or phrase used or defined in a statute generally must be taken to have been used in its
ordinary sense. In case of vagueness or ambiguity a word or phrase may be so interpreted as to
add something to the statutory definition.

SHORT NOTES
1) Ejusdem Generis:
When particular words pertaining to a class, category or genus are followed by general words,
the general words are construed as limited to things of the same kind or class as those specified.
Ejusdem Generis as stated in Law Lexicon means, “of the same kind or specifies, a well-known
maxim of construction. It means “of the same kind”. The doctrine applies where there is
specified mention of distinct category followed by general words in mercantile documents of the
same kind or class or nature. In the construction of laws, Wills and other instruments, the
“ejusdem generis rule” is that where general words follow an enumeration of persons or things
by words of a particular and specific meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only to persons or things of the same general
kind, class or nature, as specifically mentioned. The rule does not necessarily require that the
general provision be limited in its scope to the identical things specifically named, nor does it
apply when the context manifests a contrary intention.
All words in a statute are given effect that a statement is to be construed as a whole and that no
words in a statute are presumed to be superfluous. The rule applies when:
a) the statute contains an enumeration of specific words
b) the subjects of enumeration constitute a class or category
c) the class or category is not exhausted by enumeration
d) the general terms follow the enumeration
e) there is no indication of a different legislative intent. If the subjects of enumeration belong to
a broad based genus as also to a narrower genus, there is no principle that the general words
should be confined to the narrower genus.

Special instances and general words are to be construed accordingly.

2. NOSCITUR A SOCIIS
This maxim lays down that the meaning of a word can be gathered from the content or by the
company it keeps. The associated words indicates a guidelines for ascertaining the meaning of a
doubtful word. But, where the intent of the legislature is clear or the meaning of the words is
not doubtful, the maxim has no application. Where a word is doubtful or ambiguous in nature,
the meaning has to be ascertained by considering the company in which it is found and the
meaning of the words associated with it. This method is applicable when the meaning of the
word is not clear.

The doctrine of noscitur a soliis (meaning of doubtful words is to be known by reference to

meaning of the other words associated with it) is a rule of interpretation and applies only when
there is any doubt about the meaning which is to be attached to words in statute. Where the
words in a statute have been given a wider connotation intentionally, the doctrine cannot be
invoked to narrow down the meaning of the words used in the definition of the terms in the
statute.

The doctrine of noscitur a soliis (a thing is known by its companion) is an extended and
attenuated [reduced in force, effect, or value] version of the ejusdem generis rule. It implies that
words even if they are not general words ‘like’ ‘whatsoever’ or ‘otherwise’ preceding by specific
words are liable to be affected by other words with which they are associated. They are
understood to be used in their cognate sense. They take as it were, their colour from each other,
the meaning of the more general being restricted to a sense analogous [comparable in certain
respects] to that of the general.

Maxims and precedents are not to be mechanically applied, they are of assistance only in so far
as they furnish guidance by compendiously [containing or presenting the essential facts of
something in a comprehensive but concise way] summing up principles based on rules of common
sense and logic [Rohit Pulp & Paper Mills Ltd., v. Collector of Central Excise].

The principle of statutory interpretation by which a generic word receives a limited

interpretation by reasons of its context is well established. In the context with which we are
concerned. We can legitimately draw upon the ‘nocitur a soliis’ principle. This expression simply
means that ‘the meaning of a word is to be judged by the company it keeps’.

Two or more words which are susceptible [capable or admitting] of analogous meaning can be
coupled together. The meaning of the word should be judged by the company it keeps. For
example: Telegraph Act which deals with Telegrams was construed to include Telephone though
not defined in the Act.

3) OCCUPIED FIELD:
The occupied field with the help of constitutional concept Legislative power and the distribution
of legislative powers conferred by Article 246 are distributed by List I, List II and List III. In India
legislative powers of Parliament and State legislatives are conferred by Article 246 and
distributed by List I, List II and List III in the Seventh Schedule of Constitution. Parliament has
exclusive power to make laws with respect to any of the matters in List I, which is called the
Union List and State Legislatures have exclusive power to make laws with respect to the matters
in List II, which is called the State List. Parliament and State Legislature, both have power to
make laws in respect to the matters in List III, which is called the Concurrent List. Residuary
power of legislation is vested in Parliament by virtue of Article 248 and entry 97 in List I. The
power of State Legislature to make laws is subject to power of Parliament to make laws with
respect to matters in List I and List III. While examining the legislative competence of the
parliament to make law, it is required to be seen whether the subject matter is of List II, which
the Parliament cannot enter in vesting of residuary power. Entries in the legislative list are fields
of legislation and receive widest construction. A matter mentioned in the entry is construed to
cover all ancillary and subsidiary matters which can be comprehended.

4) NON OBSTANTE CLAUSE:

The clauses beginning with “Notwithstanding anything contained in the Act or some particular
provision in the Act or in some particular Act and in any law for the time being in force, is
sometime appended to a section in the beginning with a view to give the enacting part of the
section, in case of conflict, an overriding effect over the provision or Act mentioned in the non
obstante clause. It is equivalent to say that in spite of the provision or Act mentioned non-
obstante clause, the enactment following it will have its full operation or that the provision
embraced in the non obstante clause will not be impediment for the operation of the enactment.
Thus, a non-obstante clause may be used as a legislative device to modify the ambit of the
provision or law mentioned in the non-obstante clause or to override it in specified
circumstances. The phrase notwithstanding anything…” is used in contradiction to the phrase
“Subject to ….”, the latter conveying the idea of a provision making place to another provision or
other provisions to which it is made subject. A non-obstante clause must be distinguished from
the phrase “without prejudice”. A provision enacted ‘without prejudice’ to another provision,
has not the effect of affecting the operation of the other provision and any action taken under it
must not be inconsistent with other provisions. There is a close relation between the non-
obstante clauses with the provision to which it is appended, it may throw some light as to the
scope and ambit of the enacting part in case of ambiguity, but when the enacting part is clear,
its scope cannot be cut down or enlarged by resort to non-obstante clause.

5) DOCTRINE OF REPUGNANCY:
Repugnance, one definition given is ‘inconsistency’. The words, though not exactly synonymous,
may be and often are used interchangeably and Repugnancy between two statutes may be
ascertained on the basis of following three principles:
a) Whether there is a direct conflict between the two provisions.
b) Whether the Parliament intended to lay down and exhaustive code in respect of the subject
matter – replacing the Act of State Legislature.
c) Whether the law made by the Parliament and the law made by the State Legislature occupy
the same field.

A law made by a State Legislature with respect to a matter in the concurrent list if repugnant to
a law made by parliament will be void to the extent of the repugnancy unless the state law has
received the assent of the President, in which case it will prevail in that state (Article 254 of
Constitution of India). When a Central Act is enacted earlier, although brought into force later to
the law enacted by the state which has received the assent of the parliament, the central Act
being earlier law will give way to the state law on matters covered by it. So doctrine of
repugnancy is avoidance of conflict between the Statutes.

The assent of the president which gives primacy to the state Act has to be given after due
consideration. The primacy of the state law will therefore be, restricted against the law enacted
by parliament which is mentioned in the proposal for seeking assent of the president to the state
law and the primacy of the state law will not extend against any other law enacted by
Parliament which is not mentioned in the proposal. But the assent of the President to the state
law does not prevent parliament from enacting later any law with respect to the same matter
including a law adding, amending or repealing the state law.

Repugnancy may also arise outside the concurrent list for a state legislature’s power, even in
respect of matters in the exclusive state list is subject to parliament’s power to make laws in
respect of matters in list I and list III. Because of Doctrine of Pith and Substance which permits
incidental encroachment in the rival field. It is possible that a law made by a state legislature,
which in pith and substance is a law in respect of matter in list II has made incidental
encroachment on some matter in list I. Such an incidental encroachment will be valid if the field
of encroachment is not is not covered. But, it will be void to the extent of repugnancy, if the
field be already covered or it will become void if the field be later covered by a law made by
Parliament.

6) Incidental or Ancillary Powers:

The phrase as ‘ancillary’ connotes assistance of a subordinate or subservient kind. Any
agreement which is ancillary to an earlier agreement in this sense may well involve some
verification of an earlier agreement and in one sense, a measure of conflict with it.

Ancillary powers are, if the statute omits certain acts, then such ancillary powers are presumed
to be conferred. It has been held that, where a provision of an Act is omitted by an Act, 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-enactment provision. It has been held that
“there is no real distinction between repeal and an amendment.

The central meaning of ‘amend’ is to alter legal meaning of an Act or provision, short of entirely
rescinding it. And the central meaning of ‘repeal’ is to rescind the Act or provision in question.
Thus if a section is deleted, it can be said that it has been repealed, while the statute itself has
been amended. In this case the procedure prescribed for amending an Act was held to apply also
its repeal.

6) Colourable Legislation:
Superficially it may appear that they are acting within their power, but on careful scrutiny, it is
revealed that under the4 guise of exercise of legislative powers, they are legislating upon a
subject which they have no powers to legislate. The Legislature pretends to act within its power
and goes beyond. Such transgression may be patent, manifest or direct but it may also be
disguised, covert and indirect and it is to the later class or cases that the expression “colourable
legislation” has been applied. When the transgression is direct or overt, then such law made is
ultra-vires. The colourable legislation is a legislation which is in appearance only and not in
reality, what it purports to be. This doctrine postulates the legislature attempts to do indirectly
what it cannot do directly.

Test to determine whether Legislation is colourable is (1) The substance of the Act, not the form
of it (2) Things are to be examined under following:
a) Purpose or object of the Act.
b) The effect of Legislation.

The object is in fact to determine the vires or power of the legislature to enact the particular
law. The court is not concerned with the motive in enacting the law if the legislature is within its
powers to enact the law or is not circumscribed by any constitutional limitations. In a case of
Supreme Court in 1961, the fees levied, is essential for services rendered and there is an ‘quid
pro quo’ (advantage granted in return) between the person who pays the fees and the public
authority who imposes the tax. Tax recovered by public authority goes in Consolidated Fund,
which is used for the Public Welfare purposes. Whereas, a cess levied by way of fees is not
intended to be and does not become a part of the consolidated fund. Court would have to look
the type of scheme and will have to determine whether there is correlation between the services
and the levy or is levied in such an extent as to be pretence of a fee and not fee in reality “to
the reference to its effect”. Thus the court can look to the matter and the effect of colourable
legislation. Statute void if it attempts to usurp [to take possession by force without right] powers
under the colour of the Statute.

7) PRESUMPTION AS TO JURISDICTION:
There is a strong presumption that Civil Courts have jurisdiction to decide all questions of civil
nature. The exclusion of jurisdiction of Civil Court is therefore not readily inferred and such
exclusion must either be, explicitly expressed or clearly implied. The existence of jurisdiction of
Civil Court to decide questions of civil nature being the general rule and exclusion being
exception, the burden of proof to show that jurisdiction is excluded in a particular case is on the
party raising such contention. The principle is not limited to Civil Courts but also applies to all
courts of general jurisdiction including Criminal Courts. The rule as stated relating to strict
construction of provisions, excluding jurisdiction of courts of general jurisdiction was approved
by Supreme Court in Atmananda V. Shri Ramkrishna Tapovanam. Exclusion of jurisdiction of
ordinary criminal courts can be brought about by setting up courts of limited jurisdiction in
respect of limited field only if vesting and the exercise of limited jurisdiction is clear and
operative. The statue prima facie confers power on particular court.

8) Effects of Repealed Statute/ Analyze Section 6 of the General Clauses Act:

Section 6 of the General Clauses Act, 1897 describes the effect of Repeal Statute as where this
Act or any Central Act or Regulation made after commencement of this act, repeals any
enactment hitherto made or hereafter to be made, then, unless a different intention appears,
the repeal shall not:
a) Revive anything not in force or existing at the time at which the repeal takes effect.
b) Affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder.
c) Affect any right, privileges, obligation or liabilities acquired, incurred under any enactment
so repealed.
d) Effect any penalty, forfeiture or punishment incurred in respect of any offence committed
against any enactment so repealed.
e) Affect any investigation, legal proceeding or remedy in respect of the forfeiture or
punishment as aforesaid and any such investigation, legal proceeding or remedy may be
instituted or continued or enforced and any such penalty, forfeiture or punishment may be
imposed as if the repealing Regulation had not been passed.

The object of repealing and Amending Acts is not to bring in any change in law but to remove
enactment which have become unnecessary.

A statute after its repeal is as obliterated (wiped out) as if it had never been enacted. Except the
proceedings which are commenced preceding under the repealed Statute can be commenced or
continued after the repeal [Keshavan V. State of Bombay].

If one statute is repealed by a second which in turn is repealed by third, the effect to revive the
first statute, unless a contrary intention is indicated in third statute as a result of these frequent
repeals. Confusion arises, therefore, the practice of inserting savings clause in repealing statute
was adopted later on. To obviate the necessity of inserting saving clause in each and every
repealing statute, a general provision was made in Section 38(2) of the Interpretation Act, 1889.
Now Section 38(2) of Interpretation Act, 1978.

9) Punctuation in Interpretation of Statute:

Generally, in England, the modern Acts, it is very doubtful if punctuation can be looked at for
purpose of construction. The punctuation in India, the Statutes are not very different. It was
stated that it is an error to rely on punctuation, in construing the Acts of legislature, while
construing Article 48 of the Limitation Act, 1908, which stated “for specific moveable property
lost or acquired by theft, or dishonest misappropriation or conversion or for compensation for
wrongfully taking or detaining the same. It was rejected the contention that the word
“dishonest” qualified not only “misappropriation” but also “conversion bringing only dishonest
conversion” within the Article and observed that “the truth is that, is the article is read without
the comas inserted in print, as a court of law is bound to do, the meaning is reasonably clear. In
a case Mukharjee J. stated as “punctuation is after all a minor element in construction of
Statute” and very little attention is paid to it by English Courts. Punctuation, though a minor
element may be resorted for purpose of construction. Punctuation may have uses in some case,
but it cannot be regarded as controlling element and cannot be allowed to control the plain
meaning of a text.

Another case in Mohd. Shabbir V. State of Maharashtra, in Section 27 of the Drugs and Cosmetics
Act, 1940 was construed. According to the section, whoever “manufactures for sale, sells stocks
or exhibits for sale or distributes” a drug without a licence was liable for punishment. The
Supreme Court held that the presence of comma after manufactures for sale and sells and
absence of comma after “sells” indicates that mere stocking is not an offence within the section.
It was held that only stocking for sale could amount to offence and not mere stocking.

10) Literal or Grammatical Construction:

The rule of literal construction is considered as the first principle of interpretation. According to
this rule the words of an enactment are to be given natural and ordinary meaning and if such
meaning is clear and unambiguous, the effect should be given to a provision of a statute
whatever may be the consequences. When wordings of the statutes are absolutely clear and
unambiguous rule of literal construction is to be applied and recourse of other principles of
interpretation is not required.

The rule of literal construction is applicable both to the private law as well as public law. This
rule can be easily understood under following heads:
Natural and grammatical meaning:
Words of statute first understood in their literal, natural, ordinary, popular sense and phrases
and sentences are construed according to their grammatical meaning, unless that leads to
absurdity (as applied to a statute means not only that which is physically impossible but also that
which morally so, that which is contrary to reason, that which cannot be attributed to a man in
his right sense) or unless there is something in the context or in object of the statute to suggest
contrary.

Explanation of a Rule:
When it is said that words are to be understood first in their literal, natural, ordinary or popular
sense (all may be used interchangeably to convey the same idea), it means that the words must
be ascribed the natural, ordinary and popular meaning which they have in relation to the subject
matter with reference to which the context in which they have relation with the subject matter,
with reference to the context in which they have been used in the statute. When that natural or
ordinary meaning indicates such result which cannot be opposed have been the intention of the
legislature, then it is to be seen for some other possible meaning of the word or phrase, which
may then convey the true intention of the legislature. In construction, the context means a
statute as a whole, the previous state of law, other statute in pari material, the general scope of
the statute and the mischief that it was intended to remedy.
5) Exact meaning preferred to loose meaning:
There is presumption that words are used in an Act of Parliament correctly and exactly and
not loosely and inexactly. Those who assert that the rule is broken, the burden of
establishing their proposition lies heavily and they can discharge it only by pointing
something in the context, which show that the loose and inexact meaning must be preferred.
Every word has a secondary meaning; preference to secondary meaning does not offend the
rule that preference should not be given loose meaning.
6) Technical words in technical sense:
The technical words are to be understood in the technical sense only viz.
c) Special meaning in trade, business, science etc.
d) Legal sense of words.

In the case of Tata Consultancy Services V. State of A.P., the Supreme Court has held that the
principle of ironing out the creases does not justify rewriting a clause or doing violence of is
language. Grammatical construction leading to absurdity or injustice is to be avoided only if
language admits or such construction. A literal rule would not be denied only because
consequences to comply with the same way lead to a penalty. The court should not be over
zealous (enthusiastic/eager) in searching for ambiguous or obscurities (unclear or difficult to
understand) in words which are plain.

In the case of Suthendran V. Immigration Appeal Tribunal, the question related to section 14(i) of
the Immigration Act, 1971, which provides that ‘a person who has a limited leave under this Act
to enter or remain in the United Kingdom may appeal to an adjudication against any variation of
the leave or against any refusal to vary it. ‘a person who has a limited leave’ were construed as
person should not be included “who has had” such limited leave and it was held that the section
applied only to a person who at the time of the lodging of his complain was lawfully in the United
Kingdom, in whose case leave had not expired at the time of lodgement of an appeal.

11) Providing mens rea in statutory offences:

Mens rea expressed in the maxim “actus non facit reum nisi mens sit rea” which means that the
existence of guilty intent is an essential element/ingredient of a crime. Mens rea is a state of
mind stigmatized [describe or regard as worthy of disgrace or great disapproval] as wrongful by
criminal law, which when compounded with the relevant prohibited conduct constitutes a
particular crime. Crime involving mens rea are of two types:
i) Crimes of basic intent
ii) Crimes of specific intent.

In crime of basic intent, the mens rea does not go behind the actus reus while the crime of
specific intent, mens rea goes beyond the contemplation of the prohibited act and foresight of
its consequences and has a purposive element. Ignorance of law is no defence in criminal law but
if the law is not published in any manner whatsoever to enable a person to find it out by
appropriate enquiry, the absence of knowledge of the prohibition may afford a defence of
absence of mens rea. But it is no defence that accused acted on a mistaken interpretation of
statute which he believed to be correct. When the offence is committed the question arises as to
the type of offence which can be answered on the true construction of the statute. It is said that
“There is a presumption that mens rea an evil intention or knowledge of the wrongfulness of the
act is an essential ingredient of every offence, but that presumption is liable to be displaced
either by the words of Statute creating an offence or by the subject matter with which it deals or
both must be considered. In a English case, it is found that there are three classes of cases where
the legislature normally enacts absolute prohibition:
1. First is a class of Acts which are not criminal in any real sense but are acts which are
prohibited in public interest under a penalty and instances of this class are found in Revenue
Statutes, Adulteration Acts, Game Acts.
2. Second class comprehends some and perhaps all public nuisances.
3. Third class of cases are those were although the proceeding may be criminal in form, they
are really only a summary mode of enforcing civil rights.

12) Presumption that statutes are territorial in nature:

The statutes are territorial in nature, whereas Article 245(1) of the Constitution states that
subject to the provisions of this Constitution Parliament may make laws for whole or any part of
the territory of India and the legislature of state may make laws for the whole or any part of the
state. According to Article 245(2) no law made by the Parliament shall be deemed to be invalid
on the ground that it would have extra territorial operation. Thus the constitution confers the
power to enact laws having extra territorial operation only to the Union Parliament and not to
the state legislature and consequently an extra territorial law enacted by state is challengeable
unless the same is protected on the ground of territorial nexus. If a state law has sufficient nexus
or connection with the subject matter of that law, the state law is valid even when it has extra
territorial operation. It could therefore be said that a state legislature is also empowered to
enact a law having extra-territorial operation subject to the condition that even though the
subject matter of the law is not located within the territorial limits of the state, there exists a
sufficient nexus or connection between the two. The principle of territorial nexus is mostly
applied in India in taxation.

13) STRICT CONSTRUCTION OF TAXING STATUTES:

Tax imposed for raising general revenue of the state for public purposes, in contrast to tax, a fee
is imposed for rendering services and bears a broad co-relation with the service rendered. Article
265 of the constitution states “No Tax shall be levied or collected except by authority of law”.
Article 366(28) of the Constitution defines the Taxation and tax as “Taxation includes the
imposition of any tax or impost (similar compulsory payment) whether general or local or special,
and tax shall be construed accordingly”. A fee being compulsory imposition of money is also a tax.
A power of tax cannot be inferred from a general entry for taxes are specifically named and
distributed between the Union and State by various entries in List I and List II of the Constitution.
A tax not mentioned can be levied by the Union under a Parliament’s residuary Power in entry 97
of List I. Power to levy fee is conferred by the last entry in each list in general terms in respect
of any of the matters in the list. A scrutiny of List I and List II shows there are no matters
overlapping in the Union and the State’s list.

Any compulsory extraction of money by Government amounts to imposition of tax which is not
permissible except by or under the authority of statutory provision.

Taxing Statute is to be strictly construed. Supreme Court has in the case of A. V. Fernandez v.
State of Kerala stated the principle as follows “In construing fiscal statutes and in determining
the liability of a subject to tax one must have regard to the strict letter of law. If the revenue
satisfies the court that the case falls within the provisions of the law, the subject can be
taxed. If on the other hand, the case is not covered within the our corner of the provisions of
the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe
into the intentions of the Legislature and by considering what was the substance of the
matter’.

Every taxing statute has a charging section and provisions laying down the procedure to assess
the tax and penalties, methods of collection and may also contain provisions to prevent pilferage
of revenue. The nature of tax imposed by a statute has to be determined by examining pith and
substance of the statute and by passing more attention to the charging section than to the basis
or machinery adopted for assessment and collection of tax. There are three components of
taxing statute (i) Subject of the tax, (ii) Person liable to pay the tax and (iii) The rate at which
the tax is levied.

If there is any real ambiguity in respect of these components which is not removed by reasonable
construction there would be no tax in law till the defect is removed by the legislature. There are
three stages in the imposition of tax:
1) Declaration of liability in respect of persons or property
2) Assessment of tax that quantifies the sum which the person liable to pay
3) Methods of recovery if the person taxed does not voluntarily pay.

Justice Bhagwati, stated the principle as follows in construing fiscal and determining the liability
of a subject to tax, one must have regard to the strict letter of the law. If the revenue satisfies
the court that the case falls strictly within the provisions of the law, the subject can be taxed. If
on the other hand the case is not covered within four corners of the provisions of taxing statute,
no tax can be imposed by inference or by analogy or by trying to probe into the intention of the
legislation and by considering what was the substance of the matter.

Justice Shah has formulated the principle thus, in interpreting a taxing statute, equitable
considerations are entirely out of place nor can taxing statute be interpreted on any
presumptions or assumptions. It must interpret the taxing statute in the light of what is clearly
expressed. It cannot imply anything which is not expressed, it cannot import provisions in the
statute so as to supply any assumed deficiency.

Therefore, if the words used are ambiguous and reasonably open to two interpretations, benefit
to interpretation is given to subject. If the Legislature fails to express itself clearly and the tax
payer escapes by not being brought within the letter of the law, no question of unjustness arises.
In construing Court fees Act, there is yet another ground for construing it strictly. The Act may, if
the fees is heavy, seriously restrict the rights of a person to seek his remedies in a court of
justice and as an access to justice is the basis of the legal system in a case where there is
reasonable doubt, the benefits of construction must go to him, who says that the lesser court fee
alone to be paid.

14) Consolidating and Codifying Statutes:

The purpose of codifying statute is to present an ordinary and authoritative Statement of the
leading rules of law on a given subject, whether those rules are to be found in statute law of
common law. The essence of codifying statute is to be exhaustive on the matters in respect of
which it declares the law and it is not the province of a judge to disregard or go outside the
letter of enactment according to its true construction. In construing Hindu Succession Act, 1956,
which is an Act to amend and codify the law relating to intestate succession among Hindus, it is
not permissible to apply the principles of Hindu Law on matters covered by the Act as a son
inheriting his father’s separate property under section 8 of the Act takes it as his exclusive
property and the property does not become coparcenary property with his sons. A codifying
statute may be a code with respect to a particular branch of subject.

Consolidating of Statutes:
The purpose of consolidating statute is to present whole body of statutory law on a subject in
complete from repealing the former statute. A consolidating statute is not mere compilation of
earlier enactments. The object of consolidating statute is to make useful code which should be
applicable to the circumstance existing at the time when consolidating Act is passed. For this
object, all the statutory law bearing upon a particular subject is collected and transformed into
a useful code. In consolidating statute the presumption is that such a statute is not intended to
alter the law. Therefore, it is relevant to refer to the previous state of the law or to judicial
decisions interpreting the repealed Acts for purpose of construction of corresponding provisions
in the consolidating statute. The question of construction of earlier statute in which that section
first appeared, and it is necessary to refer to the various Acts in the series as also to be common
law existing at the time when the earlier Act was enacted [General Electric Co. V. General
Electric Co. Ltd.].

A consolidating statute should be interpreted according to normal construction and recourse to

repealed enactments can be taken only to solve any ambiguity. As to construction of
consolidated Act, reference had to be made to the statutes which it had consolidated and
repealed. For construction of a consolidation Act, the primary rule is to examine the language
used in the Act without reference to the repealed statutes, when the consolidating statute
consolidating statute is not ambiguous, recourse to repealed enactment should not be done.

There are three types of consolidating statutes/Acts:

1) Pure Consolidation (re-enactment).
2) Consolidation with correction and minor improvement.
3) Consolidation with amendments.
4) Definition in another Statute. Definition of a word or phrase in another statute or rule
cannot be referred to, if it has already been defined in the Statute or Rule.

15) Coming into operation of enactments (Commencement):

It is stated in Section 5 of The General Clauses Act, 1897 as follows:
i) Where any Central Act is not expressed to come into operation on a particular day,
then it shall come into operation on the day on which it receives the assent.
ii) In the case of Central Act made before the commencement of the Constitution, of the
Governor General.
iii) Unless the contrary is expressed, a Central Act or regulation shall be construed as
coming into operation immediately on the expiration of the day preceding its
commencement.
The presidential shall come into operation on assent of the President and on the day preceding
its commencement. Thus if a Central Act is assented to by President on 26 th January at 11 a.m.,
it would be construed to have come into operation on the mid-night of 25th day of January. In the
various States’, General Clauses Acts, a State Acts comes into force on the day when the assent
of the Governor or President as the case may be is first published in the official Gazette of the
State.

16. DOCTRINE OF ECLIPSE

According to Article 13(1) of the Constitution all laws in force in the territory of India
immediately before the commencement of the constitution, as they are inconsistent with the
provisions of this part, shall to the extent of such inconsistency be void. Article 13(2) of the
Constitution says that the state shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall to the extent of the
contravention be void.

In State of Bombay v. F. N. Balsara, eight sections of a pre-constitution legislation “The Bombay

Prohibition Act, 1949” were held to be unconstitutional in view of Article 13(1) in so far as they
prohibited possession, use and consumption of medicinal preparations, which was violative of
Article 19(1)(f) of the Constitution.

In Saghir Ahmed V. State of Uttar Pradesh, the constitutionality of the Uttar Pradesh Road
Transport Ac 1951 was in question. The Supreme Court held it to be violative of Article 19(1)(g)
and hence void under Article 13(2) observing that unconstitutional law is a dead law incapable of
being vitalized by a constitutional amendment removing the fetters (restrain with chains or
manacles, typically around the ankles) and that the only course open is its re-enactment.

In Bhikaji Narain Dhakras V. State of Madhya Pradesh, the Supreme Court had drawn conclusion
that the Doctrine of Eclipse is based on the principle that any law which is in contravention of
fundamental rights is not by virtue of the same null and void but remains only unenforceable.

17. WELFARE LEGISLATION

The Welfare Legislation are the legislations which are designed for the benefits of a class or
persons such as labours, workmen, tenants and like, but which quite often contain penal
provisions. A question of this nature arose before the House of Lords in case, in relation to the
Railway Employment (Prevention of Accidents) Act, 1900, and different views were expressed.
The rule made under the Act provided for certain precautions to be taken by the Railway
Authorities for the protection of their workmen and a contravention of the rules was punishable
as an offence under the Act. In this case, it was emphatically said “It was suggested – that some
distinction is to be made in the application of this rule according to avowed (asserted, admitted,
or stated publicly) purpose of the Act. It is pointed by High Court of Australia, in essentially
remedial statute i.e. statute designed for promoting industrial safety, “the strict construction
rule is indeed one of the last resort”. A remedial or welfare statute is one which remedies a
defect in the pre-existing law, statutory or otherwise. Their purpose is to keep pace with the
views of society. They serve to keep our system of jurisprudence up to date and in harmony with
new ideas or conceptions of what constitutes just, fair and proper human conduct. Their
legitimate purpose is to advance human rights and relationships. Unless, they do this, they are
not entitled to be known as remedial legislation nor to be literally construed. Manifestly, a
construction which promotes improvement in the administration of justice and the eradication of
defects in our system of jurisprudence should be favoured over one which perpetuates wrong. It
seems proper to assume that the law-makers intended to advance our law forward as far as our
conceptions of justice and proper conduct extend. If no other, remedial legislation is entitled to
a Liberal construction.

18. MANDTORY AND DIRECTIVE PROVISIONS

Mandatory Statutes: Where the enactment prescribes that the contemplated action be taken
without any option or discretion, then such statute or enactment will be called Mandatory.
Directory Statute: Where, acting authority is vested with discretion of choice or judgment, the
statute will be called directory or discretionary.

6) When the legislature uses ‘must’ or instead of ‘shall’ it uses a word which is most strongly
imperative.
7) In some cases ‘must’ or the word ‘shall’ may be substituted for the word ‘may’, but only for
the purpose of giving effect to the clear intention of the legislature.
8) Normally, however, the word ‘may’ must be taken in the natural, that is, permissive sense
and not in an obligatory sense.
9) In the matters of procedure, mandatory words may be construed as directory.
10) ‘May’ and ‘shall’ are generally used in contradiction to each other and normally should be
given their natural meaning especially when they occur in the same section. But in phrase
like ‘it shall be lawful for the court’, ‘shall be liable to pay the costs or to interest’ and
‘shall be liable to be forfeited’, the meaning is not mandatory. The first expression means,
‘the court has discretion’; the second expression gives a discretion to the court ‘to award
cost or interest’, and third ‘not that there should be an absolute forfeiture, but a liability to
forfeiture which might not be enforced’.
11) Simultaneously, it may happen that in an Act the word ‘may’ is used in such a way as to
create a duty that must be performed.

The Supreme Court approved the passage: “The question as to whether a statute is mandatory or
directory depends upon the intent of the Legislature and not upon the language in which the
intent is clothed. The meaning and intention of the legislature must be governed, and these are
to be ascertained not only from the phraseology of the provision, but also by considering its
nature in one way or other.

19. EXPRESSUM FACIT CESSARY TECTITUM

The maxim means, ‘Express mention of one thing implies the exclusion of another’
Express enactment shuts the door to further interpretation. At the same time, general words in a
statute must receive a general construction, unless there is in the statute some ground for
limiting and restraining the meaning by reasonable construction; because, a great many things
are put into a statute ex abundant cautela, and it is not to be assumed that anything not
specifically included for that reason alone excluded from the protection of statute the method of
construction according to this maxim, must be carefully watched. It is a valuable servant but
dangerous master. The failure to make the ‘expressio’ complete may arise by accident. Similarly,
the ‘exclusio’ is often the result of inadvertence or accident or because it never struck the
draftsman that the thing supposed to be excluded requires specific mention. It is not enough that
the express and tacit are merely incongruous (not in harmony), it must be clear that they cannot
be intended to coexist. The maxim ought not to be applied when its application leads to
inconsistency or injustice.

The maxim of expressum facit cessary tacitum which is a synonym expression of maxim “unius
est exclusio alterius” says that when there is express mention of certain things, then anything’s,
then anything not mentioned is excluded.

The Supreme Court in B. Shankar Rao Badami V. State of Mysore, it was held that this maxim is a
principle of logic and common sense and merely technical rule of construction.

20. GENERALIA SPECIALIBUS NON DEROGANT

The general rule to be followed in case of conflict between two statutes is that the later
abrogates the earlier one. In other words prior special law would yield (give way) to a later law,
if either of the following conditions are fulfilled.

1) The two are inconsistent with each other.

2) There is some express reference in the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even general, would prevail.
[Ajaykumar Banerjee v. Union of India].
The general provision relating to meetings and the formalities to be served in connection therein
does not become inapplicable in ‘toto’ to a particular meeting mentioned in another section,
simply because some of the language of the general section is not appropriate to a meaning of
the later description.

The maxim “Generalia specialibus non-derogant” denotes that the general provisions in a statute
cannot be regarded as abrogating or controlling the special provisions in a statute and cannot be
regarded as abrogating or controlling the special provisions in the same. General things, do not
derogate from special things. Generalities do not get derogate from particular provisions.

The doctrine was explained in a case, where there are general words in a later Act capable of
reasonable and sensible application without extending them to subjects specially dealt with by
earlier legislation, you are not to hold that earlier and special legislation indirectly repealed,
altered or derogated (deviated) from merely by force of such general words, without any
indication of a particular intention to do so.

A general provision in an enactment ought to yield (give way) to special provision providing the
particular cases. Although the special provisions overrides the general, such overriding is only to
the extent of inconsistency between the two. Where there are provisions in a special Act which
inconsistent with the prior general Act, the provisions of the general Act must yield (give way)
those of special enactment.

In short:
The general words in a later Act cannot repeal, alter etc. special legislation which is earlier

21. EX PART FACTO LAW

Article 20 of the Constitution: A person cannot be punished for an act which was not an offence
declared by the law at the time of commission. Ex Parte Facto Laws deal with such acts and
punishment.

Article 20: Protection in respect of conviction for offences:-

(1) No person shall be convicted of any offence except for violation of a law in force at the time
of the commission of the act charged as an offence, nor be subjected to any penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of an offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.

22) PREAMBLE:
As per one dictionary, the beginning of a statute is called as preamble, which is a key to intent of
the makers of the Act, and the mischief they would remedy the same. Preamble is defined in the
Oxford English Dictionary to mean a preliminary statement in speech or writing; an introductory
paragraph, section or clause, introduction or introductory paragraph or part in statute, deed or
document setting for the ground and intention of it. The preamble thus betokens which follows.

The preamble of a statute like the long title is a part of the Act and is an admissible internal aid
to construction. Although not an enacting part, the preamble is expected to express the scope,
object and purpose of the Act more comprehensively than the long title. It may recite the ground
and cause of making the statutes. The evil sought to be remedied or the doubts which may be
intended to be settled.

Supreme Court has also enunciated the principles about the preamble “it is one of the cardinal
principles of construction that where the language of an Act is clear, the preamble must be
disregarded, where the object or meaning of enactment is not clear, the preamble may be
resorted to explain it. Again where very general language is used in an enactment which is clear,
must be intended to have a limited application, the preamble may be used to indicate to what
particular instances the enactment is intended to apply. The language used by the parliament is
ambiguous or is too general though in point of the fact parliament intended that it should have a
limited application. This observation must be read subject to the rule that the Act including the
preamble must be read as a whole to decide whether any part of the enacting provisions is clear
or ambiguous.

23. COMPUTATION OF TIME

It is defined under Section 10 of the General Clauses Act, 1897 as Computation of time:
1) Where, by any Central Act or Regulation made after the commencement of this Act, or any act
or proceeding is directed or allowed to be done or taken in any Court or office on a certain day
or within prescribed period, then, if the Court or office is closed on that day or the last day of
the prescribed period, the act or proceedings shall be considered as done or taken in due time if
it is done or taken on the next day afterwards on the which the court or office is open.
Provided that nothing in this section shall apply to any act or proceeding to which the Indian
Limitation Act applies.

2) This Section applies to all Central Acts and Regulation made on or after the fourteenth day of
January, 1897.

24. STATUES OF PARI MATERIA

Statutes in ‘pari materia’ is an important external aid, statute forming parts of same system are
construed together as explanatory of each other, like Taxation Statutes, Labour Law Statutes.
Entire subject matter of the two statutes need not be identical. Under the doctrine, assistance
can be taken of earlier statutes as well as later statutes. Sometimes, there could be
incorporation of earlier Act into later.

Statutes in ‘pari materia’ means statute dealing with the same subject matter or forming part of
the same system. The rule of context which says that a statute must read as a whole as words
are to be understood in their context, permits reference to other statutes in ‘pari materia’.
Where there are different statutes in ‘pari materia’ though made at different times, or even
expired and not referring to each other. They shall be taken and construed together, as one
system and as explanatory of each other.

The meaning of the phrase ‘pari materia’ has been explained in an American case:
Statutes are in Pari materia which relate to the same person or thing or to the same class of
person or used in opposition to it – intimating not likewise but identity. It is a phrase applicable
to Public Statutes or general laws made at different times and in reference to same subject.
When the two pieces of legislation are of differing scope, it cannot be said that they are in ‘pari
pateria’. Thus Bombay Rent Control Act,1947 and the Bombay Land Requisition Act, 1948, were
not held to be Acts in pari materia as they do not relate to the same person or thing or to the
same class of person or things.

It is not necessary that entire subject matter in the two statutes should be identical before any
provision in one may be held to be in pari materia with some provision in the other example. In
State of Madras v. A. Vaidyanathan, in which section 4 of the Prevention of Corruption Act, 1947,
which directs that on proof that the accused has accepted any gratification other than the legal
remuneration, ‘it shall be presumed that’, unless the contrary is established by the accused, that
the gratification was accepted as a bribe, has been held to be in pari materia with the subject
matter dealt with by the Indian Evidence Act, 1872. The definition of expression ‘shall presume’
in the Evidence Act has been utilised to construe the words it shall be presumed in section 4 of
the Prevention of Corruption Act, 1947.

The rules have following merits:

1) It avoids contradiction between a series of statutes dealing with the same subject.
2) The application of this rule allows the use of an earlier statute to throw light on the
meaning of a phrase used in a later statute in the same context.
 3) It permits the raising of a presumption, in the absence of any context indicating a
contrary intention that the same meaning attaches to the same words in a later statute as
in the earlier statute, if the words are used in similar connection in the two statutes.
4) It enables the use of later statute as parliamentary exposition of the meaning of
ambiguous expressions in an earlier statute.

25. MEANING OF SERVICE BY POST

Section 27 of the General Clauses Act, 1897 states the meaning of Service by Post – where any
Central Act or Regulation made after commencement of this Act authorises or requires any
document to be served by post, whether expression “serve” or either of the expression ‘give’ or
‘send’ or any other expression is used, then unless a different intention appears, the service shall
be deemed to be affected by properly addressing, prepaying and posting by registered post, a
letter containing the document, and unless the contrary is provided, to have been effected at
the time at which the letter would be delivered in the ordinary course of post.

Where a registered envelope containing a notice of demand, with the correct address of the
addressee, is presented to the tenant and refused by him, presumption of due service arises both
under Section 27 of General Clauses Act as well as u/s 114 of the Evidence Act [Funnilal v. Smt.
Chiranja].

Presumption would stand rebutted on the denial by the Assesse on oath, but the veracity of the
statement must be considered by the Court in the light of the evidence available on record
having regard to the conduct of the party concerned. The question whether the presumption is
rebutted is always a question of fact and the court should consider it having regard to the
conduct of the party concerned held in [Pulwada Venkateshwar Rao v. C.V. Ramanna]; [Jamal
Khan v. Haji Yusuf Ali].

26. SURROUNDING CIRCUMSTANCES

The court is entitled to take into account ‘such external or historical facts as may be necessary
to understand the subject matter of the statute or to have regard to the surrounding
circumstances which existed at the time of passing of the statute.

Lord Atkinson stated, “In the construction of statutes, it is of course, at all times and under all
circumstances permissible to have regard to the state of things existing at the time the Act was
passed and to the evils, which, as appears from the provisions, it designed to remedy.

The surrounding circumstances refer to state of Law and Parliamentary History, Reports,
Parliamentary Debates. In Keshavanand Bharti v. State of Kerala, the Supreme Court held that
Constituent Assembly Debates although not conclusive, show the intention of the framers of the
Constitution.

27. DOCTRINE OF ULTRA VIRES AND THE LEGISLATURE POWER

Beyond the powers doctrine embodied in the Article 13(2) for constitutional laws. Article 245 and
246 of the Constitution read with VIIth Schedule of the Constitution.

The doctrine of Ultra Vires means beyond powers, with reference to the legislature powers, it
means that neither State legislature nor Union Parliament can go beyond the field allotted to
them by the Constitution. If Parliament legislates in contravention to the provisions of the
Constitution, the Court by the doctrine of Ultra-vires, shall declare that piece of legislation
unconstitutional.

Article 13(2) states that State shall not make any law which takes away of abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the extent of
the contravention, be void.

Article 245: Extent of laws made by Parliament and by the Legislatures of States:-
1) Subject to the provisions of Constitution, Parliament may make laws for the whole or any
part of the territory of India, and Legislature of State may make laws for the whole or any
part of the state.
2) No law made by Parliament shall be deemed to be invalid on the ground that it would have
extra territorial operation.

Article 246: Subject matter of laws made by Parliament and by the Legislatures of State
1) Notwithstanding anything in clause (2) and (3), Parliament has exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as “the Union List”).
2) Notwithstanding anything in clause (3), Parliament and subject to clause (1), the Legislature
of any state also, have the power to make laws with respect to any of the matters
enumerated in the List III in the Seventh Schedule (in this Constitution referred to as “the
Concurrent List”).
3) Subject to clauses (1) and (2), the Legislature of any State has exclusive powers to make
laws for such State or any part thereof with respect to any of the matters enumerated in the
List II in the Seventh Schedule (in this Constitution referred to as “the State List”).
4) Parliament has the power to make laws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that such matter is a matter
enumerated in the State List.

29. QUASI REPEAL DESUETUDE

It is ‘the principle that laws can stop having any legal force when they have not been used
for a long time’. The English Law does not recognize any doctrine that Act of Parliament can
come to an end by desuetude or Non-user. But this doctrine is recognized by Scottish law.
Desuetude for its operation a considerable period, not merely or neglect but contrary usage of
such a character as practically to infer such completely established habit of the community as to
set up a counter law to establish a quasi-repeal. The doctrine of desuetude was rejected by
three judge bench of Supreme Court in State of Maharashtra v. Narayan, but, in another bench of
three judges it was observed that ‘it would advance the cause of justice to accept the
application of doctrine of desuetude in our country also and it was held that the 1881
notification in accordance with octroi rules enforced from time to time including Octroi rules of
1963, and hence the 1881 notification stood quasi-repealed by the time 1963 rules were framed.
Non-user and contrary practice has to be continued for a long time to bring about quasi-repeal by
desuetude.