Interpretation of Statutes

Q1. Explain the Doctrine of Retrospective Operation of Statutes.

Ans. The term ‘retrospective’ essentially means speculating or looking into the events or incidents that have
taken place in the past. When any law that was already existing is changed, altered, or some portion of it is
removed, it doesn’t remain the same as it was previously. However, the new changes still have an influence
on the events that occurred in the past. In other words, if a person commits an act that was not considered to
be an offence at that point under any legislation, but becomes one after some changes in the existing laws or
the introduction of a new law, the person could be held liable even for the acts committed by him in the past
that are now an offence.
This operation of a statute acts contrary to the general perception that any law is introduced to consider the
crimes that might be committed in the future. When a statute operates retrospectively, however, the new law
can be applied to the facts or the actions that were carried out even before such a law had been proposed.
When such a statutory provision is introduced which aims to consider past actions as well, it is clearly stated
that the act was said to be in operation from the given date in the past. From that date forth, all the offences
would be included within the purview of the statute and the people would be punished. These statutes are
also known as ex-post facto laws. There can be four different scenarios that might arise when retrospective
legislation is introduced:
1. Recognition of Crime
2. Removal of a Crime
3. Reduction in punishment
4. Increase in Punishment
PRESUMPTION AGAINST RETROSPECTIVE LEGISLATION:
The presumption against retrospective effect of the legislation is stronger in penal enactments than in civil
legislations. The presumptions also exists in civil matters but it is not so strong as in penal enactments.
A vested right cannot be taken away by an amending Act except by express language or by necessary
intendment and the intention to take away or to impair or imperil such vested right cannot be presumed
unless such intention is clearly manifested by necessary implication.
It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such
a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. If
the enactment is expressed in language which is fairly capable of either interpretation, it ought to be
construed as prospective only. But if the language is plainly retrospective it must be so interpreted even
though consequences may appear unjust and hard.
In the absence of anything contrary, an enactment is not deemed to be retrospective as that would impair an
existing right or obligation. Unless the language is plainly retrospective the legislation is construed as
prospective only. Every statute which impairs the existing right or creates a new obligation or imposes a new
duty has necessarily to be prospective as otherwise it would create a sense of disorder in the society.
Legislation cannot be given retrospective effect so as to affect existing rights unless it says so expressly or
by necessary implication. A retrospective operation is not to be given to a statute so as to impair an existing
right or obligation otherwise than as regards a matter of procedure, unless that effect cannot be avoided
without doing violence to the language of the enactment. If the enactment is expressed in language which is
fairly capable of either interpretation, it ought to be construed as prospective only.
Unless the amending Act expressly or by implication makes the amendment retrospective in operation,
neither amended section 4 of the Workmen’s Compensation Act nor the amended schedule IV could be
pressed into service for the purpose of claiming enhanced compensation thereunder, though the injuries
might have been sustained by the workmen prior to the amendment. It is true that the provisions of the
Workmen Compensation Act have been enacted with a view to make available compensation to injured and
disabled workmen, but the award of such compensation has to be computed and determined within the four
corners of the provisions of the Act, and consideration of beneficial legislation or liberal interpretation
cannot be permitted to colour the clear intention of the provisions of the Act.
PRINCIPLES RELATING TO RETROSPECTIVE OPERATION:
The question whether an enactment is meant to operate prospectively or retrospectively has to be decided in
accordance with well-settled principles:
1. The cardinal principle is that statutes must always be interpreted prospectively, unless the language
of statutes makes them retrospective either expressly or by necessary implication. Penal statutes
which create new offences are always prospective, but penal statutes which create disabilities,
though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a
clear intendment that they are to be applied to past events.
2. There are, however, statutes which create no new punishment, but authorize some action based on
past conduct. To such statutes, if expressed in language showing retrospective operation, the
principle is not applied.
3. Another principle which is also that an Act designed to protect the public against acts of harmful
character may be construed retrospectively if the language admits such as interpretation, even though
it may equally have prospectively meaning.
The general rule governing the construction of statutes, and statutory rules as well, is that no statute is to
have a retrospect beyond the time of its commencement for the rule and law of Parliament is that “nova
constitution futuris forman debet imponere, right non praeteritis”. In the absence of express words of
necessary intendment, it cannot be supposed that legislature meant to deprive a man of vested right. There is
material difference when a statute is dealing with rights already vested, not intended to be taken away and
when it is dealing with mere procedure to recover those rights, which may be quite reasonable to regulate
and alter. There is no vested right in right procedure.
The rule, no doubt, is that an amending statute must be regarded as having been written in the statute book
with the same pen and ink and the statute must, therefore, be regarded as incorporating the amendment from
the date on which the Act was passed. But the rule applies only for the purpose of determining what the
meaning of any particular provision of the Act as amended is, whether it is in the unamended part or in the
amended part. But this is not the same thing as saying that the amendment itself must be taken to have been
in existence as from the date of the earlier Act.
As a general rule the amending Acts which affect substantive rights would not have retrospective effect.
They will affect the transactions subsequent to the amendment and not apply to transactions antecedent to it.
Unless contrary is provided for, the law of limitation applicable to suit, etc. is the law in force at the date
when such suit, etc. is instituted and not an amending law which comes into operation during the pendency
of the suit, etc. But when amending law is procedural, it takes effect immediately and applies to all pending
proceedings.
It is a settled legal position that unless the rule is not expressly or impliedly made effective retrospectively,
which can be made applicable prospectively and no retrospectively, can be given in the absence of such
intention to make it applicable with retrospective date.
RETROSPECTIVE OPERATION OF CLAUSE CREATING BAR OF JURISDICTION:
In some statutes the legislature no doubt says that no suit shall be ‘entertained’ or ‘instituted’ in regard to a
particular subject-matter. It has been held by this court (the Supreme Court) that such a law will not affect
pending actions and the law is only prospective. But, the position is different if the law states that after its
commencement, no suit shall be ‘disposed of’ or ‘no decree shall be passed’ or ‘no court shall exercise
power of jurisdiction’. In this class of cases, the Act applies even to pending proceedings and has to be taken
judicial notice of the civil court.
PENDING ACTIONS:
In the case of pending actions the law is that the rights of the parties are decided according to the law as it
existed when the action was commenced, unless a clear intention to the contrary is found in the new statute.
When, however, the Act provides a retrospective operation of the statute, it will be construed accordingly
even though the consequences may appear to be unjust and hard.
In general, when the law is altered during the pendency of an action, the rights of the parties are decided
according to the law as it existed when the action was begun, unless the new statute shows a clear intention
to vary such rights. If a statute is in its nature a declaratory Act, the argument that it must not be construed
so as to take away previous rights is not applicable.
A declaratory Act may be defined as an Act to remove doubts existing as to the meaning or effect of any
statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to
set aside what Parliament deems to have been a judicial error, in the interpretation of statute.
A remedial Act, on the contrary, is not necessarily retrospective; it may be either enlarging or restraining
and it takes effect prospectively, unless it has retrospective effect by express terms of necessary intendment.
RETROSPECTIVE OPERATION OF THE AMENDMENT NOT TO AFFECT PENDING SUITS:
The right to sue as well as the right of appeal is a substantive right. Any law which impairs or imperils the
right or puts more onerous and stringent condition is not referable to a matter of procedure and is not
retrospective unless the legislature says so either expressly or by necessary intendment.
If the new law which has brought the change regarding the Courts which should hear and dispose of the
cases either expressly or by necessary implication does not take away the jurisdiction of Courts before which
the proceedings have already been commenced, the only reasonable view to be taken is that the proceedings
instituted earlier would go on as if the new law has not come into force at all and that the new law would
govern only those proceedings which are commenced after it had come into force. This view does not also
derogate from the rule of statutory construction that the law relating to procedure in regard to the conduct of
cases should ordinarily be held to be retrospective for the reason that an amending law which alters the
forum and abridges existing rights to appeal is not merely a procedural law.
Q2. Explain “Noscitur a Sociis”.
Ans. The doctrine of noscitur a sociis (meaning of doubtful word is to be known by reference to meaning of
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 a 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 words used in the
definition of terms in the statute.
The maxim noscitur a sociis (a thing is known by its companions) is an extended and attenuated version of
the ejusdem generis rule. It implies that words, even if they are not general words “like” whatsoever or
“otherwise” preceded 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 to that of the less general.
Maxims and precedents are not to be mechanically applied; they are of assistance only in so far as they
furnish guidance by compendiously summing up principles based on rules of common sense and logic.
The principle of statutory interpretation by which a generic word receives a limited interpretation by reason
of its context is well established. In the context with which we are concerned, we can legitimately draw upon
the “noscitur a sociis” principle. This expression simply means that “the meaning of a word is to be judged
by the company it keeps.”
In State of Rajasthan v. Sripal Jain, the respondent was compulsorily retired under Rule 244 of the
Rajasthan Service Rules under which the State Government has an absolute right to retire any government
servant, without assigning any reason, after he has completed twenty five years in service. He challenged
the order of his retirement on the ground that his case was not sent by the Chief Minister to the Governor as
is required under Rule 31(vii)(a) of the Rules of business which says that ‘proposals for dismissing,
removing or compulsorily retiring of any officer should be submitted to the Governor by Chief Minister.’
The Supreme Court observed that under the Rajasthan Service Rules, there are three kinds of compulsory
retirements – or proportionate pension as a penalty under Rule 56, on attaining the age of superannuation,
and under Rule 244. It seems at the outset that since Rule 31(vii)(a) of the Rules of Business is not qualified
with the expression as penalty, all the above mentioned categories of compulsory retirement ae covered by
it. But that cannot be the intention of the legislature if the Rule is carefully looked into. The reason is
apparent, viz., that Rule 31(vii)(a) deals with proposals for dismissing, removing and compulsory retiring.
All these three phrases must be interpreted on the principle of noscitur a sociis and so interpreted the
expression compulsory retirement must be in the nature of removal or dismissal. Since removal or dismissal
are always in the form of a penalty, the phrase compulsory retirement under Rule (vii)(a) must also mean
compulsory retirement as penalty. Since the respondent has not been compulsorily retired as a penalty, Rule
31(vii)(a) has no application. Therefore, it is clear that proposals of compulsory retirements under Rule 244
need not be submitted by the Chief Minister to the Governor as is required under Rule 31(vii)(a).
Q3. Explain the doctrine of Pith and Substance.
Ans. The 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 the question as to whether that legislature was empowered to make
law on that subject as per the entry in the list. Questions frequently come up before the Courts as to whether
a law purporting to be made under one or more legislative within those entries only or is in 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 Supreme Court has ruled that effect is not the same thing as subject-matter. If a State Act, otherwise
valid, has effect on a matter in List I it does not cease to be a legislation with respect to an entry in List II or
III. Where the Industrial Disputes Act, a Central Legislation, was challenged in so far as it was applicable to
the municipalities, on the ground that local government was a State subject under Entry 5 of List II, it was
held that the pith and substance of the impugned Act confirmed that it was a law enacted under ‘industrial
and labour disputes’ in Entry 22 of List III. Where a State law restricting the use of sound amplifiers after
ten in the night was challenged on the ground that it fell under ‘Post and Telegraph, Telephones, Wireless,
Broadcasting and other like forms of communication’ in Entry 31 of List I, it was held that the law in pith
and substance fell substantially within Entry 6 of List II dealing with ‘health and sanitation’ as power to
make law in relation to public health includes power to regulate the use of amplifiers as producers of loud
noise causing nuisance. On the question as to whether the Maharashtra Industrial Development Act enacted
by the State Legislature falls under Entry 24 of List II relating to ‘Industries’ or is subject to the provisions
of Entries 7 and 52 of List I, it was held that the pith and substance of the Act of establishment, growth and
organization of industries, acquisition is land in that behalf and carrying out the purpose of the Act by
setting up the corporation as one of the limbs and agencies of the government, and is, therefore, within the
purview of the State and not the Union.
REASON BEHIND THE FORMATION OF DOCTRINE OF PITH AND SUBSTANCE
The objective behind the creation of this doctrine was to prevent absolute intrusion of legislative powers by
evaluating the ‘content’ of enactment and then determining which list the specific subject matter fell within.
As a result, this doctrine is applied to establish the legislative competency of a given law by examining the
‘content’ of that statute. Examining an enactment’s ‘substance’ might lead to one of two outcomes:
1. The enactment’s substance corresponds to the subject matter given to the legislature for the purpose
of enacting laws: This will constitute the enactment totally lawful.
2. Enactment includes subject matter that is outside the jurisdiction of the federal or state legislatures:
This may result in a partial or accidental incursion of legislative powers, which may or may not
render the entire statute invalid or void. Certain subject topics enumerated in the three lists indicated
in the Seventh Schedule might overlap at times, therefore incidental encroachments are permitted to
some extent when evaluating legislative competency.
FEATURES OF THE DOCTRINE OF PITH AND SUBSTANCE
1. The philosophy behind the doctrine emphasises that it is the primary subject matter that must be
contested, not its unintended consequences in another discipline. Pith refers to a thing’s ‘essence’ or
‘real nature’, whereas substance refers to a thing’s most significant or fundamental portion.

2. The adoption of this doctrine is necessary because otherwise every law would be considered
unconstitutional since it encroaches on the subject matter of another realm.

3. The actual character of law is defined by pith and substance. The true subject matter is being
questioned in this regard and not its unintended consequences in another discipline. The idea has also
been used in India to allow some flexibility in an otherwise strict electricity distribution structure.

4. To identify which list a piece of legislation belongs to, the doctrine looks at its genuine nature and
substance.

5. It considers whether the state has the authority to enact legislation that affects a subject from another
list or not.

DOCTRINE OF PITH AND SUBSTANCE UNDER THE INDIAN CONSTITUTION

The doctrine of pith and substance, sometimes known as incidental encroachment, is a product of Canadian
jurisprudence that has been applied to the Government of India Act, 1935, and the current Constitution.
Occasionally, legislation is enacted under the authority of an item in one of the VII Schedule’s Lists. The
idea of pith and substance is employed in such instances to determine which legislature has the authority to
implement such legislation. The court must consider the genuine nature and character of the law, whether it
essentially comes within the authority of the legislature passing it, and whether it is valid even though
incidentally it touches upon some matter within the competence of another legislature.
In general, the Parliament and state legislatures are supposed to say in their allocated sectors and not trespass
on each other’s jurisdiction. If otherwise, the legislation would be declared illegal by the judiciary. But first,
it will apply the doctrine of pith and substance to determine the true authority that the aforementioned piece
of law comes under. To put it another way, the idea of pith and substance is used to identify which category
a piece of legislation belongs to. However, the powers bestowed on each level are certain to intersect at
some point. It is impossible to draw a clear line between the competencies of separate legislatures as they
will inevitably overlap at times.
NEED FOR THE DOCTRINE OF PITH AND SUBSTANCE IN INDIA
1. One of the key reasons for the doctrine’s adoption and use in India was to give flexibility to an
otherwise inflexible framework for power allocation under a federal structure.

2. Another important ground establishing a need for the doctrine in India is that if every legislation
were to be declared invalid on the ground that it encroached on the subject of another legislature,
then these powers assigned to the legislature would be enormously restrictive, and this would not
serve the purpose of the power being granted to the legislature.
INTERPRETATION OF THE DOCTRINE OF PITH AND SUBSTANCE
In Kartar Singh v. the State of Punjab (1961), the Supreme Court’s Constitutional Bench explained how the
doctrine of pith and substance should be applied. It was discovered that when the idea odd pith and
substance is applied, legislation relating to a topic in one of the lists may also be connected, if indirectly, to a
subject in another list. The essence and substance of the legislation must be determined in such a case. If a
comprehensive examination of the law reveals that it is on a topic listed in a list pertaining to the legislature,
the act in its whole is to be deemed legal, regardless of any incidental encroachments that may exist.
When there is a question of legislative power, the courts must apply the theory of pith and substance. The
court analyses the statute’s subject matter to the subjects covered by the three Lists, namely, the Union, the
State, and the Concurrent List, and determines which of the three lists would cover the law. If the statute is
covered by the list that pertains to the legislature in question, it will be declared null and invalid.
It was decided in State of Rajasthan v. Vatan Medical and General Store (2001) that once enactment is
inside the four corners of an item in List-II (State List), no central law, whether issued with respect to an
entry in List I or List III, can impact the legality of that state enactment. The court further concluded that
once enactment is related to Entry 8 in List II, or any other entry in List II for that matter, Article 246 cannot
be used to argue that the state legislature is not competent to pass that statute.
In the case of Zameer Ahmed Latifur Rehman Sheikh v. the State of Maharashtra and Ors (2010), the notion
of pith and substance was effectively articulated. The doctrine, according to the Court, should be used when
the legislature’s legislative power in relation to a certain statute is called into doubt. If there was a challenge
to the legislature’s capacity, the court would assess the law’s gist and content after the Act had been
scrutinized. It is crucial for the courts to evaluate the real character of the legislation, its goal, scope, and
impact, as well as to determine if the law in issue was genuinely covered by a subject matter listed in the
legislature’s concerned list.
Q4. What do you mean by “Literal or Grammatical Interpretation”?
Ans. The first principle of interpretation is the literal or grammatical interpretation which means that the
words of an enactment are to be given their ordinary and natural meaning, and if such meaning is clear and
unambiguous, effect should be given to a provision of a statute whatever may be the consequences. The
basis of this principle is that the object of all interpretations being to know what the legislature intended,
whatever was the intention of the legislature has been expressed by it through words which are to be
interpreted according to the rules of grammar. This has been called the safest rule because the legislature’s
intention can be deduced only from the language through which it has expressed itself. If the language of a
statute is plain, the only duty of the court is to give effect to it and the court has no business to look into the
consequences of such interpretation. The court is under an obligation to expound the law as it exists and
leave the remedy to the legislature if harsh conclusions result from such exposition. Similarly, the court
should give technical meaning to a technical word. The words of statute are first understood in their natural,
ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning,
unless that leads to some absurdity or unless there is something in the context or in the object of the statute
to suggest the contrary. The epithets ‘natural’, ‘ordinary’, ‘literal’, ‘grammatical’, and ‘popular’ are
employed almost interchangeably, but their indiscriminate use leads to some confusion, and probably, the
term ‘primary’ is preferable to any of them, if it be remembered that the primary meaning of a word varies
with its setting or context and with the subject-matter to which it is applied; for reference to the abstract
meaning of words, if there be any such thing, is of little value in interpreting statutes.
The literal or plain meaning rule has been expressed by Jervis C.J. in Albey v. Dale:
“If the precise words used are plain and unambiguous, in our judgement, we are bound to construe them in
their ordinary sense even though it does lead, in our view of the case, to an absurdity or manifest injustice.”
Dias observes that there is, in the first place, an unfortunate tendency to imagine that the courts are thereby
giving effect to the intention of Parliament on the hypothesis that “the words themselves do, in such a case,
best declare the intention of the law-giver.” But it would seem that whenever the Literal rule is applied any
reference to the intention of Parliament is better avoided. Secondly, the “plain meaning rule” suffers from
the inherent weakness that it is not always easy to say whether a word is “plain” or not.
According to Dias the literal rule needs to be understood subject to the following five explanatory riders:
1. The statute may itself provide a special meaning for a term, which is usually to be found in the
interpretation section.
2. Technical words are given their ordinary technical meaning if the statute has not specified any other.
3. Words will not be inserted by implication.
4. Words undergo shifts in meaning in the course of time.
5. Finally, and by no means the least, it should always be remembered that words acquire significance
from their context.
In Shriram v. State of Maharashtra, the Magistrate considered a report under Section 173, Code of Criminal
Procedure, 1898 against the appellant as well as the documents produced before him, and framed charges
against him on the basis of these. The Magistrate, however, did not examine any eye-witnesses cited by the
prosecution. The Sessions Court convicted the appellant and the High Court confirmed the conviction.
Appealing against his conviction the appellant argued before the Supreme court that the act of the Magistrate
committing him for trial was illegal because the Magistrate had not examined the eye-witnesses as was
required under Section 2017-A(4) of the Code of Criminal Procedure, 1898 which says that the Magistrate
shall take the evidence of such persons, if any, as may be produced by the prosecution as eye-witnesses to
the commission of the offence and if he is of opinion that it is necessary to take the evidence of any other
witnesses, he may do so. Rejecting this argument, the Supreme Court held that the use of the word shall
impose a duty on the Magistrate but that duty is limited to the witnesses produced by the prosecution as is
apparent from the language of the section. Witnesses produced and witness cited are two different things and
should not be confused with each other. The use of the words if any in the section all the more emphasises
the fact that the prosecution is at liberty not to produce any eye-witnesses in which case the Magistrate is
under no duty to examine any witness.
In Manmohan Das v. Bishun Das, the appellant landlord sued the respondent tenant for eviction under
Section 3(1)(e) U.P. (Temporary) Control of Rent and Eviction Act, 1947 on the ground that the tenant had,
without the landlord’s permission, made or permitted to be made such construction as in the opinion of the
court, has materially altered the accommodation “or” is likely substantially to diminish its value. The
question was whether the word “or” should be interpreted as “and” so that it is obligatory on the part of the
landlord to prove that the value of the property was likely to diminish substantially because of the alterations
made in the property without the consent of the landlord. The Supreme Court held that the intention of the
legislature had been clearly expressed in the language used by the legislature and there was no cause to
interpret “or” and “as” as contended.

Q5. Explain the Doctrine of Colourable Legislation.

Ans. Separation of powers means dividing or sharing of powers. In order to prevent the misuse of power by
anyone organ of the government, the Constitution says that each of these organs should exercise different
powers. This develops a system of checks and balances. The Constitution has divided powers between the
Centre and the States with their particular subject matters. But sometimes, the legislative body enacts
legislation which falls outside its area of competence. This means that it has transgressed its powers and has
indirectly done something which could not have been done directly. This is called colourable exercise of
legislative power or indirectly making laws when prohibited from doing so directly. So, to check the
transgression of legislative authorities, the doctrine of colourable legislation came into existence.
DIVISION OF LEGISLATIVE POWER BETWEEN THE CENTRE AND STATES
Article 246 of the Indian Constitution is about subject matter legislation referring to who has power with
regards to which subject matter to make laws. The powers that Centre and States have been categorized by
the 7th schedule under 3 lists – Union list (List-I), State list (List-II), Concurrent list (List-III) which is
mentioned under Article 246 of the Constitution. The Union list incorporates areas which are of national
importance like defence, foreign affairs, currency, atomic energy and so forth. It has a total of 97 items on
which the Parliament has exclusive right to make laws. Similarly, those items are covered in State list which
are of local importance like trade, agriculture, police etc. There are a total of 61 items on which the State has
exclusive power to make laws. Another set of powers is residuary powers which include all other matters not
mentioned in any of the lists like cyber laws. The States and Union are both required to operate within their
respective legislative competence.
If the legislature makes law in colour or under guise on a subject without having required competency to
make laws on that particular subject then the Supreme Court can invalidate the entire law. Colourable
legislation comes into question when there is a question of competency of a particular legislation to enact a
particular law. It challenges the accuracy of an enacted law with regards to the body that passed the law and
analyses whether the legislative body has the power to make laws on that subject or not. In case the
legislature is not competent on the said subject, then the law is said to be ultra vires. When a legislature
makes a law which appears to be within its authority but in reality, it is not, then the law would not have any
validity. Even though a colour is given to the law for bringing it under competency it would be declared as
void. Colourable legislation emerges whenever the legislative bodies had no power to create laws on an item
because either it was not included in the list as per Schedule 7 or for the limitations of Part III of the
Constitution or any other provision of the Constitution. When the legislature indirectly disobeys the terms of
the Constitution and claims any Act to be within its power then it is a fraud on the Constitution.
CONCERNS AND LIMITATIONS ON THE APPLICATION OF THE DOCTRINE OF COLOURABLE
LEGISLATION
The doctrine does not apply to subordinate legislation. It is based only on the question of competency of a
particular legislative body to enact a particular law. The presumption is always in favour of the
constitutionality of the law and the burden is on the person who wants to show that there has been a clear
violation of constitutional principles. Whoever is taking any new law to the court and claiming that to be a
colourable legislation, he has to prove how the law is a colourable legislation.
It has no application where there is no constitutional limitation and where powers of a legislature are not
bound by any limitation. For example, there will be no application of colourable legislation is such power
works only according to the Constitution. The legislation is not actionable for extraneous consideration. The
doctrine is not related to bona fide or mala fide intention of the legislature. It only sees whether the enacted
law is under the competency of the legislature or not.
It is not concerned about whether the law is relevant or irrelevant. If there is an absence of competency, then
the relevance of motive is dead. Thus, the constitutionality of the statute is completely a question of
legislative competency.
CASE LAWS
  In the case of Ram Krishna Dalmia v. S.R. Tendolkar, the petitioner has challenged Section 3 of
Commission of Enquiry Act, 1952 and the notification under which an enquiry commission was set
up by the Central Government under S.R. Tendolkar was on the ground that it was a denial of
equality. Inquiry commission was appointed under the Act against the company of the petitioner. But
Supreme Court held that the notification and the Act were valid as they were only for enquiry and do
not impose dictatorial possession of the government and the petitioner could not show that there has
been a clear violation of constitutional principles. It is an important case of reasonable classification
under Article 14. As not only a law has to be reasonable but its application must also provide equal
protection of laws, it did not come in the ambit of colourable legislation.

 In K.C. Gajapati Narayan Deo v. State of Orissa, the constitutional validity of Orissa Agricultural
Income Tax (Amendment) Act, 1950 was challenged on the ground that it is a colourable piece of
legislation. The real object of which is to reduce the net income of intermediaries, so that the
compensation paid under the Orissa Estate Abolition Act, 1952 might be kept down to a low figure.
The court held that it would be a colourable legislation only if it is shown that the real object is not
attainable to it by reason of any constitutional limitation or that it lies within the exclusive field of
another legislature. This Act falls within the ambit of the state legislature as Agriculture is the matter
of State list and reduction of compensation is just another facet of the Act. So, it is not colourable
legislation and not invalid.

 In the case of R.S. Joshi v. Ajit Mills, the respondent was not enlisted as a dealer of Sale Tax, which
was gathered from different clients, and this adds up to infringement of Section 46 and Section 37(1)
of the Act. The question was, if any tax has been collected wrongfully by a taxable person from his
customer, then whether the amount of tax should be paid to the government or not and also whether
it will be lawful to retain the money when it is known that the amount is not a tax or not. It was held
that the Section 37(1) of the Act is valid and the law is the same for both the taxpayer and tax
administrator and if the tax cannot be levied by the law, then it is not leviable by the government as
well. If the tax is not lawful then its collection cannot be lawful. Thus, colourable legislation was
applied in this case.

CONCLUSION
Colourable legislation suggests an encroachment on the legislative power. The doctrine of colourable
legislation strictly prohibits doing indirect things when it is not allowed to do so directly. It tests whether the
legislature has enacted a law as per its authorized competency or not. So, wherever there is a restriction to
make laws, the legislature has to follow the same otherwise it would be declared as ultra vires of legislative
power. If any law is made out of any guise, then the colourable exercise would be imposed on legislative
authority.
Legislative authority is the body which legislates laws. They are elected by the people and work on behalf of
the people. The doctrine of colourable legislation acts like a check on them and if it finds incompetency then
the law becomes invalid without there arising a need to determine its necessity and requirements. It only
checks the competency of the law-making body and restricts overstretching power. As this doctrine doesn’t
check whether the law is mala-fide or bona fide and only examines the competency of its legislative
authority, it becomes an impediment to the functions of legislative authority.
Q6. Examine fully the value of intrinsic aids in the construction of statutes.
Ans. INTRINSIC OR INTERNAL AIDS: The intrinsic or internal aids in the construction of statutes are
derived from context, preamble, headings, title, marginal notes and interpretation clause.
1. CONTEXT: In interpreting a legislation which is ambiguous, the context has to be taken into account
to deal with dubiousness. Blackstone has, in his Commentary on Interpretation, observed: “If words
happen to be still dubious, we may establish their meaning from the context, with which it may be of
singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or
intricate.”

A carefully drafted statute demands the consideration of every word of the contemplated enactment
in its relation to the accompanying language, and the words and phrases occurring in the statute are
not to be detached or dissociated from the context. The context, as observed by Lord Simonds in
Attorney General v. Prince Augustus, includes not only other enacting provisions of the same statute,
but its preamble, the existing state of the law, other statutes in pari materia and the mischief which
the statute discerned from those and other legitimate means, was intended to remedy.

2. PREAMBLE TO AN ACT: The preamble of a statute is a prefatory statement at its beginning,

following the title and preceding the enacting clause, explaining or declaring the policy and purpose,
the reasons and motives for, and the objects sought to be accomplished by the enactment of the
statute. The preamble is that part of a statute which contains the recital showing the reason for the
Act. The preamble of a statute is ‘a key to the understanding of it’ and it may legitimately be
consulted to solve an ambiguity which may have more than one, or to keep the effect of the statute
within its real scope, wherever the enacting part is in any of these respects open to doubt.

It is accepted proposition that the preamble to a statute may be looked on as a key to its interpretation
– a key which often comes in handy. It is a good means of finding out its meaning and as it were a
key to the understanding of it. It can be used to know the aims and objects of the legislation. But the
preamble to every Act does not always serve a useful purpose or afford any such guide. In
appreciating the preamble the Act has to be studied as a whole. The preamble cannot either restrict or
extend the enacting part when the language and the object and scope of the Act are not open to
doubt. Reference can be made to the preamble of an Act if without it is not possible to determine the
precise scope of the various sections contained in the Act.

3. GENERAL HEADING: Where the language of the section of 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 words 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. To control the plain meaning of the words of the
enactment though they may, in some cases, be looked at in the light of preamble if there is any
ambiguity in the meaning of the sections on which they can throw light.
The headings 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 the words of the section, the headings
mainly help the court to resolve that doubt.

4. TITLE: Strictly speaking a title is not a part of an enactment. It cannot legitimately be used to restrict
the plain terms of an enactment. All the same, titles have often afforded additional evidence of
support of a theory of interpretation. In some cases the title may supply key to the meaning. With the
exception of private and local laws, titles do not play any significant part in the interpretative process
and may not be looked at to modify the interpretation of plain language. The title does not even
receive the same attention of the legislators as does the main body of the Act, and therefore it may
not disclose the legislative intent with exactitude. In private and local laws, however, the title is of
greater value as an aid in constructions, as a result of the constitutional requirement that the subject
of such laws must find expression in the titles.
5. MARGINAL NOTES: The Privy Council has ruled that the marginal notes to the sections of an
enactment cannot be referred to for the purpose of construing the Act. There is no justification for
restricting the contents of a section by its marginal notes. They are not part of the Act. A marginal
note is merely an abstract of the clause intended to catch the eye. Although a marginal note cannot
control the clear language of the section, or override the provisions of the enactment, the Court can
consider it for the purpose of arriving at a conclusion as to what according to the Legislature was the
purpose of enacting the section. The marginal note cannot, however, affect the construction of the
language used in the body of the section if it is otherwise clear and unambiguous.

Marginal notes to the sections of a statute and the title of its chapter cannot take away the effect of
the provisions contained in the Act so as to render those provisions legislatively incompetent, if they
are principally have regard to the object of an Act in order to find out whether the exercise of the
legislative power is purposive, unless, of course, the provisions of the Act show that the avowed or
intended object is a mere pretence for covering a veiled transgression committed by the legislature
upon its own powers. Whether a particular object can be successfully achieved by an Act, is largely a
matter of legislative policy.

6. PROVISO: A proviso merely carves out something from the section itself; a proviso never destroys
the section as a whole. The proper function of a proviso is that it qualifies the generality of the main
enactment by providing an exception and taking out, as it were, from the main enactment a portion
which, but for the proviso, would fall within the main enactment.

In construing a section full and natural meaning should be given to a proviso, if any. The proper
function of a proviso is to except and deal with a case which would otherwise fall within the general
language of the main enactment and its effect is confined to that case. The section must be construed
as a whole, each portion throwing light on the rest. The proper canon of construing a section which
has several proviso is to read the section and the proviso as a whole, try and reconcile them and give
a meaning to the whole of the section along with the proviso which is a comprehensive and logical
meaning. The function of a proviso is to take out of a section a part of the category to which the
section applies.

7. INTERPRETATION CLAUSE: The legislature can lay down legal definitions of its own language. If
such definition is embodied in the statute itself, it becomes binding on the Courts. When the Act
itself provides a dictionary for the words used, the court must look into that dictionary first for an
interpretation of the words used in the statute. One difficulty that may be experienced is that the
definitive language of the legislature may itself require definition. Lord Denman observed: “We
cannot refrain from expressing a serious doubt whether interpretation clauses of so extensive a range
will not rather embarrass the courts in their decision than afford the assistance which they
contemplate. For the principles on which they are themselves to be interpreted may become matter of
controversy; and the application of them to particular cases may give rise to endless doubts.

8. CONJUNCTIVE AND DISJUNCTIVE WORDS: It has been held that the word ‘and’ used in a statute
may be read ‘or’ and vice versa, if such alteration is necessary to give effect to the intention of the
legislature. In criminal or penal legislation, however, conjunctive words should never be construed as
disjunctive and vice versa, if the effect would aggravate the offence or increase the punishment. It
has to be assumed that the legislature has chosen the correct words to express its purpose. Hence, the
literal meaning of the expressions should be accepted, unless the context points to some other
interpretation.

9. GENDER: Words importing the masculine gender should be deemed to include females too.
10. PUNCTUATION MARKS: Punctuation marks cannot control, vary or modify the plain and simple
meaning of the language of the statute. At the most they can aid in the construction of ambiguous
statutes. Such assistance is also subject to the condition that the punctuation marks have been
inserted with accuracy and they were present at their places at the time of enactment.

Punctuation of a law, generally speaking, does not control or affect the intention of the legislature in
its enactment. The intention is generally gathered from the context to which the words relate. Even
where punctuations sometimes lend assistance in the construction of sentences, they are always
subordinate to the requirement of the context.

11. REFERENCE TO EXPRESSIONS USED IN ANOTHER ACT : It is somewhat dangerous to approach

a particular statute and try to understand its meaning with any preconceived notion as to the meaning
of certain expressions used in another statute. The two statutes may differ entirely in their purpose
and context as statutes almost invariably do.

12. PRECEDENT: Cases on the construction of one statute are merely of value in construing another
statute, for each case turns on the language with which it is concerned and statutes are not often
expressed in the same language.

13. EXPLANATION: An explanation is sometimes added to a section to elucidate what is enacted and
not to add or subtract from it. It is a part and parcel of the enactment. An explanation should be read
with a view to harmonize and clear up the ambiguity in the main provisions of the section. Where
two interpretations are sought to be put upon a provision that which fits the description which the
legislature has chosen to apply to it, according to sound canons of construction, to be adopted,
provided it is consistent with the language employed, in preference to the one which attributes to the
provision a different effect from what it should have according to its description by the legislature.

14. SCHEDULES: Schedules form part of the statute. They are catalogued towards the end and contain
minute details for working out the provisions of the Act. The expressions in the schedule cannot
override the provisions of the express enactment. Where the enacting part and the schedule cannot be
made to correspond, the latter must yield to the former.

15. USE OF ILLUSTRATIONS IN ENACTMENTS : Illustrations in enactments provided by the

legislature are valuable aids in understanding the real scope of the text thereof. They are part of the
statute. The illustrations, however, make nothing law, which would not be law without them. They
only exhibit the law in full action. An illustration does not exhaust full content of the section which it
illustrates and equally it can neither curtail nor expand its ambit.

16. MEANING OF WORDS: The words connoting more than one idea when employed in a statutory
instrument are intended to be construed in connection with, and their meaning is ascertained by
reference to, the words and phrases with which they are associated. When two or more such words
are grouped together, they are, in the absence of a clear and definite indication to the contrary,
presumed to have been intended to be construed consistently and understood in the same general
sense. This is really another aspect of the rule that words are to be construed in the light and
background of the entire statutory instrument, its subject-matter and legislative intent though
operating in a narrower sphere. This could not be understood to be a fixed rule of construction of
universal application. It is merely a guide to the legislative intent affording a suggestion to the
judicial mind that the legislative intent affording a suggestion to the judicial mind that the legislature
was thinking of a particular class of objects by grouping together certain words which were intended
not to embrace other object.
17. INCLUDE: The word include is generally used in interpretation clauses in order to enlarge the
meaning of words or phrases occurring in the body of the statute; and when it is used those words or
phrases must be construed as comprehending, not only such things as they signify according to their
natural import, but also those things which the interpretation clause declares that they shall include.

18. ENABLING AND DISABLING STATUTES: Enabling statutes amplify the scope of the common law
where it is too much restricted or limited. Disabling statutes do just the opposite, i.e. they confine or
delimit the common law. A statute which legalizes some act which under the common law would be
illegal to perform is called an enabling Act.

19. NON-OBSTANTE CLAUSE: The expression “non-obstante” means “notwithstanding”. Sometimes a

section commences with the clause stating that “notwithstanding anything contained in this Act or
any law for the time being in force”. And, in case of conflict, the idea is to give the enacting or
operative part of the section an overriding effect over the provisions of the Act found in the non-
obstante clause. The enacting part of a statute must, where it is clear, be taken to control the non
obstante clause where both cannot be read harmoniously.

20. STATUTE TO BE READ AS A WHOLE : All parts of a statute must be construed together so as to
avoid inconsistencies and conflicts between various provisions contained in it.

To ascertain the meaning of a section it is not permissible to omit any part of it, the whole section
should be read together and an attempt should be made to reconcile both parts.

21. SUB-SECTIONS MUST BE CONSTRUED AS PARTS OF AN INTEGRAL WHOLE : The words used
in a section must be given their plan grammatical meaning. Where the court is dealing with two sub-
sections of a section, it is necessary that the two sub-sections must be construed as a whole “each
portion throwing light, if need be, on the rest.” The two sub-sections must be read as parts of an
integral whole and as being inter-dependent; an attempt should be made in construing them to
reconcile them, if it is reasonably possible to do so, to avoid repugnancy. If repugnancy cannot
possibly be avoided, then a question may arise as to which of the two should prevail. But that
question can arise only if repugnancy cannot be avoided.

22. EXTRANEOUS AID: It is no doubt true that as a general principle of interpretation, where the words
of the statute are plain, precise and unambiguous, the intention of the legislature is to be gathered
from the language of the statute itself and no external aid is admissible to construe those words. It is
only where the language is ambiguous, uncertain, cloudy or susceptible of more than one meaning or
shades of meaning, that the external evidence as to the evils, if any, which the statute was intended to
remedy or the circumstances which led to the passing of the statute may be looked into for the
purpose of ascertaining the object which the legislature had in view in using the words in question.

23. MODIFICATION OF THE LANGUAGE TO MEET THE INTENTION : While we agree that the
literacy construction may be the general rule in construing taxing enactment, it does not mean that it
should be adopted even if it leads to discriminatory or incongruous result. Interpretation of statutes
cannot be a mechanical exercise. Object of all the rules of interpretation is to give effect to the object
of the enactment having regard to the language used. We may refer to the well-recognized rule of
interpretation of statutes that where a literal interpretation leads to absurd or unintended result, the
language of the statute can be, modified to accord with the intention of parliament and to avoid
absurdity.
Q7. Discuss the doctrine of eclipse.
Ans. 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 this Constitution, in so far 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 Behram Khurshed Pesikaka v. State of Bombay, the petitioner who was prosecuted under the Bombay
Prohibition Act, 1949, a pre-Constitution Act, contended that he had merely consumed medicine containing
alcohol. Two questions were involved: first, whether the petitioner had the burden to move the fact; and
secondly, what was the legal effect of the decision of the Supreme Court in the Balsara case discussed above
wherein Section 13(b) of the Act was held to be violative of Article 19(1). The second question is quite
tricky to answer. One view could be that when part of a section is held invalid by the court that does not
mean repeal or amendment of the section or addition of a provision or exception to it because repeal or
amendment in a function of the legislature which is out of bounds for the court. Another view could be that
with the declaration of unconstitutionality of the section or a part of it would render the Act void ab initio. A
third view could be that declaration of unconstitutionality could be no two grounds; absence of law making
power all together, that is to say, legislative incompetence, and violation of constitutional limitations on
legislative power. In the first case the law enacted would be a nullity, while in the second case, it would
merely be unenforceable. The question remained unanswered and the Supreme Court simply decided that
fundamental rights could not be waived as they were matters or policy and not for individual benefit.
In M.P.V. Sundararamier v. State of Andhra Pradesh, the President, while exercising his powers under
Article 372(2) adapted the sales tax laws of several States and enacted a section the language of which was
the same as the explanation of Article 286(1)(a). The petitioner challenged the validity of the demand of the
State arguing that the sales could not be taxed in view of Article 286(2). During the pendency of the case the
four to three majority decision of the Supreme Court in Bengal Immunity Company Limited v. State of
Bombay and held that till the Parliament lifted the ban against such tax sales were not taxable in view of
Article 286(2). The Supreme Court, without going into the question as to what difference would it make if
the impugned provision was unconstitutional in its entirety or not, held that were an enactment is
unconstitutional in part but valid as to the rest, assuming of course that the two parts are severable, it cannot
be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of
enforcement of the valid portion thereof, and being on the statute book, even that portion which is
unenforceable on the ground that it is the unconstitutional will operate proprio vigore when unconstitutional
bar is removed, and there is no need for a fresh legislation.
In Keshavan Madhava Menon v. State of Bombay, the questions were as to whether a prosecution
commenced under section 18, 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
could be continued even after the presence of Article 13(2). The Supreme Court, by majority, held that the
prosecution would continue because the Constitution could not be given a retrospective operation in the
absence of an express or necessarily implied provision to that effect not was there anything to that effect in
Article 13(1) of the Constitution.
In Saghir Ahmad v. State of Uttar Pradesh, the constitutionality of the Uttar Pradesh Road Transport Act,
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 an unconstitutional law is a dead law incapable of being vitalised by a
constitutional amendment removing the fetters, and that the only course open is its re-enactment.
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 preparation which was violative or Article 19(1)(f) of the Constitution.