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Notes For Interpretation of Statutes PDF
Notes For Interpretation of Statutes PDF
1 Codifying statutes
Codifying Acts are passed to codify the existing law. It is one which purports to
state exhaustively the whole of the law upon a particular subject including pre-
existing and common laws.
The purpose of codifying statute is to present an orderly and authoritative
statement of the leading rule of law on a given subject.
Ex: Code of Civil Procedure, 1908
Codification systematizes case-law as well as statutes
The codifying Act is presumed not to alter the law unless a contrary intention
appears.
Lord Herschell observed that the principles applicable for construction of
codifying statutes are two:
a Firstly, the language of the statute should be examined; and
b Secondly, natural meaning of the statute should be lo
c oked for without getting influenced by any considerations as to previous state of
law.
The law should be ascertained by interpreting the language used, instead of, as
before, by roaming over a vast number of authorities in order to discover what
the law was, an appeal to earlier decisions can only be justified on some special
ground.(Bank of England v. Vagliano Brothers, 1891 AC).
Acc. To Crawford – “The object of a revision or codification…. Is to clarify
existing statute law and make it easily found. Consequently it is really more
than a mere restatement. A re examination of the exiting statute law is
necessarily implied. But the restatement may be in the original language of the
statute. Or words and phrases may be altered, new matter incorporated, and
statutes even omitted from the revision or codification. And after the revision or
codification has been adopted, it becomes the reservoir of all the statute law on
the subjects indicated by various titles; the revision being a substitute for the
displacing the former law. As a result, any errors must be corrected by
legislative amendments after the revision or code has been enacted into law…
Not only may the statutes composing the codification be relocated but their
language may also be changed. Generally, however, the revision is simply a re-
statement of existing statute law, either in the same or in substantially the same
language. Where this is true, the old statutes are continued without any change
in their meaning, but in many instances, the language of existing statutes are
substantially altered; words may be added or omitted; phraseology and
punctuation changed. In such instances, however, there is a presumption that the
legislature did not intend to change the meaning of the statute, unless the intent
to do so is clearly apparent. Where it is the intent of the legislature to make a
change in the statutes meaning it must be given effect… a code is simply a part
of the statutory law and has no higher standing or sanctity than an ordinary
statute. Accordingly, where there is ambiguity in the revised statute, it should be
construed as expressing the law as it was prior to the revision, unless the court
finds a clear intention to alter the old law”.
Acc to Sutherland, Statutory Construction, Vol. 3, “A statute incorporated into a
code is presumed to be incorporated without change even though it is re-worded
and re-phrased and in the organization of the code its original sections are
separated. Where, however, the legislative intent is clear that a change in the
law is intended, the new provision prevails. In case of ambiguity it is
permissible to resort statute, prior legislative history of the Act, the form and
language of the prior statute, prior interpretation and all matters in pari materia
in order to arrive at the true meaning of the Code’s provision”.
2. Consolidating statutes
A consolidating statute is one which collects the statutory provisions relating to
a particular topic, and embodies them in a single Act of Parliament, making
only minor amendments and improvement.
The purpose consolidating statute is to present the whole body of statutory law
on a subject in complete form on particular branch of law. Ordinarily, no change
of law is intended in a consolidation Act.
For the object of the Act was merely to “reproduce the law as it stood before”.
For ex: The long title of the Code of Criminal Procedure, 1973 is “An Act to
consolidate and amend the law relating to Criminal Procedure”.
A consolidating statute is often not a mere compilation of earlier enactments.
The very object of consolidation is to collect the statutory law bearing upon a
particular subject, and to bring it down to date, in order that it may form a
useful Code applicable to the circumstances.
Purely consolidated statute the presumption is that-
Parliament does not intend to alter the existing law applies with particular force.
For the object of the Act was merely to ‘reproduce the law as it stood before.’
Words used in the consolidating Act bear the same meaning as that which they
had at the time the enactments consolidated were passed.
Such a statute is not intended to alter the law. Hence, it is relevant to refer to the
previous state of the law or to judicial decisions interpreting the repealed Acts
for purpose of construction of corresponding provisions in the consolidating
Act.
Difference.
a. Consolidating statutes is the combination of the statutes relating to a given
subject- matter. It does not contain the case-law.
b. consolidating statute should be interpreted according to the normal canons of
constructions and recourse to repealed enactments can be taken only to solve
any ambiguity.
c. The primary rule of construction of a consolidating statute is to examine the
language used in the statute itself without any reference to the repealed statutes.
3. Amending statutes
Any change of the scope or effect of an existing statute, whether by addition,
omission, or substitution of provisions, which does not wholly terminate its
existence, whether by an Act purporting to amend, repeal, revise, or
supplements or by an Act independent and or original in form, is treated as
amendatory.
Whole enacting an amending law, that an existing provision shall be deleted and
a new provision substituted.
a Clarification
When the legislature amends to clarify things it does not necessarily mean that
the original Act did not include and cover those things.
Amendment offers a convenient method of curing a defect in an
unconstitutional Act.
Amendments are often made to clear up ambiguities and such amendments
which are intended to prevent misinterpretation do not in themselves alter the
law in any way.
b Settling conflict of decisions
To end as far as possible the conflict of old decisions.
c Repealing obsolete enactment
To repeal enactments which have ceased to be in force or have become obsolete.
d Effect of Amendment on Parent Statute
The amendment will be given a reasonable construction: a literal construction
which would lead to absurd consequences will be avoided.
When the intention of the legislature is not clear from its language, the court
will consider surrounding circumstances such as title, legislative proceeding and
report of the committee.
Amendment not to incorporate something inconsistent with or repugnant to
object of Act.
A change in the law of procedure operates retrospectively and unlike the law
relating to vested right, is not only prospective.
The promulgation of an amending Act cannot without any express term take
away from a party any right which might be vested in him under a prior Act.
2. DELEGATED LEGISLATION-I
Pressure upon the Parliament - Even if in continuous session, the Parliament can
not give the quantity & quality laws required
Technicality - Subject matter of legislation may be technical & require
consultation with experts
Flexibility & experimentation - Cannot foresee all contingencies - Power is
given to executive to meet unforeseen contingencies - Rapid amendment
Emergency - Quick action is required
Confidential matters - If public interest demands the nondisclosure until coming
into operation - Ex: imposition of restriction on private ownership
Direct participation in the structuring of law
Though useful & inevitable, cannot be more - Administration may take away
the right - Norm of jurisprudence of delegation must be followed
I Forms of Delegated Legislation
Rule: Sec.3 (51) of the General Clause Act, 1891, contains a definition of ‘Rule’
in the following words “rule shall mean a rule made in exercise of a power
conferred by any enactment and shall include a regulation made under any
enactment’.
‘Circulars’ or instructions which have been issued under the Act will have force
of law.
Notification issued for the purpose of brining into operation the enabling Act or
to grant exemptions from its provisions or to extend its operation to new
persons or objects.
Bye laws are conferred on local authorities and statutory or other undertakers
‘for regulating the conduct of persons within their areas or resorting to their
undertaking’. And the bye-laws are generally subordinated to the rules and
regulations, if any to be made under the enabling Act.
II Constitutional Limits of Legislative Delegation
The legislature cannot delegate essential legislative functions which consist in
the determination or choosing of the legislative policy and of formally enacting
that policy into a binding rule of conduct.
The legislature cannot delegate “uncanalised and uncontrolled power.
Only delegation of ancillary or subordinate legislative functions.
It is the duty of the court to strike down without hesitation any arbitrary power
conferred on the executive by the legislature.
It is settled that the legislature, except when authorized by the constitution,
cannot create a parallel legislature or abdicate its functions in favour of some
outside authority.
Legislature cannot delegate its power to repeal a law or even to modify it in
essential feature.
The delegated legislation must be consistent with the Parent Act and must not
violate legislative policy and guidelines.
Sub-delegation of legislative powers in order to be valid must be expressly
authorized by the parent act.
If the parents Act is repealed, notification issued under it would also stand
repealed unless saved by the repealing act.
In re, Art. 143, Constitution of India
Is said to be the bible of delegated legislation. Seven Bench Judge heard the
case and produced seven separate judgment.
Sec. 2 of Part C States Laws Act, 1950, which confers authority on the Central
Government to extend to Part C States laws in force in other states.
The analysis of Sec.2 and decision is as follows:
Power is conferred to extend not only existing but also future laws. This has
been upheld.
Parliament has conferred the authority on the Central Government not only to
extend laws enacted by it but also laws enacted by State Legislatures which
have no legislative jurisdiction in Part C States. This has also been upheld.
Power is conferred to extend these laws “with such restrictions or
modifications’ as the Central Government may think fit.
Power to repeal is considered to be a essential legislative functions.
Sec. 2 of the UP Zamindari Abolition and Land Reforms Act, 1951, confers
power on the state government to extend the act to other areas in the state to
which it was not initially applied.
Held: “It is well settled that the legislature may leave it to the executive to apply
the provisions of an Act to different times on various consideration”
3. DELEGATED LEGISLATION-II
4. DELEGATED LEGISLATION-III
Promulgation of Rules to nullify/not comply with court orders is not permissible. Though
Government has the prerogative to frame service rules in one way or the other, subject to
judicial review on settled principles, it is impermissible to exercise rule-making power in
such a way as to nullify/not comply with court orders, and the latter also amounts to contempt
of court. Hence, costs of Rs. 50, 000 imposed upon Govt. of Bihar for non-compliance with
Supreme Court order in Bihar State Govt. Secondary School Teachers Assn. v. Bihar
Education Service Assn., (2012) 13 SCC 33, whereby respondents refused to grant all
admissible benefits of merger of cadres as directed by Court. [Bihar State Govt. Secondary
School Teachers Assn. v. Ashok Kumar Sinha]
[(2014) 7 SCC 416]”
5. DELEGATED LEGISLATION-IV
V Procedural control
Allowing the specific audit of the rules by those for whose consumption they
are made
a Drafting
By an expert draftsman, who is aware of its intra vires nature - The rules in
Australia are either drafted or checked by parliamentary draftsmen - India
suffers from poorly drafted rules
b Antenatal publicity
No separate law in India - In some cases the parent acts have provided - Ex:
Central Tea Board Act, 1949, Charted Accountants Act, 1912 etc.
Section. 23 of the General Clauses Act, 1897: Previous Publication
There is no uniform procedure in India for making subordinate legislation,
except in the case of rules or bye-laws made under those Central Acts or
Regulations which impose the condition of ‘previous publication’ which brings
into play the procedure prescribed in section 23.
Rules to be published in draft in the Gazette
Objections & suggestions to be invited
Objections & suggestions to be considered
There is no general principle that previous publication of subordinate legislation
is necessary; it is necessary only when the statute so requires. Further, the
requirements of previous publication does not give any right to the objectors of
being orally heard.
Wide-spread use in USA - Administrative Procedure Act, 1946
d Postnatal publicity
Fundamental principle of law is that “ignorance of law is no excuse”(Ignorantia
juris non excusat).
Public must have access to the law and they should be given an opportunity to
know the law.
Publicity is necessary - Must be accessible to public
Jain & Jain - “It is essential that adequate means are adopted to publicize the
rules so that people are not caught on the wrong foot in ignorance of rules
applicable to them in a given situation”
England:
Rule of Publication Act, 1893 which required publication of statutory rules and
orders.
Statutory Instrument Act, 1946, provides that the rules shall not come into force
unless published.
USA:
Before 1935 there existed no machinery for publication of delegated legislation.
Federal Registration Act, 1935
The Act establishes a Federal Register and provides for publication of all
federal rules, regulations, orders, and other documents of general applicability
and legal effect. Unless it is so published it cannot be enforced against any
person.
Administrative Procedure Act, 1946
Sec. 4 (c) defers effectively of the rules by 30 days from the date of
publication so that everyone gets an opportunity of knowing them, unless the
agency decides otherwise in public interest.
After publication of rules in the Federal Register, the rules are classified,
indexed and codified under the provisions of sec. 311(a) of the Federal Register
Act.
India
No general law in India unlike England and America- Differs from statute to
statute - Official Gazette / Free choice of the authority - Stipulated mode must
be followed.
Section 23, General Clauses Act, 1897 provides conclusive evidence clause that
publication in the Official Gazette of the rules or bye law has been duly made.
State of Maharashtra v. M. H. George AIR 1965 SC 722
Guidelines regarding the mode of publication;
i Mandatory statutory requirement regarding the mode must be followed
ii Where there is no statutory requirement - Published in the usual form
iiiIn India, publication in the Official Gazette is the ordinary method of bring a rule to the
notice of persons concerned.
State of Orissa v. Sridhar Kumar AIR 1985 SC 1411
The Orissa Municipal Act, 1950 - State govt. to publish the notification in the
Official Gazette & local newspaper to hear objections - Published in English in
a local news paper - Held not sufficient
Publication as a corollary of natural justice
Harla v. State of Rajasthan AIR 1951 SC 467
1922 - Maharaja of Jaipur died - Successor was minor - Council of Ministers
was appointed by the Crown representative - Passed Jaipur Opium Act, 1923 by
a resolution - Never published
Appellant was prosecuted for possessing excess opium - Challenged the
validity.
Court observed “Unlike Parliamentary legislation which is publicly made,
delegated legislation or subordinate legislation is often made unobtrusively in
the chambers of a minister, a secretary to the governor or other official
dignitary. It is, therefore, necessary that subordinate legislations, in order to take
effect, must be published in some suitable manner, whether such publication is
prescribed by the parent statute or not”.
Held: The rules of natural justice demand the publication before enforcement. It
must be broadcast in some recognizable way so that all men may know what it
is, or, at the very least there must be some special rule or regulation or
customary channel by or through which such knowledge can be acquired with
the exercise of due and reasonable diligence.
Generally comes into force on the date of publication.
B.K Srinivasan v. State of Karnataka, AIR 1987 SC
Where the statute itself required the publication of the delegated legislation
and where the finding was that there was publication as required by the
statute, the Supreme Court made some general observation which support the
view that publication in some suitable form, even if not specifically required
by the statute, is essential for making the delegated legislation effective.
The Principles enunciated In Harla’s case and Shrinivasan’s case which is
still the law, requires some form of publication before delegated legislation
can be effective. But that principle also does not require communication of
any general rule, regulation etc. to each and every individual affected
thereby,, and it would be sufficient if the same is published in such manner
that person can, if they are interested, acquaint themselves of its contents.
If a question arises as to when was a particular order or rule was made or
notification issued, the material date is the date of Gazette publication as
required by the statute and not the date of publication in a newspaper or the
media.
Defect in publication
Govindlal v. Agricultural Produce Market Committee, AIR 1962 SC.
The draft notification was required under the Parent Act to be published in
official Gazette as well as in Gujrati in a newspaper having circulation in the
area concerned.
The notification was issued in the Official Gazette but it was not
published in Gujrati.
Held: Requirement of publication in Gujarati was mandatory and notification
was invalid.
VI Sub-Delegation
When a statute confers legislative powers on an administrative authority and
that authority further delegate those powers to another subordinate authority or
agency, it is called sub-delegation.
Delegate on whom power to make subordinate legislation is conferred cannot
further delegate that power.
Judicial or quasi-judicial power conferred by a statute cannot be delegated
except when specifically permitted.
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.
6. DICTIONARY
4. Dictionaries
When a word is not defined in the act itself, it is permissible to refer to
dictionaries to find out the general sense in which that word is understood in
dictionary.
It is elementary that the meaning of a staute must, in the first instance, be sought
in the language in which the act is framed, and if that is plain, and if the law is
within the constitutional authority of the lawmaking body which passed it, the
sole function of the courts is to enforce it according to its terms….where the
language is plain and admits of no more than one meaning, the duty of
interpretation does not arise, and the rules which are to aid doubtful meanings
need no discussion. (Camminetti v. United States, 242 U.S)
In selecting one out of the various meanings of a word, regard must always be
had to the context of the Act. When context makes the meaning of the word
clear, other dictionary meaning become irrelevant.
The view of Krishna Aiyar, J: “Dictionaries are not dictators of statutory
construction where the benignant mood of a law, more emphatically, the
definition clause furnishes a different denotation.”
If diverse meanings of words are given in a dictionary, then court should always
keep in mind the context in which a word has been used in choosing the correct
meaning of the word.
In the words of Jeevan Reddy, J: ‘A statute cannot always be construed with the
dictionary in one hand and the statute in the other. Regard must also be had to
the scheme, context and to the legislative history’.
If the Act does not define a word, the legislature must be taken to have used that
word in its ordinary dictionary meaning.
When the context makes the meaning of word quite clear, it becomes
unnecessary to search for and select a particular meaning out of the diverse
meaning a word is capable of.
A statute is not to be interpreted merely from a ‘lexicographer’s angle’; in built
policy of the legislature as discernible from the object and scheme of the Act
must be given effect to.
Kanwar Singh v. Delhi Administration, AIR 1965 SC.
While construing Section 418(i) of the Delhi Municipal Corporation Act, 1959
observed:
It is the duty of the court in construing a statute to give effect to the
intention of the legislature. If, therefore, giving a literal meaning to a word used
by the draftsman, particularly in a penal statute, would defeat the object of the
legislature, which is to suppress a mischief, the court can depart from the
dictionary meaning or even the popular meaning of the word and instead give it
a meaning which will advance the remedy and suppress the mischief.
Employees State Insurance Corporation v. Tata Electric and Locomotive
Company, AIR 1976 SC
Whether apprentice is employee under Employees State Insurance Act,
1948 - apprentice means person who is undergoing apprenticeship training in
designated trade in pursuance of contract of apprenticeship - held, apprentice is
not an employee.
The question was whether the respondents were bound to contribute monetarily
under the Employees State Insurance Act, 1948 in respect of apprentices of the
company.
The dictionary meaning of the word apprentice shows that impart some kind of
training by the company to the apprenticeship under mutually agreed terms and
conditions.
Held: Even if the apprentice is paid some money by the company, this does not
make him an employee of the company.
Pradeep Agarbatti, Ludhiana v. State of Punjab and Ors, (1997)8 SCC 511
The Court held that upon application of the doctrine it can be inferred that when
words are grouped together, each word in the entry draws colour from the other
words therein.
As a result the court concluded that Entry 16 of the Punjab General Sales Tax
Act, 1948 could not be read to tax agarbatti, dhoop as taxable items were to be
read in context of ‘perfumery’ i.e. something which can be used on the human
body.
8. EJUSDEM GENERIS
M/S Siddeshwari Cotton Mills Pvt. Ltd. V. Union of India, AIR 1989 SC.
The Supreme Court observed that the expressions ‘bleaching, mercerizing,
dyeing, printing, water proofing, rubberizing, shrink-proofing, organdie
processing, which precede the expression’ or any other processes’ in section 2(f)
(v) of the Centre Excises and Salt Act, 1944 all envisage processes which
import a change of lasting character to the fabric.
The term ‘any other process’ must share one of these incidents, thus the
principle of ejusdem generis was used for interpreting the context of the general
words in context of the enumerated words which followed.
The rule of interpretation generally known as ejusdem generis rule reflects an
attempt to reconcile incompatibility between the specific and general words, in
view of the rules of interpretation, that all words in a statute are given effect if
possible, statute should be construed as a whole and no words in a statute are
presumed to be superfluous.
In construing the definition of ‘workmen’ in the Industrial Courts Act, 1919,
which reads: ‘means any person who entered into or works under a contract
with an employer whether the contract be by way of manual labour, clerical
work or otherwise’
Viscount Simon, L.C. said: ‘the use of words or otherwise does not bring into
play the ejusdem generis principle for manual labour and clerical work’ do not
belong to a single limited genus.( N.A. L.G. O V.Bolton Corporation, 1943 AC)
Ejusdem Generis: when not to invoke
The doctrine ejusdem generis must be applied with care and caution. It said that
the rule of ejusdem generis should not be invoked when:
a. Where the intention of the legislature is clear;
b. Where it would result in disregarding the plain language of the statute;
c. Where mention of a single species does not constitute a genus.
d. Where a perusal of the statute as a whole indicates that the legislature intended
the general words to go beyond the class specially designated;
e. Where the specific things enumerated have no common characteristic and differ
greatly from one another;
f. If the preceding words do not constitute mere specifications of a genus but
constitute description of a complete genus, the rule has no application.
g. Where the particular and specific words exhaust the whole genus.
The Supreme Court- Bhagwati, J. stated the principle as follows: “In construing
fiscal statutes and in determining the liability of a subject to tax one must have
regard to the strict letter of law. If the revenue satisfies the court that the case
falls strictly within the provisions of the law, the subject can be taxed. If, on the
other hand, the case is not covered within the four corners of the provisions of
the taxing statute, no tax can be imposed by inference or by analogy or by
trying to probe into the intentions of the legislature and by considering what
was the substance of the matter”.
In interpreting a taxing statute, equitable consideration are entirely out of place.
Nor can taxing statute be interpreted on any presumptions or assumptions.
Before taxing any person it must be shown that he falls within the ambit of the
charging section by clear words used in the section.
If the words used are ambiguous and reasonably open to two interpretations
benefit of interpretation is given to the subject.
It is well settled that in the field of taxation, hardship or equity has no role to
play in determining eligibility to tax and it is for the legislature to determine the
same.
In a taxing provision if there are two possible constructions of the words of the
statute then effect is to be given to the one that favours the citizen and not the
one that imposes a burden on him.
Taxation only by express words: The rule is that the intention to impose a taxing
statute must be shown by clear and unambiguous language
II. Literal construction of words used: it is well settled that words in a taxing
statute should be construed in the same way in which they are understood in
ordinary parlance in the area in which the law is in force. The question whether
wider or narrower meaning should be given, if words are capable of both,
depends upon the context and background.
It is no doubt true that in construing fiscal statutes and in determining the
liability of a subject to tax one must have regard to the strict letter of the law
and not merely to the spirit of the state or the substance of the law.
In Associated Cements Co Ltd v. State of MP, AIR 2004 SC
Question was whether the production of ‘refractory cement’ was liable to
imposition of export tax.
The main issue was whether refractory cement fell within the Entry “all types of
cement’ was liable to export tax.
Expatiating on the question, the court pointed out that cement was exclusively
used as a building material and as a commodity of everyday use, whereas the
main property of ‘refractory cement’ was that it could withstand very high
temperatures, corrosion and abrasion. Anyone buying cement for building
would under no circumstances buy refractory cement. As the word ‘cement’ had
not been defined, it had to be understood as used in common parlance. Hence,
refractory cement was held to not be liable to the imposition of export tax.
The Supreme Court had to interpret Uttar Pradesh Bhoodan Yagna Act, 1953, to
implement the Bhoodan movement, which aimed at distribution of land to
landless labourers who were versed in agriculture and who had no other means
of subsistence, Section 14 which employed the word “landless labour”. The
court in paragraph 12 of its judgment referred to a vedic shoka to throw light on
the term under question. By making a reference to a Hindu Text, it was able to
understand that “landless labour” was used to refer to landless agricultural
labor, who were often considered as lower castes, and were thereby refused the
right to hold property, even where they had rightful title to such lands.
Supreme Court observed that “In this country, we have a heritage of rich
literature; it is interesting to note that literature of interpretation also is very well
known. The principles of interpretation have been enunciated in various shlokas
which have been known for hundreds of years.
Held: It was held that the expression ‘landless persons’ in section 14, which
made provision for grant of land to landless persons, was limited to landless
labourers as described above and did not include a landless businessman
residing in a city.
The Mimansa rule of interpretation have by and large not been engaged with by
judges of the High Judiciary. One exception to this trend is justice Markandey
Katju, who has had reliance on these principles repeatedly, during his tenure as
Supreme Court judges. For instance in U.P. State Agro Industrial Corporation
Ltd. V. Kisan Upbhokta Parisahad and Ors AIR 2008 SC
Justice Katju observed “ it is deeply regrettable that in our courts of law,
lawyers quote Maxwell and Craines but nobody refers to the Mimansa
Principles of Interpretation. Today our so called educated people are largely
ignorant about the great intellectual achievements of our ancestors and the
intellectual treasury they have bequeathed us”.
Observation on Mimansa rule:
Judges often view the Mimansa rules of interpretation as a viable alternate and
on occasion a substitute to the traditional rule of statutory interpretation as
contained in Maxwell and Craines.
The content and purpose of the Mimansa as well as Maxwellian rules of
interpretation are substantially similar. Both systems of interpretation treat the
plain meaning of the word with the greatest importance, and only look to
external and subsidiary aids of interpretation when there is an ambiguity and
inconsistency in the plain meaning of the word employed. In this sense, there is
no conflict between or within the two systems of interpretation.
Secondly, wholly substituting the Maxwell rules with those of Mimansa would
not be prudent for a number of considerations. For a proper understanding as
well as application of the Mimansa rules, it is crucial not ony to have an in-
depth knowledge of Sanskrit but also to be aware of the dynamics of Vedic
traditions and social customs, which cannot reasonably expected of all judges.
Additionally, for an effective application of the Mimansa rules, the vedic rules,
which are often laid out in open ended and mythical ways, must be reduced in
clear and precise rules of interpretation.
Held:
The court applied the golden rule and held that the word 'marry' should be
interpreted as 'to go through a marriage ceremony'. The defendant's conviction
was upheld.
Central India Spinning, Weaving and Manufacturing Co. Ltd., Empress Mills,
Nagapur v. Municipal Committee, Wardha, AIR 1958 SC 341
Section 66(1) of the Central Provinces and Berar Municipalities Act, 1922
Which authorized imposition of ‘a terminal tax on goods or animals imported
into or exported from the limits of a municipality’
Question before the Supreme Court was whether the said clause
empowered the municipality to levy a tax on goods in transit?
High Court had adopted the derivative meaning of words import and
export, i.e., to bring in and to carry away and had therefore held that the
municipality had the power to levy terminal tax on goods in transit.
Held: Supreme Court rejected the High Court decision and pointed out that the
words import and export in their ordinary commercial sense do not refer to
goods in transit; and in selecting the commercial sense of the words in
preference to derivative sense,
Kapur, J., observed:
“The effect of the construction of ‘import’ or ‘export’ in the manner insisted
upon by the respondent (municipal committee) would make rail borne goods
passing through a railway station within the limits of a municipality liable to the
imposition of the tax on their arrival at the railway station or departure there
from or both which would not lead to inconvenience but confusion, and would
also result in inordinate delays and unbearable burden on trade both inter-state
and intra-state. It is hardly likely that was the intention of the legislature. Such
an interpretation would lead to absurdity which has according to rule of
interpretation to be avoided”
Avoiding Hardship or Inconvenience
If a literal interpretation of a statute results in hardship to one of the parties,
which was presumably not intended by the legislature, then such construction
should be given which avoids such hardship or inconvenience.
Saibaba v. Bar Council of India, AIR 2003 SC
The Supreme Court was called upon to determine the commencement of
the period of limitation for filing a review petition under the Advocate Act,
1961
The held that the expression ‘date of that order’ as occurred in S. 48AA
should be construed as date of communication or knowledge (actual or
constructive) of the order to the petitioner.
State of Punjab v. Quarer Jehan Begum, AIR 1963 SC
Property Acquisition- Sec 18 of Land Acquisition Act, 1894- respondents
were evacuees they were owner of land. Which acquired by appellant
respondents were not notified about acquisition and were not present at the time
of award no notice issued to them before acquisitions.
Respondent brought matter before collector and collector referred their
application to the civil court for determining the compensation. The civil court
came to the conclusion that application was barred by limitation.
According to Section 18 such reference would be made within 6 months from
the date of award.
Supreme Court held- holding that the application was within time, unless
an award of compensation comes to the knowledge, either actually or
constructively, how can a reference, if any, is made against the award.
Therefore, justice and fair play required that the counting of the limitation
period begins from the date of knowledge of award.
Concluding observation
Consideration of hardship, injustice or absurdity as avoiding a particular
construction is a rule which must be applied with great care.
Inconvenience necessitating a departure from the ordinary sense of the words
should not only be great but should also be an “absurd inconvenience”.
Individual caes of hardship or injustice have no bearing for rejecting the natural
construction and it is only when the natural construction leads to some general
hardship or injustice.
The laws enacted for the general advantage do result in individual hardship; For
exs: Law of Limitation, Registration, although enacted for the public benefit,
may work injustice in particular cases but that is hardly any reason to depart
from the normal rule to relieve the supposed hardship or injustice in such case.
Key aspects
The rule of harmonious construction can also be used for resolving a conflict
between a provision in the Act and a rule made under the Act.
Principle is also used to resolve a conflict between two different Acts
IV. Headings
Prefixed to a section and prefixed to a group of sections.
Acc to Maxwell ‘The headings prefixed to sections or sets of sections in some
modern statutes are regarded as preambles to those sections. They cannot
control the plain words of the statute, but they may explain ambiguous words.’
If the words of the section of an act admit of a reasonable doubt, the title or
heading of the chapter or group of sections may be looked for the interpreting
section.
The heading of a chapter may be referred to in order to determine the sense of
any doubtful expression in a section ranged under it. But it cannot control
unambiguous expression.
Chapter headings cannot be treated as rigid compartments.
Headings or sub-headings cannot control, restrict or extend this scope other
sections when the language is free from ambiguity.
V. Marginal notes
The notes found printed at the side of the sections in an act which purports to
summarize the effect of the sections.
In the older statutes marginal notes were not inserted by the legislature and
hence were not part of the statute and could not be referred to for the purpose of
construing the statute.
If they are also enacted by the legislature they can be referred to for the purpose
of construction.
In the case of the Indian Constitution, the marginal notes were enacted by the
constitutional Assembly and hence they may be referred to for interpreting the
articles of the constitution.
If the words used in the enactment are clear and unambiguous, the marginal
note cannot control the meaning, but in case of ambiguity or doubt, the marginal
note may be referred to.
N.C Dhoundial v. Union of India (2004)2 SCC579
‘It is a settled rule of interpretation that the section heading or marginal note can
be relied upon to clear any doubt or ambiguity in the interpretation of the
provision and to discern the legislative intent’
The said notes are not considered as part of the act.
Bengal Immunity Company v. State of Bihar AIR 1955 SC 661
The marginal note to Article 286 of the constitution is : Restrictions as to
imposition of tax on the sale or purchase of goods.
SC held by a majority that marginal note to Article 286 of the constitution was a
part of the constitution and therefore, it could be relied on to furnish a clue to
the purpose and meaning of that article.
Hints on Drafting
Marginal notes should be framed with great care. Their object is to give a
consicise inndication, not a summary, of the contents of the sections, and to
enable a reader to glance quickly through them relying upon their accuracy.
In SP Gupta v. Union of India AIR 1992 SC
“Whether the marginal notes would be useful to interpret the provisions and if
so what extent dpend upon the circumstances of each case. No settled principles
applicable tto all cases can be laid down in this fluctuating state of the law as to
the degree of importance to be attached to a marginal note in a state. If the
relevant provisions in the body of the state firmly point towards a construction
which would conflict with the marginal note, the marginal note has to yield. If
there is any ambigouity in the meaning of the provisions in the body of the
statutes, the marginal note may be looed into as an aid to construction.
In UK – Marginal nots can be referred to for the purpose of interpretation if
they can be regarded as inserted or asented to, by the legislature.
Where the marginal note is insert by or under the authority of the legislature, it
forms part of the Act and as such like the heading of chapter or the headings of
groups of sections can properly be regarded as giving a contemporanea
exposition of the meaning of a section, when the language of the section is
obscure or ambiguous.
If the concerned provision is amended, the marginal note would not control the
meaning of the substantive provisions so as to nullify the amendment.
VI. Definition or interpretation clause
The definition must ordinarily determine the application of the word or phrase
defined; but the definition must itself be interpreted first before it is applied.
A court should not lay down a rigid definition and crystallize the law, when the
legislature, in its wisdom has not done so.
When a word or phrase is defined as having a particular meaning in an
enactment, it is that meaning and that meaning alone which must be given to it
in interpreting a section of the act, unless there be anything repugnant in the
context.
Purpose of a definition clause in a statute is two fold:
i. To provide a key to the proper interpretation of the enactments,
ii. To shorten in the language of the enacting part of the statute to avoid repetition
of the same words contained in the definition.
Definition is not to be read in isolation, it must be read in the context of the
phrase which would define it
Definitions, Interpretation Clauses and the General Clauses Act
Definition do not take away the ordinary and natural meaning of the words
used.
The word ‘includes’ is generally used in the interpretation clause to enlarge the
meaning of words or phrases occurring in the body of the statute.
Restrictive definition
‘Means’ such and such, the definition is prima facie restrictive and exhaustive
Word defined is declared to ‘include’ such and such, the definition is exhaustive
Words is defined ‘to apply to and include’ the definition is understood as
extensive
Carter v. Bradbeer, (1975) 3 All ER
Section 201(1) of the Licensing Act, 1964
‘bar’ is defined to include a place which is exclusively or mainly used for the
sale and consumption of intoxicating liquor.
Whether counters used for serving liquor were held to be bar within the section.
House of Lord: use of the word ‘include’ showed that the definition did not
exclude what would ordinarily and in common parlance be spoken of as a bar.
Therefore, it includes aforesaid activities.
State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.
While dealing with the definition of ‘Industry’ Section 2(j) in the Industrial
Dispute Act, 1947
Gajendragadkar, J., observed: ‘It is obvious that the words used in an inclusive
definition denote extensive and cannot be treated as restrictive in any sense.
Where we are dealing with an inclusive definition, it is inappropriate to put a
restrictive interpretation upon terms of wider denotation’. Therefore, Hospital
was held to be industry.
Section 2(o) of the Consumer Protection Act, 1986
Which is an inclusive definition of ‘service’ was held to include ‘housing
construction’.
Definition in the form ‘means and include’ will consider as exhaustive
EX: Definition of tobacco in item 4 of the first schedule to the Centre Excise
and Salt Act, 1944.
It reads: ‘Tobacco means any form of tobacco whether cured or uncured and
whether manufactured or not and includes the leaf stalks and stems of the
tobacco plant’-
Construing this definition the Supreme Court held that the definition is
exhaustive and tobacco seeds, which are not mentioned in the inclusive part, do
not fall within the definition. (Mahalakshmi Oil Mills v. State of Andhra
Pradesh, AIR 1989 SC335)
A definition section may also be worked in the form ‘is deemed to include’
which again is an inclusive or extensive definition and such a form is used to
bring in by a legal fiction something within the word defined which according
to its ordinary meaning sis not included within it’
Definition in other Acts
It is always unsatisfactory and genenarlly unsafe to seek the meaning of words
used in an Act of Parliament in the definition clause of other statutes dealing
with matter more or less cognate, even when enacted by the same legislature.
Where a defintion is given in an act, it should be confined as a general rule to
interpret the word defined for that act only and not explain the meaning of the
word in other statute.
Use of words ‘includes’, ‘shall Include’ or ‘shall Mean and Inculde’
Craies opines
“Where an interpretation clause defines a word to mean a particular thing, the
defintion is explanatory and prima facie restrictive and where an interpretation
clause defines a term to include something, the definition is extensive. An
explanatory and restrictive definition confines the meaning of the word defined
to what is stated in the interpretation clause. The reason is that wherever the
word so defined is used in the particular statute in which that interpretion clause
occurs, it will bear only that meaning unless where as it usually provided, the
subject or context otherwise requires, an extensive definition expands or
extends the meaning of the word defined into include within it what would
otherwise not have been comprehended in it when the word defined is used in
its ordinary sense”
VI. Proviso
A proviso follows the enacting part of a section and is in a way
independent of it. Normally, it does not enlarge the section, and in most
cases, it cuts down or makes an exception from the ambit of the main
provision.
A proviso is added to an enactment to qualify or create an exception to
what is in the enactment.
It has no independent existence of its own, it is dependent on the main
enactment. Further proviso is not normally construed as nullifying the
enactment or as taking away completely a right conferred by the
enactment.
If the proviso is unlawful as ultra vires, it can be served from the rest of
the enactment,
Proviso may serve four different purposes: (SC in S. Sundaram Pillai v.
V.R Pattabiraman AIR 1989 SC) such as;
i Qualify or exception certain provisions from main enactment.
ii It may entirely change the very concept of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make the enactment workable.
iii It may be so embedded in the act itself as to become an integral part of the
enactment and thus acquire the tenor and colour of the substantive enactment
itself.
iv It may be used merely to act as an optional addendum to the enactment with the
sole object of explaining the real intendment of the statutory provisions.
Where the main provision is clear, its effect cannot be cut down by the proviso.
Proviso does not travel beyond the provision to which it is a proviso.
Where the section is doubtful, a proviso may be used as a guide to its
interpretation.
The proviso is subordinate to the main section.
Where a proviso is repugnant to the enacting part, the proviso will not prevail
over the absolute terms of a later Act directed to be read as supplemental to the
earlier one.
“It is rule of law that a proviso should receive a strict construction.
When the language of the main enactment is clear and unambiguous, a proviso
can have no repercussion on the interpretation of the main enactment.
VIII. Illustration
Illustration appended to a section form part of the statute. It offer relevant and
valuable indications as to meaning and object of the provision and are helpful in
the working and application of the provision.
Illustrations do not in legal strictness form part of the Acts, and are not
absolutely binding on the courts.
The illustration cannot have the effect of modifying the language of the section
and they cannot either curtain or expand the ambit of the section which alone
forms the enactment.
If there by any conflict between the illustration and the main enactment, the
illustration must give way to the latter.
IX.Explanation
Explanation is appended to a section to explain the meaning of words contained
in the section. It becomes a part and parcel of the enactment.
Explanation does not enlarge the scope of the original section which it explains,
but only makes the meaning clear beyond dispute.
In S. Sundaram Pillai v. V.R Pattaliraman AIR 1985 SCC.
Supreme Court explained the objects of an Explanation provision as follow:
a To explain the meaning and intendment of the act itself.
b Where there is any obscurity or vagueness in the main enactment, to clarify the
same so as to make it consistent with the dominant object which it seems to
subserve.
c To provide an additional support to the dominant object of the act in order to
make it meaningful and purposeful.
d An explanation cannot in any way interfere with or change the enactment or
any part thereof but where some gap is left which is relevant for the purpose of
the explanation, in order to suppress the mischief and advance the object of the
act it can help or assist the court in interpreting the purpose and intendment of
the enactment; and
e It cannot, however, take away a statutory right with which any person under a
statute has been clothed or set at naught the working of an act by becoming a
hindrance in the interpretation of the same.
Explanation to a section is not a substantive provision by itself. It is entitle to
explain the meaning of the word contained in the section or clarify certain
ambiguities or clear them up. It becomes a part and parcel of the enactment. Its
meaning must depend upon its terms.
Explanation normally should be so read as to harmonize with and to clear up
any ambiguity in the main section. It should not be so construed as to alter the
ambit of the section.
X.Schedules
Schedule is part of the statute itself and may be looked into by the courts for the
purpose of interpreting the main body of the statute.
While interpreting the schedules help may always be taken from the main body
of the act to find out the true spirit of the act.
In case of conflict between the body of the act and the schedule the former will
prevail.
Schedules appended to statues form part of the statute. They are added towards
the end and their use is made to avoid numbering the sections in the statute with
matters of excessive details
IV Effect of Repeal
Section 6 of the Indian General Clauses Act, 1897 provides-
Where this Act or any Central Act or regulation made after the 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; or
b Affect the previous operation of any enactment so repealed or anything duly
done or suffered there under; or
c Affect any right, privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed; or
d Affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or
e Affect any investigation, legal proceeding or remedy in respect of any such
right, privilege, liability, penalty, forfeiture or punishment as aforesaid;
And any such investigation, legal preceding or remedy may be instituted, and
continued or enforced, and any such penalty, forfeiture or punishment may be
imposed as if the repealing act or regulation had not been passed.
Whenever there is a repeal of an enactment, the consequences laid down in
sec.6 of the general clauses Act will follow unless, as the section itself says, a
different intention appears.
Transactions that have complete rights that have been acquired and penalties
that have been incurred while a statute is in force, are not affected by the mere
fact of the statute having ceased to be in force.
If right and procedure are both altered by an amending or repealing statute, then
if the rights accrued under the previous enactment are saved, it would seem to
be consequential that the old procedure is saved as well unless the new act
makes the new procedure applicable to old right.
V Subordinate legislation under repealed statute.
Subordinate legislation made under a statute ceases to have effect after repeal of
the statute. This result can be avoided by insertion of saving clauses proving to
the contrary.
When a statute is repealed and re-enacted, section 24 of the General Clause Act,
1897, provides for continuance of any appointment, notification, order, scheme,
rule, form or bye-law made or issued under the repealed statute in so far as it is
not inconsistent with provisions re-enacted.
Case laws
Held: Court rejected the above argument the object of the Act was to conserve
forest wealth and there was no indication in the act to exclude what was
ordinary and in common parlance spoken of as wood oil.
Sandal wood oil was wood oil within the definition of forest produce.
Harbhajan singh v. Press Council of India AIR 2002 SC 1351
Sec. 6(7) of the Press Council Act, 1978 provides:
A retiring member shall be eligible for re-nomination for not more than one
term’
Held: Supreme Court applied the literal meaning of these words and held that
the provision applied to a member just retiring and not to retired members.
For ex:
The period prescribed in the schedule to the Indian Limitation Act 1963, for
bringing a legal proceeding are mandatory because the consequences of the
expiry of the period of limitation is provided by S. 4 of the Act in that the court
is enjoined to dismiss a legal proceeding instituted after expiry of the prescribed
period.
Sec. 17 of the Registration Act 1908 and provisions of Transfer of Property Act
1882 prescribe certain requirements as to registration of certain documents.
These requirements are mandatory as the consequence of non-registration is
provided by s. 49 of the Registration Act in that such documents if not
registered do not affect the property comprised therein.
Shall
The word ‘shall’ though prima facie gives impression of being of mandatory
character, it requires to be considered in the light of the intention of the
legislature by carefully attending to the scope of the statute, its nature and
design and the consequences that would flow from the construction thereof one
way or the other.
Where statute imposes a public duty and lays down the manner in which
and the time within which the duty shall be performed, injustice or
inconvenience resulting from rigid adherence to the statutory prescription may
be a relevant factor in holding such prescriptions only directory.
Ex: While construing sec. 17(1) of the Industrial Dispute Act, 1947, that it
is obligatory on the government to publish an award, but the provision, that it
should be published within thirty days, is not mandatory and an award
published beyond thirty days is not invalid.
May
While construing the word May court has to consider following aspects;
a Object and the scheme of the Act,
b The context and the background against which the words have been used,
c The purpose and the advantages sought to be achieved by the use of this word.
Discretion to be exercised properly-discretion coupled with an obligation
In construing a statute, it always assume that the discretionary power
conferred upon various authorities under the statute will be used properly and
not in an arbitrary or capricious manner.
Mandatory provisions to be strictly construed while directory provisions to be
liberally construed.
Directory provision does not mean that compliance with it is purely
discretionary.
Key aspects
No universal rule can be laid down, while construing statutes, to determine
whether mandatory enactments should be considered directory, or obligatory
with an implied nullification for disobedience. It is the duty of the courts to try
to get at the real intention of the legislature by carefully attending to the whole
scope of the statute to be construed. No universal rule can be laid down in this
matter.
What are mandatory and directory provisions?
Craies put the matter “When statute is passed for the purpose of enabling
something to be done and prescribes the formalities which are to attend its
performance, those prescribed formalities which are essential to the validity of
the thing when done are called imperative or absolute, but those which are not
essential, and may be disregarded without invalidating the thing to be done, are
directory”
Supreme court order: The appeal is allowed and an order shall be issued
directing that, until Parliament by law provides otherwise, the State of Bihar do
for bear and abstain from imposing Sales Tax on out-of-State dealers in respect
of sales or purchases that have taken place in the course of inter-State trade or
commerce even though the goods have been delivered as a direct result of such
sales or purchases for consumption in Bihar. The State must pay the costs of the
appellant in this Court and in the Court below. The interveners must bear and
pay their own costs.
Pending Proceeding
Litigant has no vested right in any matter of procedure, alteration in procedure
law are generally held to be retrospective in the sense that they apply to future
as well as to pending actions.
In Desh Raj Gupta v. Industrial Tribunal IV, Lucknow, AIR 1990 SC 2174
A decision interpreting a Central Act has been used for interpreting
corresponding provision of a state Act holding that they were in pari materia.
I Parliamentary History
English practice
i Traditional view:
Intent of the Parliament which passed the Act, is not to be gathered from
parliamentary history of the statute.
The bill in its original form or the amendments considered during its progress in
the legislature are not admissible aids to construction.
Recommendations contained in the report which may have led to the
introduction of the measures in parliament cannot be used as evidence for the
purpose of showing the intention.
ii Modern trend
Legislative history of a statute can be looked into for interpreting a
provision therein only in case of ambiguity and not otherwise.
In Peppar v. Hart (1993AC 466)
The House of Lords had to decide whether a teacher at a private school
had to pay tax on the perk he received in the form of reduced school fees. The
teacher sought to rely upon a statement in Hansard made at the time the Finance
Act was passed in which the minister gave his exact circumstance as being
where tax would not be payable. Previously the courts were not allowed to refer
to Hansard.
Held:
The House of Lords departed from Davis v Johnson and took a purposive
approach to interpretation holding that Hansard may be referred to and the
teacher was not required to pay tax on the perk he received.
a “Reference to parliamentary material/ speeches for construction can be made
only where the legislation is ambiguous obscure or its literal meaning leads to
an absurdity.
b To find out the meaning of a law, recourse may legitimately be had to the prior
state of law, the evil sought to be removed and the process by which the law
was evolved.
c It cannot control the meaning.
Indian View
a Statement of objects and reasons
Statement of the Minister who had moved the bill in parliament can be looked
at to ascertain mischief sought to be remedied by the legislation and object and
purpose for which the legislation is enacted.
It cannot be used to determine the true meaning and effect of the substantive
provisions of the statute. Nor can control the actually words used in provisions
of the constitution.
Reference to the statement of objects and reasons is permissible for
understanding the background, the antecedent state of affairs, the surrounding
circumstances in relation to the statute, and the evil which the statute was
sought to remedy.
The weight of judicial authority leans in favour of the view that the statement of
objects and reasons cannot be utilized for the purpose of restricting and
controlling the plain meaning of the language employed by the legislature in
drafting a statute and excluding from its operation such transactions which it
plainly covers.
A.K Gopalan v. State of Madras, AIR 1950 SC
‘A speech made in the course of the debate on a bill would at best be indicative
of the subjective intent of the speaker, but it could not reflect the inarticulate
mental process lying behind the majority vote which carried the bill. Nor is it
reasonable to assume that the minds of all the legislators were in accord’.
Kesavand Bharathi v. State of Kerala AIR 1973 SC
Sikri C.J. observed….
Speeches made by members of legislative in the course of debates relating to an
enactment of a statute cannot be used as aids for interpreting any of the
provisions of the statute.
Those who did not speak may not have agreed with those who did; and those
who spoke might differ from each other.
Speeches in the Constituent Assembly could always be perused to find out the
true intention of the framers of the constitution regarding the interpretation of
the constitution.
Indira Sawhney v. Union of India, AIR 1993 SC 477.
The Supreme Court referred to Dr. Ambedkar’s speech in the Constituent
Assembly while interpreting Art. 16(4). The expression background class of
citizens is not defined in the constitution, reference of such debates is
permissible to ascertain at any rate the context, background and objective
behind them.
Statement of objects and reasons accompanying a bill cannot be used to
determine the true meaning but they can be used for understanding the
background and the antecedent state of affairs leading upto the legislation.
b. Proceedings in Parliament
Debates:
The debate upon the bill, the fate of amendments proposed and dealt with in
committee of either House cannot be referred to, to assist in construing the
language of the Act.
Individual opinion of members of the convention expressed in the debate cannot
be referred to for the purpose of construing the constitution.
Speech at Introducing Bill
The court whilst interpreting S. 5 of the Interest Tax Act 1974 held that even if
there were any ambiguity in the matter under consideration, the budget speech
of the Minister of Finance while introducing the Finance Bill, has made the
same clear. Such a speech can be relied upon to throw light on the object and
purpose of the particular provisions introduced by the Finace Bill. (Kerala State
Industrial Development Corporation v. CIT. AIR 2003 SC)
Clear and unambiguous statement made by minister in Parliament are as
much background to the enactment of legislation as while papers and
parliamentary report.
Assurance on behalf of Government is not admissible.
Sushila Rani v. Commissioner of Income-tax & Anor. (2002) SCC 697
While considering the provisions of Kar Vivad Samadhan Scheme 1998, the
Supreme Court had considered the statement of the finance minister while
explaining the object of the said scheme.
Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC.
Supreme Court considered the constitutionality of various state legislations
banning slaughter of certain animals, reference were made to religious books.
28. PENAL-2
R V. Fellow
Whether the computer data in the archive was considered a photograph under
section 1 of the 1978 Act.
If it was not considered a photograph, is the computer disk a copy?
Did the 1978 Act and 1959 Act, before they were amended in 1994, have a wider
scope?
Whether the computer data that was in Fellows possession was distributed, or
shown, by being made available for downloading to other computer users.
Judgment
The computer data within the archive was considered a photograph for the
purposes of section 1 of the 1978 Act.
Even though the computer disc is not itself a photograph, the court held that
there is nothing in the Act which makes it implicit that the copy must be an
actual physical photograph
The data stored in a computer disc, a technology not anticipated in 1978, was
held to amount to ‘indecent photograph’ within the meaning of section 1 of the
protection of Children Act, 1978
Obiter dicta
Observation as to the law made by a judge in the course of a case relating to the
problem arising for decision, though they may have great weight as such as not
conclusive authority.
Obiter dictum is an opinion on some point which is not necessarily for the
decision of the case
Carnelius v. Phillips [1918 AC]
Dicta by judges, observed Lord Haldane ‘however eminent, ought not to be
cited as establishing authoritatively propositions of law unless the dicta really
form integral parts of the train of reasoning directed to the real question
decided’.
The general observations of Lordships of the Supreme Court too are entitled to
great weight.
A certified true copy of the decision of the High Court is binding on the court
inferior thereto.
It is impermissible for a High Court to overrule the decision of the Apex Court
on the ground that the Supreme Court laid down legal position without
considering any other point. High Court cannot question the correctness of the
decision of the Supreme Court even though the point sought before the High
Court. (Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420.)
When a court differs from the decision of a co-ordinate bench of a Single Judge
of High Court, the decision should be referred to Larger Bench.
If a division bench of a High Court differs from the view expressed by another
division bench of the same court, it is appropriate that the matter is referred to a
larger bench. (Rajesh Kumar Verma v. State of Madhya Pradesh and
others, AIR 1995 SC 1421).
When there is a conflict of opinion that is when there is disagreement by one
single judge with the decision of another single Judge it is appropriate that the
appropriate course is to refer the matter to a larger bench for an authoritative
decision.
One Full Bench decision cannot over rule another Full Bench Decision
delivered by Judges of equal strength.
Circumstances weakening the bidingness of precedents
Abrogated decisions
A decision ceases to be binding if a statute or statutory rule is inconsistent with
it is subsequently enacted or if it is reversed or overruled by a higher court.
Ignorance of statute
A precedent is not binding if it was rendered in ignorance of a statute or rule
having the force of statute. Such decisions are per incuriam and not binding.
The mere fact that the earlier court misconstrued a statute or ignored a rule of
construction is no ground for impugning the authority of precedent.
To come within the category of per incuriam it must be shown not only that the
decision involved some manifest slip or error but also that to leave the decision
standing would be likely, inter alia, to produce serious inconvenience in the
administration of justice or significant injustice to citizens.
Sub silentio
Precedents sub silentio or not argued: A decision passes sub silentio when the
particular point of law involved in decision is not perceived by the court or
present to its mind. When a decision is on point A upon which judgment is
pronounced but there was another point B on which also court ought to have
pronounced before deciding the issue in favour of the party, but that was not
argued or considered by the Court. In such circumstances although point B was
logically involved in the facts and although the case had a specific outcome, the
point B is said to pass sub silentio. (Gerard v. Worth of Pipers Ltd (1936) 2 All.
E R 905(A))
A precedent is not destroyed merely because it was badly argued, inadequately
considered and fallaciously reasoned.
Total absence of argument vitiates the precedent. A decision is an authority only
for what it actually decides and not for what may logically or remotely follows
from it.
Decision on a question which has not been argued cannot be treated as
precedent. M/s. Goodyear India Ltd. v. State of Haryana and another, AIR 1990
SC 781.
Distinguishing
A binding precedent is a decided case which a court must follow. But a previous
case is only binding in a later case if the legal principles involved are the same
and the facts are similar.
Distinguishing a case on its facts, or on the point of law involved, is a device
used by judges usually in order to avoid the consequences of an earlier
inconvenient decision which is, in strict practice, binding on them.
Even Apex Court is bound by its earlier decisions. It is only when the Supreme
Court finds itself unable to accept the earlier view; it shall be justified in
deciding the matter in a different way.
Overruling
A higher court can overrule a decision made in an earlier case by a lower court
eg. The Court of Appeal can overrule an earlier High Court decision.
Overruling can occur if the previous court did not correctly apply the law, or
because the later court considers that the rule of law contained in the previous
ratio decidendi is no longer desirable.
The Apex Court, which in the light of the subsequent experience has been found
to be patently erroneous, manifestly unreasonable or to cause hardship or public
inconvenience. The Court has to keep the balance between the need of certainty
and continuity and the desirability of growth and development of law.
Reversing
Reversing is the overturning on appeal by a higher court, of the decision of the
court below that hearing the appeal. The appeal court will then substitute its
own decision.
Non speaking order
Non speaking order dismissing special leave petition would not constitute
binding precedent as to the ratio of the High Court involved in the decision
against which special leave petition to appeal was filed. (Ajit Kumar Rath v/s
State of Orissa (1999) 9 SCC 596)
on facts
If a judgment is rendered merely having regard to the fact situations obtaining
therein , the same could not be declaration of law within meaning of Article
141.(UP State Brassware Corp. Ltd v. Uday Narain Pandey AIR 2006 SC 586 ;
(2006)1 SCC 479)
There is nothing in the Constitution which prevent the Supreme Court from the
reversing its previous decision. (State of West Bengal v. Corporation of
Calcutta, AIR 1967 SC 997: 1967(2) SCR 170.)
Decisions per incuriam
Per incuriam is a doctrine often invoked in declining to follow a particular
decision for certain reasons. A judgment per incuriam need not be followed
as binding precedent.
Where ratio decidendi in a decision has been laid down in ignorance of the
provisions of the Act conferring jurisdiction, is not a binding precedent.
Where certain views are expressed without analyzing statutory provision it
cannot be a binding precedent and at the best it would be a decision per
incuriam.
A Judgment is per incuriam if it is rendered in ignorance of a binding
authority.
A judgment is per incuriam if it is rendered in ignorance of a statute or a
rule having the force of a statute.
31. PRESUMPTION-I
Legal Roots of Presumption
A presumption in the ordinary sense is an inference; it comes into operation
only in the absence of relevant information or evidence, is an anticipation of
something yet unproved. It is tentative and provisional rather than absolute and
final.
A presumption may be defined to be an inference required by a rule of law
drawn as to the existence of one fact from the existence of some other
established basic facts-it is a true presumption of fact in the sense that another
fact is assumed from established facts. It is a presumption of law in the sense
that a rule of law requires the assumption to be made.
Acc. to Stephen’s language, “a rule of law that courts and judges shall draw a
particular inference from a particular fact, or from particular evidence, unless
and until the truth of the evidence is disproved”
Examples:
a the person accused of a crime is innocent
b that the child born in wedlock is legitimate, as is one born within eleven months
of the husband’s death.
c that a person missing for seven years or more is dead
d that young children (under the age of seven) cannot commit a felony.
e That a document over 30 years old is genuine.
VI. Presumption that the court is to apply remedy provided for the ‘mischief’
The legislature intends the interpreter, in construing the statute, to endeavor to
apply the remedy provided by it in such a way as to suppress the ‘mischief’.
32. PRESUMPTION-II
X. Presumption that the words in a Statute are used precisely and not
loosely
The general rule used in holding such presumptions is verbis legis non est
recedendum- You must not vary the words of a statute.
The interpreter must not make any interpretation contrary to the express words
of an enactment.
In the case of Spillers Ltd. v Cardiff (Borough) Assessment Comm it was
observed by Lord Hewart, C.J.-
“It ought to be the rule and we are glad to think that it is the rule that words are
used in an act of Parliament correctly and exactly and not loosely and
inexactly.”
XI. Presumption that vested rights are not taken away without express words or
necessary implications or without compensation:
A statute generally, is not given a retrospective operation to take away a vested
right, except in such situations where in the intention of the legislature is to give
retrospective effect to the enactment. Also, it is presumed that the interpreter
will not construe the statute in a manner as to deprive persons of their properties
without payment of compensation unless such a conclusion is ineluctable.
Inglewood Pulp Co. v New Brunswick Electric Power Commission, it was held-
“….and the rule has long been accepted in the interpretation of statutes that
they are not to be held to deprive individuals of property without compensation
unless the intention to do so is made quite clear.”
United Provinces v Atiqa Begum, -
“It is a well-recognized rule that statutes should, as far as possible be so
interpreted, as not to affect vested rights adversely, particularly when they are
being litigated. When a statute deprives a person of his right to sue or affects
the power or jurisdiction of a court in enforcing the law as it stands, its
retrospective character must be clearly expressed.”
XII Mens Rea is generally required for a criminal act:
It is always presumed that an interpreter of a statute must not find a man guilty
of any criminal act unless the person is proved to have a guilty mind.
Actus non facit reum nisi mens sit rea. In the case of Brend v Woo, Lord Chief
Justice of England observed:
“It is in my opinion of the utmost importance for the protection of the liberty of
the subject that the court should always bear in mind that, unless the statute,
either clearly or by necessary implication, rules out mens rea as a constituent
part of crime, a defendant should not be found guilty of an offence against the
criminal law unless he has got a guilty mind.”
It is thus presumed that the requirement of the mens rea (guilty mind) is a must
for convicting a person of a criminal offence.
The plain words of the statute are read subject to the presumption that no crime
can be committed unless there is mens rea.
Such a measure is resorted to in public interest and moral justification of laws
of strict liability. Offences of strict liability do not violate the principle of fair
procedure and the principle that everyone charged shall be presumed to be
innocent until proven guilty according to law.
XIII Presumption government bound by the statute/ Statute affect the State
Since a law is passed by the crown for its subjects, there is a presumption that a
statute does not bind the crown. The crown, by passing a statute, does not wish
to harm his own interest nor does he wish to interfere with his own rights.
Therefore, the normal presumptions that the crown is not bound by a statute
unless so is provided by express terms of the statute or by necessary
implication.
According to Maxwell, this presumption extends to the Crown’s servants and
agents also but there are many persons and bodies whose position as servants or
agents of the crown is not altogether clear and their liability depends on the
nature of the function performed by the person or body in question.
Maxwell states that the Crown may be held to be bound by a statute in the
following four cases-
a Where the crown is clearly bound by a provision in which it is expressly stated
to be bound under statute;
b Where the intention to bind the crown is manifest;
c Where the prerogative, rights or property of the crown are not in question; and
d Where a statute is for advancement of religion or learning and for the
maintenance of the poor; or for suppression of wrong, or for performing the will
of a donor.
By the passage of the Crown Proceeding Act, 1947 the area of liability of the
Crown has been widened very considerably.
In India, the question whether the state is bound by a statute or not does not
seem to be clear beyond doubt. The Supreme Court till 1964 had consistently
been deciding following the English Presumption, that the State is not bound by
a statute unless expressly named therein or included by necessary implication.
But the position seems to have changed since 1967. Since that year Supreme
Court has been holding that the presumption under English law is not applicable
in India.
It is always presumed that the government is also bound by a statute unless
excluded expressly or by necessary implication
In the landmark judicial decision of K. M. Nanawati v State of Bombay, it was
observed that-
“The State is bound by the Code of Civil Proceeding , the scheme of the code
being that subject to any special provision made in that regard, as respects
governments, it occupies the same position as any other party to a proceeding
before the court.”
Thus, the state is presumed to be bound by the law unless it has been expressly
intended by the legislators not to be bound by the law.
Samatha v. State of Andhra Pradesh, AIR 1997 SC.
Section 3(1)(a) of the Andhra Pradesh Scheduled Area Land Transfer
Regulations, 1959.
Under this provision no ‘person’ is authorized to transfer any land in the
scheduled area to a non-tribal person. The Supreme Court while interpreting the
word ‘person’ in this provision held that the ‘government’ is also included
within the word ‘person’ and as such even the government cannot transfer land
in the scheduled area to a non-tribal person.
Satya Narain v. Distt. Engineer, AIR 1962 SC
It has been held that Roadways Deptt. Of the State was liable to pay toll tax
under section 15, Northern India Ferries Act, 1876.
XIV. Presumption that the jurisdiction of the courts is neither enlarged nor
decreased
There is a strong presumption that statute should not be construed so as to take
away the jurisdiction of superior courts, or so as to extend that jurisdiction by
giving a right of appeal.
For example, there is a strong presumption that civil courts have jurisdiction to
decide all questions of civil nature. The exclusion of jurisdiction of civil courts
is therefore not to be readily inferred. There can be any such exclusion of
jurisdiction only when the same is either “explicitly expressed or clearly
implied.
The jurisdiction is bestowed in a court by a legislation, legislation alone can
take away the same. The parties to a dispute can neither create by mutual
consent jurisdiction of court to try their dispute nor can they take it away by
mutual consent if in fact a court is vested with jurisdiction in the matter. Mutual
consent of the parties, can create an arbitrator and the arbitrator may be a judge
also.
The basis of such a principle is that the law presumes that a remedy in the
ordinary civil courts must always be available to a citizen unless a contrary
intention unmistakably appears from the terms of a statute.
According to such presumption of legislation a jurisdiction of a court can be
enlarged only where the legislator has expressly intended to do the same. The
creating of new jurisdiction or enlarging the existing ones cannot take place by
means of any sort of implication but only through express language of the
legislator.
Legislation that gives jurisdiction to subordinate courts, tribunals and
government agencies must be strictly construed and the procedure prescribed by
the legislation, if any should be strictly adhered to in the judicial interpretation.
According to such presumption of legislation a jurisdiction of a court can be
enlarged only where the legislator has expressly intended to do the same.
The creating of new jurisdiction or enlarging the existing ones cannot take place
by means of any sort of implication but only through express language of the
legislator.
In Coljax Laboratories Ltd (1) v. State of Goa, (1995) Goa LT 325.
It was held that the court will not favour an interpretation which has the effect
of taking away the jurisdiction of the competent authority, unless the same is
expressly provided for in law.
XV. Presumption against the ouster of Jurisdiction
If a statute purports to exclude the ordinary jurisdiction of civil courts, it must
do so either by express terms or by the use of such terms as would necessarily
lead to the inference of such exclusion.
When the language is doubtful, the courts will lean against an ouster of the
jurisdiction of the ordinary courts, except in cases which are clearly and
specifically indicated by the legislature.
It is an accepted principle of statutory interpretation that when a right of suit is
taken away and the remedy by way of application is substituted, the prohibition
in regard to the filing of the suit should be read as co-extensive with the remedy
that is provided.
33. PRESUMPTION-IV?
Statute affecting the crown or the state
Rule of English law is that no statute binds the crown unless the crown is named
therein either expressly or by necessary implication because a statute is
presumed to be enacted for the subject and not for the King.
Extension of the rule to all those officers of the state and their subordinate’s
who perform pursuant to statutory authority.
Common law rule that the crown was not bound by a statute unless named
expressly or by necessary implication applied to India before the constitution
came into force. (Bombay Province v. Bombay Municiapal Corporation AIR
1947 PC 34)
State of W.B V. Corporation of Calcutta, AIR 1967 SC
All general rules apply to citizens as well as to state unless it express or by
necessary implication exempts the state from its operation.
In view of Article 285 of the Constitution of the Union is exempt from taxation
imposed by a state law unless the Parliament provides otherwise.
Article 289 which relates to exemption of property of a State from Union
taxation have no application to indirect taxes such as custom duty, central excise
duty, sales tax etc. The Union is therefore liable to sales tax under a State Act.
The municipal corporation cannot evades the ban of Article 285 and tax union
property by levying service charges for water, electricity supplied and drainage
and roads provided to posts and telegraph buildings.
LDA V.M.K Gupta, AIR 1994 SC
Consumer Protection Act, 1986 applies to a statutory authority and a
Government or semi-Government body or a local authority in the same way as
it applied to private bodies for the act does not expressly or impliedly indicate
that these bodies are excluded from the purview of the Act. Article 285 of the
Constitution provides that property of the Union is exempt from taxation
imposed by a state law unless the Parliament provides otherwise.
X Presumption that statutes are not intended to be inconsistent with international
law
Every enactment is to be so interpreted as not to be inconsistent with the well
established rules of international law, except when a contrary intention is
expressed ‘clearly’.
Legislature is presumed not to enact anything contrary to international law or
the common law of the realm. Unless, therefore, the intention to do so is clearly
expressed in the enactment, the courts would be inclined to favour an
interpretation which would bring the enactment into consonance with those
principles rather accept a grammatical interpretation
A very important observation in this respect was made by Khanna J. in the
landmark case of Kesavananda Bharati v State of Keral
“It is only in cases of doubt or ambiguity that the courts would interpret a
statute so as not to make it inconsistent with the comity of nations or
established rules of international law.”
In Maxwell’s ‘Interpretation of Statutes’, it has been observed-
“But if a statute is clearly inconsistent with international law or the comity of
nations, it must be so construed, whatever the effect of such a construction may
be. There is, for instance, no doubt that a right conferred on an individual by a
treaty made with the crown may be taken from him by the act of legislature.”
ADM, Jabalpur v. Shivakant Shukla AIR 1976 SC.
Justice Khanna authoritatively laid down that:
“Equally well established is the rule of construction that if there be a conflict
between the municipal law on one side and the international law or the
provisions of any treaty obligations on the other, the courts would give effect to
municipal law. If, however, two constructions of the municipal law are possible,
the court should lean in favour of adopting such construction as would make the
provisions of the municipal law to be in harmony with the international law or
treaty obligation.”
Regard to International Agreements or conventions and international law
Regard was given to art. 11 of the International Covenant on Civil and Political
Rights which provided that no one shall be imprisoned merely on the ground of
inability to fulfill a contractual obligation and this Article greatly influenced the
court in giving a limited meaning to S. 51 and O 21,r 37 of the CPC.
In Nilabati Behra v. State of Orissa AIR 1993 SC
Art.9(5) of the International Convention on Civil and Political Rights was
considered. Article 9(5) said that ‘anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compression’.
This article was referred to in support of the view that damages could be
allowed under art 32 and 226 of the Constitution for violation of the
Fundamental Right enshrined in Art. 21.
34. PUNCTUATION
XI.Punctuation
England
No punctuation in the manuscript copy of any Act which received the Royal
assent, the court cannot have any regard to punctuation for construing the older
Acts.
In Ashwini Kumar Ghose v. Arabinda Bose, AIR 1952 SC
J. B.K Mukherjea observed “Punctuation is after all a minor element in the
construction of a statute, and very little attention is paid to it by English Courts.
When statute is carefully punctuated and there is doubt about its meaning, a
weight should undoubtedly be given to punctuation-
I need not deny that punctuation may have its uses in some cases, but it cannot
certainly be regarded as a controlling element and cannot be allowed to control
the plain meaning of a text.”
In Mohd. Shabbir v. State of Maharashtra, AIR 1973 SC 1425
Sec. 27 of the Drugs and Cosmetics Act, 1940 came up for construction.
Section provides whoever ‘manufactures for sale, sells, stocks or exhibits for
sale or distributes’ a drug without a licence, is liable for punishment.
Question arouse before the court that whether mere stocking is an offence?
Held: Mere stocking is not an offence within the section but stocking for sale
could amount to offence because of the absence of comma after ‘stock’.
Supreme court pointed out the presence of comma after ‘manufactures for sale’
and ‘sells’ and absence of any comma after ‘stocks’ indicates that mere stocking
is not an offence within the section. It was, therefore held that only stocking for
sale could amount to offence and not mere stocking.
While marks of punctuation contained in a statute will not generally be wholly
ignored by the court in interpreting a statutory provision, it may not always be
safe to rely on punctuation as a deciding factor.
I Reading Down:
Where general language in a statute which is literally apt to extend beyond the
power of the enacting legislature will be construed more narrowly so as to keep
within the permissible scope of power.
Where there are two interpretations, one wide and unconstitutional bounds, the
court will read down the overflowing expressions to make them valid.
The technique involves choice of valid but limited meaning as against invalid
but overbroad meaning.
This rule is based on constitutionality of legislation and tries to balance between
legislative autonomy and constitutionalism.
Reading down is not redrafting, but it is narrowing the reach of the statute for a
constitutional survival.
In R.M.D.C, While dealing with the constitutionality of the Prize Competition
Act, meaning of its definition was restricted to competitions of gambling nature
by applying the reading down rule, to save its constitutionality.
II Reading Up
III Reading in
Commissioner of Sale Tax, Madhya Pradesh, Indor v. Radha Krishna AIR 1979
SC
In spite of repeated demand notices by the Sale Tax Officer, the acessee firm did
not pay the tax
Criminal prosecution of the respondent partner was sanctioned by the
commissioner under Sec. 46(1)(d) of M P General Sale Tax Act 1958.
The respondent challenged the validity of the provision on the ground that there
were two separate provisions,
Section 22(4-A) and 46(1)(C) under the Act. Under which different procedure
were prescribed to realize the amount due but there was no provision of law
which could tell as to which procedure was to be followed in which case.
Held: Supreme held that a reading of the two provisions reveals that out of two
the procedure prescribed under Sec. 46(1)© was more drastic.
A harmonious interpretation of the two provision that there was a judicial
discretion with the commissioner to decide as to which procedure was to be
followed in which the case. If the commissioner failed to act judicially while
choosing the procedure the court had a right to intervene.
(b) he is not occupying in the urban area concerned for the purpose of his
business any other such rented land, and
(c) he has not vacated such rented land without sufficient cause after the
commencement this Act, in the urban area concerned."
The High Court of Punjab held that the words ‘for his own use’ in cl (a)
permitted the landlord to claim eviction for his own used. Whatever may be the
nature of the use.
Supreme Court reserved the High Court’s decision and applied the principle that
statute should be read as a whole. Words ‘for his own used have been used in a
restricted sense and would mean that his own used could be only of or business
purposes as was clear clause (a) is read together with clauses (b) and (c).
40.
3. STATUTORY INTERPRETATION IN LIGHT OF CHANGES IN
SOCIAL, POLITICAL, ECONOMIC DEVELOPMENTS AND
SCIENTIFIC INVESTMENT
A statute may be interpreted to include circumstances or situations which were
unknown or did not exist of the enactment of the statute.
Statute must be interpreted in the light of the legal system as it exists today.
Lord Bridge observed: “When a change in social conditions produces a novel
situation, which was not in contemplation at the time when a statute is first
enacted, there can be no a priori assumption that the enactment does not apply
to the new circumstances, there is no reason why it should not apply”.
When in the changed circumstances the common law fiction that by marriage
the wife must be deemed to have irrevocably consented to sexual intercourse in
all circumstances has been come anachronistic, the husband can be convicted of
rape under the Sexual Offences (Amendment) Act, 1976, if he has sexual
intercourse with his wife without her consent. (R v. R 1991) 4 All ER 481.)
R v. C, (2004) All ER
Change in social outlook has also resulted in the view that a man recklessly
infecting a woman or his wife with HIV even during consensual intercourse,
when the woman or wife did not know that the man was suffering from a
disease which could be transmitted by sexual intercourse, would be guilty of
inflicting grievous bodily harm under section 20 of the Offences against the
Person Act, 1861.
Anuj Garg v. Hotel Association of India, (2008) 4 SCC.
Section 30 of the Punjab Excise Act 1914 prohibited the employment of any
man under the age of 25 years or any women in any part of premises in which
liquor or intoxicating drugs were consumed by the public.
This law may be good having at that time, but having regard to the present
social conditions and equality to sexes guaranteed under the constitution, the
same was declared void.
The effect of change in social attitude bring about change in interpretation.
The word ‘Person’ under Sec.27 of the Representation of the People (Scotland)
Act, 1868 was held in 1901 not includes women thereby disentitling them to
vote. But Privy Council in 1929 overruling the said decision and held women as
eligible to contest as well as right to vote.
Change in social attitude towards homosexuals, two persons of the same sex
cohabiting and living together for a long time with mutual degree of
interdependence have been held as constituting a ‘family’. (Fitzpatrick v.
Sterling Housing Association LTD., (1994) All ER.)
Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) SCC
Where the Supreme Court opined that a ‘broad and expansive interpretation
should be given to the term wife in accordance with the spirit of the beneficial
provision i.e section 125 of the Code of Criminal Procedure. In this case, the
court declared that if a man and woman live together for a long time, as
husband and wife, without valid marriage rites, a presumption of marriage
would still be made so as not to deny the woman the benefit of maintenance.
Capturing the essence of statutory interpretation in light of socio-economic
changes, the court said:
“ We believe that in light of the constant change in social attitude and value,
which have been incorporated into the forward-looking Act of 2005, the same
needs to be considered with respect to Section 125 of Cr.P.C and accordingly, a
broad interpretation of the same should be taken”.
A Shift in social attitudes towards euthanasia can also be charted by studying
the move from the Gian Kaur v. State of Punjab 1996 SCC to the Aruna
Ramchadra Shanbaug v. Union of India & Ors. (2011) . In the Gian Kaur case,
the court look a very strict view of Art. 21 and said that the state has a duty to
protect life, and therefore could not legitimize ending it. But the court took
cognizance of growing literacy and a changing social view point towards mercy
killing in the Aruna Shanbaug case. It interpreted the same Article 21 to say that
it gives the right to live with human dignity. The court differed in its
interpretation of the same Article done in 1996 and lay down guidelines for
passive euthanasia.
General words are construed to include new inventions and technological
advances not known at the time when the act was passed
It has been held that telephone is ‘telegraph’ within the meaning of that word
in the Telegraph Acts, 1863 and 1869 although telephone was not invented in
1890.
Definition of ‘telegraph’ in the Indian Telegraph Act, 1885 is wide enough to
take in electric lines used for the purpose of wireless telegraph.
The word ‘handwritten in section 45 of the Evidence Act, 1872 will embrace
typewriting.
State of Maharashtra D. Dr. Praful B. Desai, AIR 2003 SC 2053
Whether evidence in a criminal trial could be taken through video-conferencing,
with reference to section 273 of the Cr.pc
Held: Keeping inn view of advances in science and technology ought to be
applied to it, thereby holding that evidence of a witness taken through video-
conferencing would satisfy the requirements of evidence taken in the presence
of the accused.
Liberal construction is given so as to include within its ambit the future
developments in various fields of human activity.
M.C Mehta v. Union of India AIR 1987 SC
In this case, the SC evolved the principle of absolute liability and differentiated
it from the tortuous principle of strict liability expressed in Rylands v. Fletcher
(1868) while evolving this doctrine, the court observed that:
‘This rule evolved in the 19th Century at a time when all these developments of
science and technology had not taken place cannot afford any guidance in
evolving any standard of liability consistent with the constitutional norms and
the needs of the present day economy and social structure. We need not feel
inhibited by this rule which was evolved in this context of a totally different
kind of economy. Law has to grow in order to satisfy the needs of the fast
changing society and keep abreast with the economic developments taking place
in the country.
Vineet Narain v. Union of India AIR 1998 SC
Supreme Court virtually look away the power of superintendence over the CBI
vested in the Central Government under section 3 of the Delhi Police
Establishment Act, 1947, without holding it ultra vires, and transferred to it to
the Central Vigilance Commission which was directed to be given a statutory
status.
Prakash Singh v. Union of India AIR 2006 SCC
The task of extensive police reform was undertaken by the Supreme Court to
insulate police machinery from outside interference and detailed directions were
issued to that end which indirectly require repeal of the India Police Act, 1861.
Seema v. Ashwani Kumar AIR 2006 SCC
The court noticed that though India was a signatory to the Convention on the
Elimination of All Forms of Discrimination against Women and also ratified the
convention.
The court held that “in the interest of society” marriages are made compulsorily
registered.
"We cannot allow the dead hand of the past to stifle the growth of the living
present. Law cannot stand still; it must change with the changing social
concepts and values. If the bark that protects the tree fails to grow and expand
along with the tree, it will either choke the tree or if it is a living tree, it will
shed that bark and grow a new living bark for itself. Similarly, if the law fails to
respond to the needs of changing society, then either it will stifle the growth of
the society and choke its progress or if the society is vigorous enough, it will
cast away the law which stands in the way of its growth. Law must therefore
constantly be on the move adapting itself to the fast changing society and not
lag behind."
Critics
The moral obligation of the court is first and foremost to do justice to the
litigants in from of them, and to the extent their rulings have the force of
binding precedent, court duty is to make the law the best it can be.
Textualism is bound to fail on its own terms; it is bound to be flip-flop theory,
one that cannot be applied consistently across the board. Textualism is thus
inherently deceptive and consequently immoral.
The textualist approach is premised on the exclusive validity of the statutory
language as the source of legislative intent. Textualists believe that statutory
language is the source of judicial power and the only legitimate object of
judicial concern. One of the cardinal rule applied by textualists for statutory
interpretation is the ‘Pleain Meaning Rule’
II. Intentionalism
When a statute gives rise to different meaning then the real intention is to be
sorted out.
According to William Eskridge, Philips and Frickey views that legislative intent
is not only a collective intent but also a coincidence of at least two different
collective intents, that of the senate and the house.
Roscue Pound emphasizes that the object of genuine interpretation is to
discover the rule with which the law maker intended to establish, to discover the
intention with which the law maker mad the rule or the sense which he attached
to the words wherein the rule is expressed.
Legislatures say that an interpreter’s role is to give a statute the meaning most
consistent with their intention,
Interpreter should follow the intent that was actually manifested, unless it would
lead to an absurd result.
When a judges interpret a statute in common law, they are inclined not only to
interpreted it in light of precedents and historical developments, but also in
cultural, political, economic and technical advances being made in the society.
This is to say that the judiciary by giving dynamic statutory interpretation-fills
in the lacuna in the law which came up due to the changing circumstances,
however many have criticized this rule and alleged that a misguided application
of the same, largely due to judicial hyper activism can result into difficulties
such as betraying the intent of the legislature behind the enactment of the
concerned act or policy etc.
What purpose is served by the theory of dynamic statutory interpretation?
A rational society, as the law always presupposes, will desire that the ongoing
statute shall be construed in such a manner that takes the society forward, not
backwards
Pedantic interpretation can render a statute obsolete has been expressed by
eminent judges since the second half of the 19th Century.
Ex: when the negotiable instrument act, 1881 came into force, notice writing
was meant to be construed literally only. However with the invention of fax
machines, notices corresponded through these machines were also brought
under the purview of notice in writing.
Such an illustration and interpretation affirms that view that “words cannot be
static vehicles of ideas or concepts.
This cannon of law provides interpretative guidance to the judiciary in coming
up with the best possible solution to the problem at hand and the most coherent
decision which the legislators could have intended.
Dynamic theory presupposes that the judicial organ of country is abreast with
the contemporary world by taking into account the technological, political,
economic and social advancements that have been taking place.
Immanuel Kant, a famous German philosopher, went a step further and claimed
that “even permanently unalterable laws should not be allowed to hold back
progress”
Ronald Dworkin who argued that statue should change as “law’s integrity”
develops and changes.
To arrive at a best decision/fair or effective justice delivery mechanism cannot
be accomplished by recreating past events and fulfilling past expectations rather
it is the current web of beliefs and policies surrounding the statue” the guide
the judicial fraternity to arrive at the best decision in consonance with not only
the original intent but also present needs.
School Board v. Arline, SC USA
Person with contagious diseases like tuberculosis was handicapped to receive
the benefits accorded to “handicapped person” within the meaning of the
Rehabilitation Act 1973.
In India similar approach has been followed by the judiciary in National Taxtile
Workers’ Union v. P. R Ramakrishn, AIR 1983 SC
While concluding Video conferencing would meet the requirements under sec.
313 of CrPC( which mandated the physical presence of the accused), said that
the aforementioned section was to be considered in the light of the
revolutionary changes in technology, communication and transmission and the
marked improvement.
Constitution is a living document, expanded the scope of art. 21 to ensure that
judicial system of India grows with the changes that the country was witnessing
Problem with the dynamic theory
Many academicians and opponents of Dynamic theory have contended that by
resorting to this method, the judiciary has overstepped the role that was
apportioned to it by the constitutional scheme, especially when it comes to India
This is to say that the judiciary has encroached upon the power, authority and
responsibility that was awarded to the parliament.
Judicial activism and judicial overreach as the judiciary has been accused of. Or
judicial hyper activism.
Opponent of dynamic theory four another arguments that this theory often
ignored the historical legitimacy of originalism.
No finality inconsistent do arises.
Isolated and unelected judiciary.
43. WEBSITE
5. Wikipedia
Imp. Cases-
SP Choudhury v. state of Punjab