Ios Complete Coverage of The Syllabus and The Different Concepts Under Ios

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Interpretation of Statutes
What do you mean by Statute?
Statute signifies an act of the legislature; a law established by the act of the legislative power. It
is a law or enactment of a legislative authority and set forth in a formal document. It is said that
‘statute’ (statutum) was first used on an act of 55 Henry III. This word is used to designate the
written law in contradistinction to the unwritten law.1
Words spoken or written are the means of communication. Where they are possible of giving one
and only one meaning there is no problem. But where there is a possibility of two meanings, a
problem arises and the real intention is to be sorted out. It two persons communicating with each
other are sitting together; they can by subsequent conversation clear the confusion and make
things clear. But what will happen if a provision in any statute is found to convey more than one
meaning? The Judges and the Lawyers whose duty it is to interpret statutes have no opportunity
to converse with the Legislature which had enacted a particular statute. The Legislature, after
enacting statutes becomes functus officio so far as those statutes are concerned. It is not their
function to interpret the statutes. Thus two functions are clearly demarcated. Legislature enacts
and the Judges interpret.
The difficulty with Judges is that they cannot say that they do not understand a particular
provision of an enactment. They have to interpret in one way or another. They cannot remand or
refer back the matter to the Legislature for interpretation. That situation led to the birth of
principles of interpretation to find out the real intent of the Legislature. Consequently, the
Superior Courts had to give us the rules of interpretation to ease ambiguities, inconsistencies,
contradictions or lacunas. The rules of interpretation come into play only where clarity or
precision in the provisions of the statute are found missing.
There are two types of Ambiguities, namely;
• Latent Ambiguity – means introduced by explicit evidence whose vagueness is hidden

and can be introduced at later stage.
• Patent Ambiguity – means an ambiguity that is not introduced by extrinsic evidence and
is apparent of face of record so requires no introduction.
Good enactments are those which have least ambiguities, inconsistencies, contradictions or
lacunas. Bad enactments are gold mine for lawyers because for half of the litigation the
legislative draftsmen are undoubtedly the cause.
The purpose of the interpretation of the statute is to unlock the locks put by the Legislature. For
such an unlocking, keys are to be found out. These keys may be termed as aids for interpretation
and principles of interpretation. 2
1
The Major Law Lexicon – P Ramanatha Aiyar, 4th Edn 2010 P. 6455/56.
2
http://www.ijtr.nic.in/articles/art21.pdf
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Definition of Interpretation & Construction
Michael Zander3 gives three reasons why statutory interpretation is necessary.
1. Complexity of statutes in regards to the nature of the subject, numerous draftsmen and
the blend of legal and technical language can result in incoherence, vague and ambiguous
language.
2. Anticipation of future events leads to the use of indeterminate terms. The impossible task
of anticipating every possible scenario also leads to the use of indeterminate language.
Judges therefore have to interpret statutes because of the gaps in law. E.g. use of the word
‘reasonable’.
3. The multifaceted nature of language. Language, words and phrases are an imprecise form
of communication. Words can have multiple definitions and meanings. Each party in
court will utilize the definition and meaning of the language most advantageous to their
particular need. It is up to the courts to decide the most correct use of the language
employed.
Interpretation is the process by which the Courts seek to ascertain the meaning of the
legislation through the medium of authoritative forms in which it is expressed.4
It is the process by which a judge (or indeed any person, lawyer or layman, who has occasion to
search for the meaning of a statute) constructs from the words of a Statute Book a meaning
which he either believes it to be that of the legislature, or which he proposes to attribute to it.5
Interpretation is the process by which the courts determine the meaning of a statutory provision
for the purpose of applying it to the situation before them.6
Construction, as applied to written law, is the art or process of discovering and expounding the
meaning and intention of the authors of the law with respect to its application to a given case,
where that intention is rendered doubtful either by reason of apparently conflicting provisions or
directions, or by reason of the fact that the given case is not explicitly provided for in the law. 7
Construction means construing, explaining or interpreting of a text, statement, action or words

etc. in a statute.
3
British Legal Scholar.
4
Salmond: Jurisprudence, 11th Edn, P. 152.
5
Gray: The nature and the source of the law, 2nd Edn. P.176.
6
Cross: Statutory Interpretation, 3rd Edn. P.34.
7
Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 1 (1896).
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Presumptions & Considerations in Interpretation
Presumption in interpretation means that certain things are considered to be true and correct.
Some of such presumptions are:-
1. Presumption as to validity of the statute

Every statute enacted by the Legislature is considered to be valid and there is a strong
presumption in favor of the validity of an enactment. It is presumed that every law is able
to pass the test of constitutionality. While interpreting a statute or a provision thereof, the
courts have to proceed with the presumption that a particular law is intra vires and does
not confront the Constitution. Unless contrary is established beyond doubt, the court shall
uphold the law.8
2. Presumption as to territorial operation of the statute

It is presumed that the law enacted by a Legislature would operate within the territorial
limits of that Legislature only. The Legislature of one country cannot call on the subject
of another country to appear before its tribunals because he has never been within their
jurisdiction. Any legislation is presumed to be limited to those persons, property and
events in the territory over which the Parliament enacting the law has jurisdiction, unless
otherwise is expressly provided in the language of a statute or the same is inferred by
necessary implications.
3. Presumption that statutes are consistent with International Law

It is presumed that the Legislature does not to enact anything contrary to International
Law or the Common Law of the realm.
4. Presumption that Legislature does not commit mistake

There is a strong presumption that Legislature is a good writer in its own field and does
not commit any kind of mistake. This means that every word given by Legislature in the
language of a statute has been used mindfully, intentionally and suitably. However, in
case of any mistakes in an enactment the court cannot cure the same. The remedy lies
with the Legislature by way of bringing an amendment to rectify the same. It is not for
the court to add or to amend the language, or by construction make up deficiencies which
are left in the Act.
5. Presumption that Legislature does not use superfluous words

It is presumed that every word in an enactment has been inserted at a proper place with a
definite object and as such, none of the words can be ignored. While construing a
provision, the presumption is always against the superfluity in a statute.9
8
C.S.T., M.P v Radhakrishnan, (1979) 2 SCC 249.
9
V Jagannadha Rao v State of AP, (2001) 10 SCC 401.
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6. Presumption that words used by Legislature bear ordinary meaning

It is presumed that Legislature has used each word in its ordinary and natural sense unless
otherwise is proved beyond doubt. Therefore, it is the duty of the court to first assign
plain and ordinary meaning to the words. However, if the result draw is absurd, the court
may look for other senses of the word like technical sense, legal sense etc.
7. Presumption that Legislature has knowledge of English grammar

Legislature opens its mind in the form of a language and the intention of Legislature is
therefore gathered from the language itself. English is the language used in enactments
and is presumed that Legislature is well conversant with the rules of English grammar
and as such the language used in an enactment is grammatically correct. Once the court is
sure that there are no grammatical errors in the provision and the language properly
represents the legislative intent, it may proceed to interpret the provision accordingly.
8. Presumption that Legislature knows law and judicial decisions

Legislature is presumed to know the law and judicial decisions as to interpretation of
words and language used in a statute. Therefore the court will proceed to construe a
language with the assumption that the Legislature was aware of existing statutes, the rules
of statutory construction and the judicial decisions.
9. Presumption as to re-enactment
There is a presumption that when Legislature reproduces the material of an earlier
enactment into a subsequent Act, then it intends that those repeated words shall mean the
same what they meant in the previous Act as settled by judicial construction. The court
therefore should be slow to overrule a previous decision on the interpretation of a statute.
10. Presumption that vested rights are preserved

The presumption is that public or private vested rights are not taken away by the
Legislature without compensation. The vested rights are deemed to be preserved. There is
a strong presumption against the taking away of a vested right by any fresh legislation.
Unless it is clearly shown that the Legislature has expressly intended to take away any
vested right, the vested rights are presumed no to be abrogated.
11. Presumption that Legislature does not intend what is inconvenient

It is presumed that the intention of Legislature is always fair and does not do anything
which is unreasonable. Legislature never intends to create any kind of inconvenience. As
such, no law should be so interpreted at to arrive at unreasonable results. A construction
by which inconvenience is caused should be avoided.
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12. Presumption that Legislature does not intend any alteration in existing law except what
it expressly declares
The presumption is that the intention of Legislature in enacting a statute is not to alter an
existing common law. But if such is the intention, the Legislature would clearly reveal it
in express words. Hence, unless it is specifically provided, a statute cannot be considered
to have the effect of introducing a change in the general law. In view of this presumption,
the ambiguous words of a statute are to be attributed such meaning which is in tune with
the common law.
13. Presumption against retrospectivity

Legislature is competent to legislate both prospectively and retrospectively. Retrospective
law means the law which is intended to be applied to pending proceedings also. Where
Legislature enacts a law having retrospective effect, it has to be so declared in
unequivocal terms. In the absence of such declaration, the law is deemed to be
prospective. There is a strong presumption against retrospectivity.
14. Presumption as to jurisdiction of courts

There is a strong presumption against ouster of jurisdiction of a civil court. It is only the
Legislature which can take away the jurisdiction of a court but unless such intention is
clear, the court cannot be deprived of its jurisdiction. However, ouster of jurisdiction of a
court should not be readily accepted. The presumption is that the court has jurisdiction
unless otherwise is proved beyond doubt. If a statute purports to exclude the ordinary
jurisdiction of a civil court, it must do so by express terms.
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Considerations – Certain aspects which require attention while construing a statute or any
provision thereof:-
1. Consideration of Absurdity
If the words of an Act are clear and precise, the court must follow them even though they
lead to absurdity. Courts must construe a section according to the plain meaning of the
language used, irrespective of consequences. The cardinal rule of construction of statutes
is to read the statute literally by assigning the words their ordinary, natural and
grammatical meaning. If such a reading leads to absurdity, the court may examine
whether the words are capable of bearing some othe3r meaning. When alternative
meaning is reasonably possible and by applying that meaning absurdity is removed, the
court may adopt that meaning. But the court cannot create an ambiguity when actually
there is none.
2. Consideration of Futility
Legislature is deemed to have enacted a law with a definite purpose in mind. The object
and purpose of law is to be achieved, therefore the law has to remain workable and
effective. An enactment cannot be rendered useless by putting a particular interpretation
on the language. It is well settled that in construing the provisions of a statute courts
should be slow to adopt a construction which tends to make any part of the statute
meaningless or ineffective; an attempt must always be made so to reconcile the relevant
provisions as to advance the remedy intended by the statute.
3. Consideration of Reasonableness
The first rule of construction of any enactment is to give the words their natural meaning.
If reasonable results are not derived, then some other interpretation is permissible. A
reasonable interpretation is preferred over that which produces unreasonable results.
Preference should be given to a reasonable meaning if provision is not plain. The court is
not competent modify the language of a section of the Act to make it reasonable. But
when the question is to choose one out of several meanings, then the question of
reasonableness becomes material and that construction should be accepted which leads to
reasonable results. The court must always lean to the interpretation which is reasonable
one, and discard the literal interpretation which does not fit in with the scheme of the Act
under consideration.
4. Consideration of Injustice
The intention of Legislature is not to cause inconvenience or injustice. But if injustice
flows from literal or grammatical construction, it cannot be a ground for disregarding the
meaning. Injustice, hardship or inconvenience is no consideration. However, unjust,
arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. If
there is a possibility of unjust results by one interpretation, the court may adopt
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alternative construction, if it is reasonably possible. Whenever the language of a

provision is susceptible to two constructions, one leading to obvious injustice, the courts
act upon the view that such a result could not have been intended and prefer that which
ends in the furtherance of the object of the statute rather than the one that would frustrate
it.
5. Consideration of Hardship
An argument based on an inconvenience and hardship shall be admissible only when the
meaning of the statute is obscure. Where the meaning of a statute is clear and explicit but
any hardship or inconvenience is felt, courts cannot help it. The court cannot legislate
under the garb of interpretation.
6. Consideration of Inconvenience
When the language is explicit, its consequences are irrelevant. Even if the results flowing
from unambiguous language are inconvenient, the court must enforce it. The argument of
inconvenience is admissible only when there is ambiguity in the language.
7. Consideration of Anomaly
When the text is clear and precise yet the anomalous results flow, the court cannot help it.
But when on a construction of a statute, two views are possible, one of which results in
an anomaly and the other does not, the court must adopt the latter.
8. Consideration of Consequences
When the language employed is plain and unambiguous, the same must be given effect to
irrespective of the consequences that may arise. If the language employed is reasonably
capable of more meanings than one, then the court will consider the consequences that
may flow from accepting one or the other of the interpretations.
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The Process of Interpretation
Salmond refers to 2 kinds of Interpretations:-
A. Grammatical Interpretation / Literal Construction

In case of grammatical interpretation, only the verbal expression of law is taken into
consideration and the courts do not go beyond what is expressed by words. The dictate of
words is known as literal legis. The grammatical or literal construction is totally confined
to the words or expressions used in the language of the statute and the consequences are
not in consideration. It remains firm on the letter of law even if injustice or hardship is
caused.
Limitations of Grammatical Interpretation
The following defects could cause failure of grammatical interpretation:
(i) Ambiguity
If the words used in the provision are imprecise and can reasonably bear meanings more
than one, then rule of literal or grammatical construction ceases to be sure guide to reach
real legislative intent. In such a case, the courts may step out of strict grammatical
interpretation and go behind the letter of the law to find the true intention of the
Legislature and may call in aid other well recognized rules of construction such as
legislative history, the basic scheme and framework of the statute as a whole, each
portion throwing light on the rest, the purpose of legislation, the object sought to be
achieved and the consequences that may follow from the adoption of one in preference to
other possible interpretation. The court would then adopt the interpretation which
advances the object of law.
(ii) Inconsistency
The different sections of the enactment may be inconsistent with each another. Due to
this, either their meaning is nullified or one section loses its effect. In such a case, the
courts are duty bound to find out the true intention of the Legislature but the same may
not be possible through grammatical interpretation.
(iii) Deficiency in the Act itself
There may be some lacuna in the law itself which may not allow the whole meaning to be
expressed. Such a defect can be remedies only by recourse to logical interpretation.
However, the omission in the law must be such as to make it incomplete logically.
B. Logical Interpretation
Logical interpretation lays more emphasis on deriving the true spirit of law i.e. Sententia
legis, even by travelling beyond what words reflect. If the words used in the language of
a statute are unable to bring out the intention of the Legislature, the courts are at liberty to
depart from the letter of the law in search of true intention.
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Classification of Statutes
A statute is the will of the legislature. Indian statute is an act of the Central or State
Legislature. Statutes include Acts passed by the Imperial or Provincial Legislature in Pre-
independence days as well as regulations. Statutes generally refer to the laws and regulations of
every sort, every provision of law which permits or prohibits anything.
A statute may be classified with reference to its duration, nature of operation, object and
extent of application.
The classification of statutes with reference to the basis of duration is as follows:
• Perpetual / Permanent statutes;

• Temporary statutes.
The perpetual or permanent statutes fix no time limit for the life of the enactment. Such act
remains in force until it is repealed either expressed or implied. E.g. MRTP Act, 1969 has been
in life up to the enactment of Competition Act, 2002. This Act repealed the MRTP Act.
The temporary statutes are for a short period or for a specified period. The enactment will lapse
after the expiry of the specified period. E.g. the ordinance passed by the President. Ordinance
has been passed by the President when the Houses are not in session and it is in urgent nature the
President promulgates the ordinance.
The classification of statutes with reference to nature of operation is as follows:
• Prospective statutes;
• Retrospective statutes;
• Directory statutes;
• Mandatory statutes.
A statute which operates upon acts and transactions which have not occurred when the statutes
takes effect, that is which regulates the future is a prospective statute.
Every statute takes away or impairs vested rights acquired under the existing laws or creates a
new obligation into a new duty or attaches a new disability in respect of transactions or
considerations already passed are deemed retrospective or retroactive statute.
A directory statute is generally affirmative in its terms, recommends a certain act or omissions,
but imposes no penalty on non observance of its provisions.
A mandatory statute is one which compels performance of certain acts and directs that a certain
thing must be done in a certain manner or in certain form. These types of statutes are imperative
statues which are often negative or prohibitory in its terms and make certain acts or omissions
absolutely necessary and subject a contravention of the provisions to a penalty. When the statute
is passed for the purposes of enabling something to be done and prescribes the formalities which
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are essential to the validity of the things which are done are called imperative or absolute, but
those which are not essential and may be disregarded without invalidating the things to be done
are called directory statutes. Imperative statutes must be strictly observed. Directory statute
may be substantially complied with.
The classification of statutes with reference to objective is as follows:
• Codifying statutes;
• Consolidating statutes;
• Declaratory statutes;
• Remedial statutes;
• Enabling statutes;
• Disabling statutes;
• Permissive statutes;
• Prohibitory statutes;
• Penal statutes;
• Taxing statutes;
• Explanatory statutes;
• Curative or validating statutes;
• Repealing statutes;
• Amending statutes.
The codifying statutes are the ones which codifies the law, or in other words, which purports to
state exhaustively the whole of the law upon a specific subject. The code contains the pre-
existing provisions in different statutes on the subject as well as the common law on it. E.g. the
Hindu Succession Act, 1956
The consolidating statutes are the ones which consolidate the law on a particular subject at one
place; it collects all statutory enactments on a specific subject and gives them the shape of one
statute with minor amendments, if necessary. E.g. The Law of Property Act, 1925 of England
consolidated the Acts of 1922 and 1924.
The declaratory statutes are the ones made to remove doubts either in the common law or in the
statutory law. E.g. the Income Tax (Amendment) Act, 1985, added explanation 2 to S 40 of
Income Tax Act, 1961.
The remedial statutes are the one whereby a new favor or new remedy is conferred. The main
object of passing such a statute is to make improvements in the enforcement of one’s rights or
for redress of wrongs and remove defects or mistakes in the former law. Another synonymous
expression is socio-economic legislation. E.g. Consumer Protection Act, Maternity Benefits Act,
1961 etc…
The enabling statutes are which enlarges the common law where it is too strict or narrow and it
makes a lawful to do something which would not otherwise be lawful. E.g. Advocates Act, 1961.
The disabling statutes restrict or cut down rights existing at common law.
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The permissive statutes allow certain acts to be done without commanding that they are
performed whereas the prohibitory statutes forbid the doing of certain things.
The penal statutes are the ones which punish certain acts or wrongs and may be in the form of a
comprehensive criminal code or a larger number of sections providing punishments for different
wrongs. E.g. Indian Penal Code, 1860, Arms Act, 1959 etc…
The taxing statutes are the ones which impose taxes on income or certain other kinds of
transaction. It may be in the form of income tax, wealth tax, sales tax, gifts tax etc.
The curative statute is otherwise called as validating statute. It is passed to cure defects in the
prior law and too validate legal proceedings, instruments or acts or public and private
administrative powers which in the absence of such statute would be void for want of conformity
with existing legal requirements but which would have been valid if the statute has so provided
at the time of enacting. It is also called as explanatory statutes.
A repealing statute either expressly or by necessary implication revokes or terminates another

statute.
The amending statute makes and operates to change the original law so as to effect an
improvement or more effectively carry out the purpose for which the original law is passed.
The classification of statutes with reference to extent of application is as follows:
• Public statutes;
• Private statutes.
A public statute is the one which relates to a matter of public policy. Such a statute may be
general, local or personal in nature.
A private statute concerns with the matters which are individual in nature or is related to a body
which has no public consequence.
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Basic Rules of Interpretation
There are 3 widely accepted and adopted basic principles in interpretation of statutes which runs
across the process end to end, namely;
A. Intention of the Legislature (LITERA LEGIS & SENTENTIA LEGIS)

B. Statute must be read as a whole in its context (EX VISCERIBUS ACTUS)
C. Statute to be construed to make it effective and workable than null (UT RES MAGIS
VALEAT QUAM PEREAT)
And every principle and rule of interpretation and construction of statutes are in furtherance on
the basis of certain fundamental principles, namely;
CONSTRUCTION EXVISCERIBUS ACTUS – connotes that every part of statute should be

considered with reference to context, and at the same time it is also duty of the Court to
determine the question while looking at the scope and purpose of the Act and by examining the
relation of that provision with the objects sought to be achieved by such enactment. As cited in
Pyare Lal Tandon V State of UP.10
JUS DICERE, NON JUS DARE - To declare the law, not to make it; the duty of the court is to
expound the law, not to make it.
LEX NIL (Or NIHIL) FRUSTRA FACIT – The Law does nothing in vain.
VERBIS LEGIS NON EST RECEDENDUM – From the words of the law there must be no
departure.
VERBIS STANDUM UBI NULLA AMBIGUITAS – One must abide by the words where there
is no ambiguity.
LOQUITOR UT VULGUS – Court should interpret / construct according to the common

understanding and acceptation of the terms.
10
AIR 1993 All 118, 119.
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Intention of the Legislature ((LITERA LEGIS & SENTENTIA LEGIS)
The Legislature enacts the law with a definite object in its mind which is called the ‘intention’ of
the Legislature. The Legislature expects that the law enacted by it shall be understood by the
courts in its true spirit and shall be administered in accordance with the intention with which the
statute has been framed so as to advance the purpose of the statute.
The Legislature opens its mind the form of certain language and it is presumed that precise
words and clear language has been employed to express themselves. Therefore, the legislative
intent must be primarily gathered from the language itself.
The function of the court is only to expound and not to legislate. It is the duty of courts to
discover and act upon the true intention of Legislature and essence of law lies in its spirit.
Attention should be paid to what has been said as also to what has not been said.
In Sussex Peerage case11, it was observed that, if the words of a statute are themselves precise
and unambiguous, then no more can be necessary than to expound those words in their natural
and ordinary sense.
In Nelson Motis v Union of India12, it was observed that when the words of a statute are clear,
plain or unambiguous, i.e., they bear only one meaning, the courts are bound to give effect to that
meaning, without looking into consequences thereof.
In District Mining Officer v Tata Iron and Steel Co. 13 , it was observed that if a statutory
provision is open to more than one interpretation the court has to choose that interpretation
which represents the true intention of the legislature.
In Mithilesh Singh v Union of India14, it was held that there is a presumption that Legislature
inserted every part of the statute for a definite purpose and as such, rejection of words as being
inapposite surplus to be avoided.
In State of Jharkhand v Govind Singh15, it was held that the elementary principle of interpreting
a statute is to gather the sentential legis of the Legislature. However, abundant precaution has to
be taken while striving for Sententia legis and the language should not be twisted or strained.
The judges are not at liberty to add or take way from or modify the letter of law simply because
they believe that the true meaning is not completely or correctly expressed by it.
11
( 1844) 11 Cl & Fin 85 (HL).
12
AIR 1992 SC 1981.
13
AIR 2001 SC 3134.
14
(2003) 3 SCC 309.
15
(2005) 10 SCC 437.
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In Thakkar Shipping Private Limited v Commissioner of Customs (General)16, S 129 D (1) of

the Customs Act, 1962, provide that the Committee of Chief Commissioners of Customs may by
order direct the Commissioner to apply to the Appellate Tribunal for determination of such
points arising out of the decision or order of the Commissioner or the Adjudicating Authority, as
may be specified by the Committee of Chief Commissioners of Customs in its Order. S 129 D
(4) of the Act provides that where an application is made by the Commissioner to the Appellate
Tribunal in pursuance of an order u/S 129 (D) (1), such application shall be heard by the
Tribunal as if it were an appeal made against the decision or order of the Adjudicating Authority,
and the provisions regarding appeals u/S 129 A to the tribunal, in so far as they are applicable,
would be applicable to such application. The Supreme Court held that the provisions of S 129 A
(5), empowering the Tribunal to condone the delay and admit an appeal filed beyond the
prescribed period, would also apply, as the Court must give effect to the purpose and object of S
129 D (4).
In Magor and St. Mellons Rural District Council v New Port Corporation 17, the courts are
waned that they are not entitled to usurp legislative function under the disguise of interpretation.
16
(2012) 12 SCC 189, p. 195.
17
(1951) 2 All ER 839 (HL).
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Statute must be read as a whole in its context (EX VISCERIBUS ACTUS)
The meaning of this maxim is that every part of the Statute must be construed within the four
corners of the Act. No provision should be interpreted in isolation. Wherever the language of a
provision is ambiguous and open to alternative constructions due to uncertainty of meaning of
the words used therein, the provision has to be read as a whole in its context. It is not permissible
to omit any part of it and the construction of a section should be made of all parts together.
Legislature, while enacting the law, is presumed to have used precise words and clear language
to express themselves and to have taken all precautions to ensure that no ambiguity remains.
Therefore, while construing a provision, the language should be read as it is and it should not be
strained to show an ambiguity therein.
In Kehar Singh v State18, the Supreme Court observed that the words and sections like men do
not have their full significance when standing alone because like men they are better understood
by the company they keep.
In Union of India v Mamta Anurag Sharma19, the respondent belonged to the IPS of West
Bengal Cadre, married to an IPS officer of Andhra Pradesh Cadre, sought for transfer to AP
which was not considered. She therefore moved the High Court of AP by filing Writ Petition,
which was allowed. On appeal before Supreme Court, it examined the entire scheme of transfer
policy under which respondent had sought transfer to AP cadre, including its preamble and
observed that the High Court has not taken into consideration the preamble of aforesaid transfer
policy which specifically provided that the transfer of any spouse of All India Service Officers
should not be allowed to Home State and since the Home Stat3e of respondent is AP, there is no
question of directing the Central Government to consider the case of respondent to transfer her to
AP IPS Cadre. The order of AP High Court was set aside.
In O.P. Singla v Union of India20, Supreme Court construed the proviso to Rule 7 of Delhi
Higher Judicial Services Rules, 1970, in the light of Rule 8 of these Rules. The Rule 7 deals with
recruitment by promotion and direct recruitment. The proviso attached to this rule says “provided
that not more than one third of the substantive posts shall be filled by direct recruit.” If the
language of this proviso is examined in isolation, it does not provide a quota of direct recruits,
instead imposes a maximum ceiling of one third of substantive posts that could be filled by direct
recruitment proves. This proviso was interpreted by the court taking help from rule 8, which lays
down that the seniority of direct recruitees vis-à-vis promotes shall be determined in order of
rotation of vacancies reserved for both categories i.e. direct recruitees and promotes, by rule 7. In
the light of rule 8, it was held that proviso of rule 7 truly says that one third of substantive posts
must be reserved for direct recruits.
18
AIR 1988 SC 1883.
19
2001 III CKR 600 SC.
20
(1984) 4 SCC 450.
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In Poppatlal Shah v State of Madras21, the Supreme Court interpreted the word ‘sale’ used in
Madras General Sales Tax Act, 1939 and held that the word was laying stress on the element of
transfer of property by way of sale and therefore if only a contract of sale has been entered into
within the Province of Madras, then it does not constitute the sale within the meaning of this
term under the Act because actual transfer of property has not taken place. In view of this, sales-
tax cannot be levied. In arriving at such a conclusion, the Court referred to the title, preamble,
definition and other provisions of the statute, as also subsequent amendments made in the statute.
The Court observed that it is settled principle of construction that all constituent parts of the
statute are taken together and each word, phrase or sentence is to be considered in the light of
general purpose of the Act itself.
In Rupak Kumar v State of Bihar22, the Supreme Court held that from a conjoint reading of
sections, 7, 10 and 16 of Prevention of Food Adulteration Act, 1954, it will appear that the Act is
intended to prohibit and penalize the sale of any adulterated article of food, and hence the term
‘store’ will take color from the context and the collocation in which it occurs in S7 and S16 of
the Act. Therefore, ‘storage’ of an adulterated article other than fro sale would not fall within the
purview of S16 of the Act.
In Raheja Universal Limited v NRC Ltd. & Ors23, the Supreme Court held that all the provisions
of the Sick Industrial Companies (Special Provisions) Act, 1985, have to be read conjointly.
Every word and expression used by the Legislature has to be given its proper and effective
meaning, as the Legislature uses no expression without purpose or meaning. Hence, the Supreme
Court held that sections, 22, 22A, 26 and 32 have to be read and construed jointly and, so
construed, the common thread of legislative intent appears to be to treat this law as a special law
and to ensure its effective implementation with utmost expeditiousness.
In Union of India v Sheo Shambhu Giri 24 , the Supreme Court held that the expression
‘transships’ occurring u/S 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985,
must necessarily be understood in the context of the scheme of the section, and the preceding
expressions ‘imports into India’ and ‘exports from India’, to mean only transshipment for the
purpose of either import into India or export out of India.
21
AIR 1953 SC 274.
22
(2014) 4 SCC 277 p.281.
23
(2012) 4 SCC 48 pp 172 to 180.
24
(2014) 12 SCC 692, p.694.
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Statute to be construed to make it effective and workable than null (UT RES MAGIS
VALEAT QUAM PEREAT)
The courts strongly lean against a construction which reduces the statute to futility. A statute or
any enacting provision therein must be so construed as to make it effective and operative on the
principle expressed in the maxim ‘UT RES MAGIS VALEAT QUAM PEREAT25.
It is an application of this principle that courts while pronouncing upon the constitutionality of a
statute start with a presumption in favor of constitutionality and prefer a construction which
keeps the statute within the competence of the Legislature. The importance of the principle can
be judged from the fact that there is hardly any reported decision, where a statute may have been
declared void for sheer vagueness, although theoretically it may be possible to reach such a
conclusion in case of ‘absolute intractability of the language used26’, or when ‘it is possible to
resolve the ambiguity27,’ i.e. when the language is absolutely meaningless28.
The courts will therefore reject that construction which will defeat the plain intention of the
Legislature even though there may be some inexactitude in the language used. If the choice is
between two interpretations, the narrower of which would fail to achieve the manifest purpose of
the legislation wherein a construction would reduce the legislation to futility, must be avoided.
In K.B. Nagpur, M.D (Ayruvedic) v Union of India 29 , the context of S 7(1) of the Indian
Medicine Central Council Act, 1970, which provides that the President, Vice President or
member of Central Council shall continue until his successor shall have been duly elected or
nominated. The Supreme Court, while repelling a challenge to the provision made u/Arts. 14 &
16 of the Constitution, observed that the provision was made by the Parliament to take care of
situations when election to the aforesaid posts is delayed for various reasons and upheld the
provisions of S 7(1) of the Act applying that a statute is to be construed so as to make it effective
and operative as expressed in the principle UT RES MAGIS VALEAT QUAM PEREAT.
In Avtar Singh v State of Punjab30, S 39 of Electricity Act, 1910 provided that an accused found
guilty u/this section must be punished u/S 379 of Indian Penal Code. S 50 of this Act provided
the procedure. The appellant was convicted for theft of electricity u/S 39 and the respondent
preceded against him u/S 379 of IPC. The appellant contended that he could not be convicted u/S
39 as the procedure for conviction as required by S 50 was not followed. The respondent
contended that punishment u/S 379 of IPC has to be imposed in accordance with the provisions
of S 39. The Supreme Court, applying this principle, held that the offence is against the
Electricity Act and not against IPC; hence S 50 must have been followed. The Court held that the
25
CIT v Teja Singh AIR 1959 SC 352, p.356.
26
Salmon V Duncombe (1886) 11 AC 627, p.634, PC.
27
K. A. Abbas v Union of India, AIR 1971 SC 481, p.496.
28
Tinsukhia Electric Supply Co. Ltd. v. State of Assam, AIR 1990 SC 123 p. 152.
29
(2012), 4 SCC 483, p. 490.
30
AIR 1965 SC 666.
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consequence would have been that the accused convicted u/S 39 of the Act would have been
punished u/S 379 of IPC without following the procedure for conviction laid down in S 50 of
Electricity Act and in result; S 50 would have become ineffective, inoperative and futile.
In M. Pentiah v Veeramallappa Muddalla31, the Hyderabad District Municipalities Act, 1956

repealed an earlier Act on same subject and by S 320 continued the committees functioning
under the repealed Act till the first meeting of the committee constituted under the new Act. By S
16(1) the Act provided: ‘Every general election requisite for the purpose of this Act shall be held
by the Collector in the manner prescribed within three months before the expiry of the term of
office of the members of the committee as specified u/S 34’. The term of three years specified
u/S 34 was inapplicable to a committee continued u/S 320 for such a committee was to continue
till the first meeting of the committee constituted under the Act. The argument on the language
of S 16, therefore, was ‘that the Collector’s power to hold a general election is confined to S
16(1) and, as in the case of the members of the committee deemed to have been constituted under
the Act the second limb of the section cannot apply and as the Collector’s power is limited by the
second limb of the section, the Collector has no power to hold the first general election under the
Act. The Court observed that ‘if this interpretation be accepted, the Act would become a dead
letter and the obvious intention of the Legislature would be defeated. Such a construction cannot
be accepted except in cases of absolute intractability of the language used. While the Legislature
repealed the earlier Act with an express intention to constitute new committees under the old Act
perpetuates itself indefinitely. S 16(1) was therefore held inapplicable to the first election after
the Act came into force and was construed as confined to subsequent elections.
In State of Gujarat & Anr. v Justice R. A Mehta (Retd.) & Ors32, the Supreme Court held that ‘
the doctrine of purposive interpretation may be taken recourse to for the purpose of giving full
effect to the statutory provisions, and the Courts must state what meaning the statute should bear
rather than rendering the statute a nullity. A statute must be construed in such a manner as to
make it workable. In light thereof, while interpreting S 3(1) of the Gujarat Lokayukta Act, 1986,
which provides that the Governor shall appoint the Lokayukta ‘after consultation with Chief
Justice of the High Court’, the Supreme Court held that the opinion of the Chief Justice has to be
given primacy and can be overlooked only for cogent reasons.
In ITO, Mangalore v M. Damodhar Bhat33, the Income-tax Act, 1961 repealed the predecessor
Act of 1922 and provide in S 297(2) (j) that notwithstanding the repeal ‘any sum payable by way
of income-tax, super-tax, interest, penalty or otherwise under the repealed Act may be recovered
under this Act, but without prejudice to any action already taken for the recovery of such sum
under the repealed Act’. In spite of this provision the Mysore High Court held that the group of
Ss 220 – 234 of 1961 Act which deal with collect & recovery of tax could not be applied for
31
AIR 1961 SC 1107, p. 1111.
32
(2013) 3 SCC 1, pp. 47, 48, 51.
33
AIR 1969 SC 408, p.412.
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recovery of tax assessed under the old Act. The Supreme Court reversed this judgment and
observed that the effect of the High Court Judgment was to nullify s 297 (2) (j) and to declare it
to be of no consequence and that an interpretation leading to such a startling result should be
avoided as it is opposed to all sound canons of construction. The Court held that the procedure of
the new Act for recovery of tax will apply mutatis mutandis for recovery of tax assessed under
the repealed Act.
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General Rules / Principles of Interpretation OR Kinds of Construction
1. The Literal / Grammatical Rule

2. The Mischief Rule
3. The Golden Rule
4. The Beneficial / Liberal Rule
5. The Harmonious Rule
6. Strict Rule
Literal / Grammatical / Natural / Primary / Strict / Popular Rule
This is the primary and principal rule to apply in interpretation of a statute. According to this
rule, words, phrases and sentences are to be given their plain and ordinary meaning. Where the
language used by the legislature is plain, unambiguous and admits one meaning only, it must be
accepted and enforced however harsh, unjust and absurd the result may be.
The rule of literal construction therefore demands strict adherence to ordinary and natural
meaning of the words used in the language. This rule does not leave any avenue open for the
courts to adopt any other hypothetical construction simply to draw the supposed intention of
Legislature. The basis of this rule is the presumption that the Legislature has used appropriate
and specific words to open its mind.
JUS DICERE, NON JUS DARE - To declare the law, not to make it; the duty of the court is to
expound the law, not to make it.
The duty of the court is to expound the law as it stands, giving due respect to the letter of the law
and shall not construe words contrary to their ordinary and literal meaning.
The interpretation of a statute shall be principally either made by applying the literal or
grammatical rule (litera scripta / litera legis) or logically by deriving from the intent of the
legislature (sententia legis). The court should give technical meaning to a technical word.
In Crawford V Spooner34, the Privy Council reinstated that, “the words of the statute at first
should be understood in their natural, ordinary, popular, plain sense and phrases and sentences
are construed according to their grammatical meaning, unless that leads to some absurdity or
unless there is something in the context or in the object of the statute to suggest the contrary.
In Maqbool Hussain V State of Bombay35, the appellant, a citizen of India, on arrival at an

airport did not declare that he had brought gold with him. Gold, found in his possession during
search in violation of government notification, was confiscated u/s 167 (8), Sea Customs Act,
1878 and was charged u/s 8, FERA, 1947 as well. The appellant’s pleading that his trial u/ FERA
34
(1846) 4 MLA 179, at p. 181 (PC).
35
AIR 1953 SC 325.
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was in violation u/Art 20(2) of COI amounting to double jeopardy as he was already punished by
way of confiscation of the gold. The Supreme Court held that the Sea Customs Authority is not a
court or a judicial tribunal and the adjudging of confiscation or the increased rate of duty of
penalty u/Sea Customs Act was not a prosecution and the trial u/FERA was valid.
In Rananjaya Singh V Baijnath Singh 36, the Election Tribunal set aside the election of the
appellant u/s 123 (7) of Representation of the People Act, 1951 on the grounds that the appellant
had employed more persons than prescribed for electioneering purposes and that the salary of
these persons exceeded the maximum election expenditure permissible under the law. The
contention of the appellant was that all those persons who had campaigned for him in the
election were in the employment of his father and was thereby receiving salaries from his father
by virtue of their employment. As far as he was concerned, he had not made payments to them
exceeding the permissible limit. The Supreme Court, following the grammatical interpretation
said the meaning of s 123 (7) was quite clear and, therefore as far as these campaigners were
concerned they were merely volunteers campaigning the appellant.
In Ramavatar V Assistant Sales Tax Officer37, the question before the court was whether sale of
betel leaves was subject to sales tax. The Supreme Court rejected the contention and held that
betel leaves could not be given the dictionary, technical or botanical meaning when the ordinary
and natural meaning is clear and unambiguous. Being a word of everyday use it must be
understood in its popular sense by which the people are conversant with it as also the meaning
which the statute dealing would attribute to it. Its sale is, therefore, liable to sales tax.
In Motipur Zamindary Co. Pvt. Ltd. V State of Bihar38, the question was whether sugarcane fell
within the term green vegetables in Entry 6 of the Schedule and as such no sales tax could be
levied under the Bihar Sales Tax Act, 1947 on its sale. The Supreme Court held that while
dealing with a taxing statute the natural and ordinary meaning of a word should be the correct
meaning. In this case, the word vegetables should be interpreted in its natural and popular sense
and that dictionary meaning is not of such help since vegetables normally mean which can be
grown in a kitchen garden to be used for the table, that is to say, to be eaten during lunch or
dinner and sugarcane definitely does not fall under this category.
In Municipal Board V State Transport Authority, Rajasthan39, the location of a bus stand was
changed by the RTA. An application could be moved u/s 64-A of the Motor Vehicles Act, 1939
to the STA against this order within 30 days from the date of order of the RTA. In this case,
however, the application was moved to the STA after the expiry of 30 days from the date from
the knowledge of the order passed by the RTA. The Supreme Court observed that whenever
language of a statute is plain and unambiguous, meaning should be given to it irrespective of the
36
AIR 1954 SC 749.
37
AIR 1961 SC 1325.
38
AIR 1962 SC 660.
39
AIR 1965 SC 458.
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consequences. While interpreting statutes of limitation, equitable considerations are out of place
and clear grammatical meaning of the enactment should stand.
In Ranjit Udeshi V State of Maharashtra40, the appellant was convicted u/s 292, IPC by the
High Court for selling an obscene book the sale of which was banned by GOI. The Supreme
Court, rejected the contention of the appellant about absence of mens rea and held that the
knowledge of obscenity was not an essential element of the offence u/s 292, IPC. The section is
plain and its meaning unambiguous, therefore the court must give natural meaning to the words
used in the section.
In Dunlop India Ltd. and Madras Rubber Factory Ltd. v Union of India41, the court observed
that when a word acquires a particular meaning in the trade or commercial circle, that meaning
becomes the popular meaning in that context and therefore should be normally accepted.
In Sterling Foods v State of Karnataka42, applying the principle of technical words in technical
sense, Supreme Court held that after dressing i.e., cutting of heads and tails, peeling, cleaning,
freezing and packing etc. the shrimps, prawns and lobsters do not become different articles.
In State of Punjab v Inder Singh43, it was observed that when a word has acquired a special
meaning in law, the dictionaries cease to the helpful anymore in interpreting that word. The
word, ‘deputation’ has different meaning in service law and dictionary meaning is of no help.
Effects of Literal Rule
1. In case of wide language
One consequence of the rule of literal construction is that wide language should be given a wide
construction however restricted the scope of previous legislation dealing with the same matter
may have been.
In Blyth v Blyth44, the word ‘satisfied’ in the phrase provided u/Matrimonial Causes Act, 1950,
the court being ‘satisfied’ was held to mean precisely what it said and not to require the court ‘to
be satisfied beyond a reasonable doubt’.
2. In case of narrow language
The literal construction will preclude the undue extension of narrow language. The phrase, “any
defense arising under a contract”, referred in S1 (i) of the Law Reforms (Contributory
40
AIR 1965 SC 881.
41
AIR 1977 SC 597.
42
AIR 1986 SC 1809.
43
JT 1997 (8) SC 466.
44
1966, AIIER 524.
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Negligence) Act, 1955 was held to mean only to some express clause in a particular contract
which governs the liability of the parties in the event of one of the parties being at fault.
3. Not to supplement omissions
Nothing can be added to a statute by way of interpretation i.e. omissions cannot be

supplemented. It can be done only if there are adequate grounds to justify the inference that the
legislature intended something which it omitted to express.
4. Every word to be given a meaning
A construction which would leave without effect any part of the language of a statute will
normally be rejected.
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The Mischief Rule
The main aim of the rule is to determine the "mischief and defect" that the statute in question has
set out to remedy, and what ruling would effectively implement this remedy. In applying the
mischief rule, the court is essentially asking what part of the law did the law not cover, but was
meant to be rectified by Parliament in passing the bill.
The rule was first set out in Heydon’s Case in 1584.
In this case, certain lands were the copyholds of a college. The warden of the college granted a
part of the lands to W and his son for their lives and the rest to S and G at the will of the Warden.
Later the Warden granted all the lands to Heydon on lease for 80 years. Thereafter the lands were
surrendered with the college itself to the Crown. The Attorney General initiated action against
Heydon as an intruder on the lands. The Court of Exchequer considered the scope of Statute 31
Henry VIII. The intent of the Act was found to be ‘to avoid doubling of estate in the same land.’
In the instant case one existing lease was continuing.
In this case the court ruled that there were four points to be taken into consideration when
interpreting a statute:
For the sure and true interpretation of all statutes in general (are they penal or beneficial,
restrictive or enlarging of the common law), four things are to be discerned and considered:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not provide?
3. What remedy the Parliament hath resolved and appointed to cure the disease of the
common wealth?
4. The true reason of the remedy.
The core principle is that the office of all the judges shall always make such construction to
suppress the mischief and advance the remedy and to suppress subtle inventions and
evasions for continuance of the mischief, and pro privoto commodo, and to add force and life
to the cure and remedy, according to the true intent of the makers of the Act, pro bono
publico.45
Therefore, in this case, it was held the doubling of estate (the copyhold for the two times and the
lease for 80 years) will be against the true meaning of the Act.
In Smith v Hughes46, the question of interpretation was with reference to S1 (1) of the Street
Offences Act, 1959. It was whether prostitutes who attracted the attention of passers-by from
balconies or windows were soliciting ‘in a street’ was in question. It was held that the Act intend
to clean up the streets, to enable people walking along the streets without being molested or
solicited by common prostitutes and therefore the precise place from which a prostitute
addressed her solicitations to somebody walking in the street became irrelevant.
In Gorman v Standen 47 , the interpretation to be given was about the scope of the phrase
‘assisting in the management of a brothel’ u/S 33 of the Sexual Offenders Act, 1956. A step
45
Maxwell, Interpretation of Statutes, 12th Edn. P.40.
46
1960, 1WLR 830.
47
1964, 1 QB 294.
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daughter lived in a brothel managed by her step mother and had a part of the sway of what goes
on there. The court held that it was possible to say that the step daughter was ‘assisting the
management of a brothel’.
In Bengal Immunity Company v State of Bihar, the appellant, a dealer registered u/the Bengal
Finance (Sales Tax) Act, had neither an office nor a manager or an agent in Bihar. The Bihar
Sales Tax Authorities maintained that all sales in West Bengal or any other State under which the
delivery of goods took place in the State of Bihar, as a direct result of the wale for the purpose of
consumption in that State, were liable to Bihar Sales Tax under Art 286 of COI. The Supreme
Court observed that to arrive at the true intention of the legislature, an enactment should be
intended to suppress and the provisions of the statute. So interpreted, the majority of judges held
that explanation and Art 286 (2) dealt with different subjects. The explanation was concerned
with explaining an outside sale or purchase and was a provision independent of art 286 (1) (a)
whereas Art 286 (2) took note of inter-state character of sales or purchases which was an entirely
different matter. Therefore, both the aforesaid clauses did not relate to the same subject and it
was incorrect to say that the one was a general rule and the other a particular rule on the same
subject. It was felt that a lot of confusion prevailed because of multiple taxation by different
provinces on the principle of territorial nexus which hindered smooth inter-state trade and
commerce. The Supreme Court observed that it was to cure this mischief of multiple-taxation
and to preserve the free flow of inter-state trade and commerce in the UOI regarded as one
economic unit without any provincial barrier that the Constitution makers adopted Art 286.48
In RMD Chamarbaugwala v Union of India49, the S 4 and 5 of Prize Competitions Act, 1955
and Rules 11 and 12 made there under was in question and was contended that the said
provisions encroach upon the fundamental right to carry on business guaranteed u/Art 19(1) (g).
further, the phrase prize competition as defined in S2 (d) of the Act would include not only
competitions in which success depends on chance but also those in which it would depend to a
substantial degree on skill and, therefore, as the impugned law constituted a single inseverable
enactment, it must fail in entirety in respect of both kinds of competitions. Rejecting this
contention, the Supreme Court held that S2 (d) should be construed keeping in mind the
historical background of the Act and the mischief that was intended to be suppressed. Having
taken these factors into consideration there can be no doubt that the State Legislatures moved the
Parliament to enact a legislation u/Art 252 with the sole object of regulating and controlling prize
competitions of a gambling nature. If there been an intention on the part of the State Legislatures
to regulate even those competitions in which success lay substantially on skill, they could
themselves have effectively done so without resorting to the special jurisdiction u/Art 252.
Further, the use of the word control in the resolutions of the State Legislatures would not seem
appropriate if it was intended that Parliament should legislate on competitions involving skill.
Therefore, it was held that the competitions which were sought to be controlled and regulated by
the Act are only those in which success does not depend to any substantial degree of skill.
In Kanwar Singh v Delhi Administration50, the Supreme Court suggested the necessity of going
beyond the popular meaning of words in some cases like penal statutes. The pure literal meaning
might be found not sufficient ‘to suppress a mischief’ and ‘advance the remedy’. Therefore, in
such cases the court may even depart from the dictionary meaning or popular meaning of words.
48
Goodyear India Ltd. V State of Haryana AIR 1990 SC 781.
49
AIR 1955 SC 628.
50
AIR 1965 SC 871.
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For the purpose of S 418 of Delhi Municipal Corporation Act, 1957, in the case of cattle
‘abandoned’ it was held to mean ‘let loose’ in the sense of ‘left unattended’.
In Ranjit Udeshi V State of Maharashtra51, the appellant was convicted u/s 292, IPC by the
High Court for selling an obscene book the sale of which was banned by GOI. The Supreme
Court, rejected the contention of the appellant about absence of mens rea and held that the
knowledge of obscenity was not an essential element of the offence u/s 292, IPC. The section is
plain and its meaning unambiguous, therefore the court must give natural meaning to the words
used in the section. Further, the mischief of sale of obscene literature was sought to be remedied
by the provision and, therefore, the interpretation given by the appellant was unacceptable.
In Glaxo Industries (I) Ltd. v Presiding Officer, Labour Court, Meerut52, it was observed that
the purpose of interpretation is to give effect to the intention of Legislature underlying the
statute. Hence, unless grammatical construction leads to absurdity, it has to be given effect to.
But if two constructions are possible, that construction should be accepted which advances the
intention of Legislature and remedies mischief.
51
AIR 1965 SC 881.
52
AIR 1984 SC 505.
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The Golden Rule

The Golden Rule is a modification of the principle of grammatical interpretation. Ordinarily the
court must find out the intention of the legislature from the words used in the statute by giving
them their natural meaning but if this leads to absurdity, repugnance, inconvenience, hardship,
injustice or evasion, the court must modify the meaning to such an extent and no further as
would prevent such a consequence. The rule is to solve all problems and is therefore, known as
the golden rule.
This rule suggests that the consequences or effects of an interpretation deserve a lot more
importance because these are clues to the true meaning of legislation. There is a presumption that
the legislature does not intend certain objects and any construction leading to any of such objects
deserves to be rejected. The court when faced with more than one possible interpretation of an
enactment is entitled to take into consideration the result of each interpretation in a bid to arrive
at the true intention of the legislature.
The rule is usually based on part of Becke v Smith53 wherein it was held that, ‘it is a very useful
rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to
the grammatical construction, unless that is at variance with the intention of the legislature to be
collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case
the language may be varied or modified so as to avoid such inconvenience but no further.
In Grey v Pearson54, Lord Wensleydale observed that, “the grammatical and ordinary sense of
the words is to be adhered to.”
According to Golden Rule, the court shall be strict in interpretation but modify the construction
where essential so as to avoid absurdity or inconsistency.
The rule was applied in this second sense in Sigsworth, Re, Bedford v Bedford55, where the
court applied the rule to section 46 of the Administration of Estates Act, 1925. This statute
required that the court should "issue" someone's inheritance in certain circumstances. The court
held that no one should profit from a crime, and so used the golden rule to prevent an undesirable
result, even though there was only one meaning of the word "issue". A son murdered his mother
and then committed suicide. The courts were required to rule on whom then inherited the estate:
the mother's family, or the son's descendants. There was never a question of the son profiting
from his crime, but as the outcome would have been binding on lower courts in the future, the
court found in favor of the mother's family.
In Lee v Knapp56, interpretation of the word ‘stop’ was involved. U/S 77 (1) of the Road Traffic
Act, 1960, a driver causing an accident shall ‘stop’ after the accident. In this case a driver
stopped for a moment after causing an accident and then moved away. Applying the golden rule
the court held that requirement of the section had not been followed by the driver as he had not
stopped for a reasonable period requiring interested persons to make necessary inquiries from
him about the accident.
53
1836 2 M&W 195.
54
1857 6 HLC 61.
55
1935 CH 89
56
1967 2 QB 442.
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In Wright v Ford Motor Co. 57 , the question of interpretation arose in connection with the
wording of S 155 (1) of the English Factories Act, 1961. “In the event of any contravention in or
in connection with or in relation to a factory or the provisions of this Act the occupier of the
factory shall be guilty of an offence.” it was held to be very wide. It would conflict with the
principle that a master is not vicariously liable for crimes of his servant. The clause was,
therefore, interpreted to make the employer liable only for those contraventions in which the
employees are not specifically made liable.
In R v Allen58, the defendant was charged with the offence of bigamy u/S 57 of the Offences
against the Person Act, 1861. The statute states ‘whosoever being married shall marry any other
person during the lifetime of the former husband or wife is guilty of an offence.’ Under a literal
interpretation of this section the offence would be impossible to commit since civil law will not
recognize a second marriage any attempt to marry in such circumstances would not be
recognized as a valid marriage. The Court applied the golden rule and held that the word ‘marry’
should be interpreted as ‘to go through a marriage ceremony’ and the defendant’s conviction was
upheld.
57
1967 1 QB 230.
58
1872 LR 1 CCR 367
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The Beneficial / Liberal Rule

If the words employed in a language are ambiguous and vague, then the court has to ascertain
their meaning depending upon the legislative intent. Such meaning may be narrow or wide. if the
wider meaning is assigned, it is called liberal interpretation or beneficent construction. The
purpose of beneficent construction is to advance the public good and prevent misuse of power.
There is always a purpose behind an enactment. The object and purpose of an enactment is to
cure certain evils prevailing in the society. Such statutes are reformative in nature and not
punitive. They are meant to bring in some social reform and are generally such statutes are called
‘remedial statutes’.
There are some statutes enacted with the object of promoting general welfare, to address certain
social, economic demands, as a security measure to stabilize and improvise the socio-economic
status of the society and such statutes are called as ‘welfare legislations’. E.g. Industrial Disputes
Act, The Employees’ Compensation Act, The Employees State Insurance Act, The Minimum
Wages Act, Consumer Protection Act, Maternity Benefit Act etc.
In Unichoyi v State of Kerala59, Minimum Wages Act, 1948 was in question before the Supreme
Court. It empowered the State Government to fix minimum wages in an industry. However, the
Act did not define what is minimum wage. The Act also did not provide for taking into
consideration the paying capacity of employer. It was challenged before the Supreme Court as
violative of Article 19 (1) (g), of Constitution. It was held that the Act is valid and being
beneficial piece of legislation must be construed in favor of workers.
In Jivabhai v Chhagan 60 , sub-section (2-A) inserted to S 34 of Bombay Tenancy and
Agricultural Lands Amending Act, 1952, was under challenge. Eviction of tenant by landlord
was made more difficult by inserting Ss (2-A). It was held that the amending Act is a beneficial
legislation and is meant to protect the rights of tenants. In case of any ambiguity in newly
inserted Ss (2-A), it shall be removed in favor of tenant.
In Manoharlal v State of Punjab61, S 7 of Punjab Trade Employees Act, 1949 was in question
which provides that the shops and establishments within the purview of this Act shall remain
closed on one day in a week. This provision was held not to be in violation of Art 19 (1) (g) of
the Constitution because this restriction was reasonable on fundamental right as it was necessary
for ensuring health and efficiency of workers.
In Sadhoo v Haji Lal Mohd Biri Works62, S 31 (2) (a) of Beedi and Cigar Workers (Conditions
of Employment) Act, 1966 was interpreted which provides that employees discharged, dismissed
or retrenched may appeal to Prescribed Authority. Supreme Court construed this provision
liberally and held that even an employee who has been terminated by stopping him to enter the
place of work could appeal to Prescribed Authority and there was no need of a written order of
termination.
59
AIR 1962 SC 12.
60
AIR 1961 SC 1491.
61
AIR 1961 SC 418.
62
(1996) 1 SCC 32.
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In Lucknow Development Authority v M K Gupta63, the definition of ‘service’ in Consumer

Protection Act, 1986 was interpreted by applying liberal construction. This definition did not
expressly include ‘housing construction’ before 1993, yet the Supreme Court, having regard to
the object of the Act, held that a complaint by consumer as to defect or deficiency in construction
activity against a private builder or statutory authority like Lucknow Development Authority
could be entertained.
In Bhagirath v Delhi Administration64, S 428 of Code of Criminal Procedure, 1973 was liberally
construed. This section directs that period of pre-conviction detention undergone by an accused
person during investigation, inquiry or trial of the same case shall be set off against term of
imprisonment imposed on him on such conviction. It was held that the provision was beneficent
provision and shall be applicable even to cases where sentence is imprisonment for life because
such a sentence is also imprisonment ‘for a term’ within the section.
63
AIR 1994 SC 787.
64
AIR 1985 SC 1050.
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The Harmonious Rule
The term harmonious construction would refer to such a construction by which harmony or
oneness amongst various provisions of an enactment is arrived at. When the words of a statutory
provision bear more than one meaning and there is a doubt as to which meaning should prevail,
then such meaning should be adopted by which the words best harmonize with the subject and
object of the enactment.
It is presumed that the Legislature has
i) enacted a law with a definite purpose,
ii) have used precise words to open their mind and have left no ambiguity in the
language of the enactment,
iii) all provisions of a statute are well composed and consistent with each other because
the Legislature is not supposed to contradict itself by providing conflicting
provisions.
Hence the statute should be construed in such a manner to avoid any repugnancy.
An inconsistency should neither be created nor be readily inferred. Where alternative
constructions are possible, that construction should be accepted by which consistency is achieved
and the construction leading to inconsistency should be rejected.
If there is an apparent inconsistency between two provisions of a statute, the same must be
resolved by the courts in such a manner that both conflicting provisions remain effective, in
harmony with each other. But when it is not possible to give effect to both the conflicting
provisions harmoniously, then head on collision should be avoided by holding that:
a. apparently conflicting provisions deal with separate situations, or
b. one conflicting provision merely provides for an exception of general rule contained in
the other provision. For this purpose, it is to be determined which of the two apparently
conflicting provisions is more general and which one is more specific and then to
construe the more general one as to exclude more specific.
This principle is expressed in two maxims, namely;
A. GENERALIA SPECIALIBUS NON DEROGANT
This maxim means that general things do no derogate from special things. The term
‘derogate’ means to take away merit or lessen the value. Thus, according to this maxim,
general things do not take away the merit of special things. Therefore, the general
provisions in a statute cannot be regarded as abrogating or controlling the special
provisions of that statute. If a special provision exists on certain matter, that matter shall
be governed by such special provision only and cannot be dealt with under general
provision. The special provision always overrides the general provisions of the Act but
such overriding effect is restricted to the extent of inconsistency between the two. Thus,
where there are provisions of special enactment shall prevail. Special provision on a
matter excludes the application of a general provision on that matter.
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B. GENERALIBUS SPECIALIA DEROGANT

This maxim means that special things derogate from general things. So, special
provisions in a statute control the general provisions. It can therefore be said that a
special provision on a matter excludes application of general provision and always
overrides the general provision but his overriding effect is restricted to the extent of
inconsistency between them.
In MSM Sharma v Shri Krishna Sinha65, the rule of harmonious construction was applied to
resolve conflict between Art 19 (1) (a) and Article 194 (3) of the Constitution of India. It was
held that the right of freedom of speech guaranteed u/Art. 19 (1) is to be read subject to the
powers, privileges and immunities of House of Legislature as declared u/Art 194 (3).
In Raj Krushna Bose v Binod Kanoongo66, S 33 (2) and S 123 (8) of Representation of Peoples
Act, 1951 were harmoniously construed by the Supreme Court. S 33 (2) provided that a
government servant may nominate or second a candidate contesting election. S 123 (8) of this
Act provided that government servant is not entitled to assist a candidate in an election in any
manner except by casting his vote. The apparent conflict between the two provisions was
resolved by the Supreme Court by invoking this rule. It was held that a government servant was
entitled to nominate or second a candidate seeking election to Legislative Assembly and to vote
but was forbidden from assisting such candidate in any other manner.
In Sirsilk Ltd. v Govt. of A.P.67 , S 17 (1), 17 (2) and 18 (1) of Industrial Disputes Act, 1947
were interpreted by application of rule of harmonious construction. S 17 (1) mandates that every
award of a Labour Tribunal has to be published by government within 30 days of its receipt. S 17
(2) provides that after such publication, the award becomes final. S 18 (1) provides that a
settlement between employee and workman shall be binding on parties to agreement. Now the
question was that where a settlement has been arrived at, after receipt of award of Labour
Tribunal by the government but before its publication, whether government was still required to
publish the award u/S 17 (1). It was held that only way of resolving the conflict between the two
provisions was to hold that a settlement becomes effective from the date of signing and by
settlement, industrial dispute comes to an end and therefore award becomes infructuous and
hence government cannot publish the award.
In Harish Chandra Hegde v State of Karnataka 68, the issue before the Supreme Court was
whether S 51 of Transfer of Property Act, 1882 was applicable in cases covered by S 4 and 5 of
Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands)
Act, 1978. It was held that the Act is enacted for improving the social and economic conditions
of weaker sections of the society, particularly those belonging to SC and ST category. The Act is
a special Act and would override the provisions of TP Act which is general Act. Hence, S 51 of
TP Act is not applicable to proceedings u/S 4 & 5 of Act.
65
AIR 1959 SC 395.
66
AIR 1954 SC 202.
67
AIR 1964 SC 160.
68
(2004) 9 SCC 780.
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Strict Rule
When any word of a statutory provision is susceptible to several meanings, then the court has to
determine what meaning it bears. It may be assigned a narrower meaning or a wider meaning
depending on the legislative intent. The process by which courts seek to ascertain the meaning of
legislation is called interpretation. But the art of construction varies from statute to statute. Some
statutes receive narrower interpretation whereas some receive wider interpretation. The former is
termed as strict interpretation and the latter is known as liberal interpretation.
When the words bear several meanings, it usually happens that one of the meanings is more
obvious and consonant with the popular use of the language. If this meaning is adopted, the
interpretation is called strict. Sometimes, court reject the natural and most known interpretation
in favor of another which conforms better to the intention of the Legislature thought it may not
fit in with the ordinary use of language. When that is done, there is equitable interpretation.
Rule of strict construction does not prevent the court in interpreting a statute according to its
current meaning and applying the language to cover developments in science and technology not
known at the time of passing of the statute.
Taxing and Fiscal Statutes
Taxing statutes are those which impose taxes on income or other kind of transactions. E.g. the
Income Tax Act, Gift Tax Act, Wealth Tax Act etc. The object of such statutes is to collect
revenue from people to run the government. Tax is the source of income of the State. The money
so collected is utilized for welfare activities of the people.
In Hansraj and Sons v State of J & K 69, it was held that a taxing statute is to be strictly
construed. Where a person clearly falls within the scope of a taxing provision, he should not be
allowed to escape but if he does not, he should not be dragged into the ambit by assigning
extended meaning to the language or otherwise.
Strict construction does not mean that where the subject falls clearly with the letter of law, the
court can avoid the tax by putting restricted construction on the basis of supposed hardship.
In State of W B v Kesoram Industries Ltd70, it was held that the judicial opinion of binding
authority flowing from several pronouncements of Supreme Court has settled these principles.
i) In interpreting a taxing statute, equitable considerations are entirely out of place.
Taxing statutes cannot be interpreted on any presumption or assumption and has to be
interpreted in the light of what is clearly expressed, it cannot imply anything which is
not expresses, and it cannot import provisions in the statute so as to supply any
deficiency.
ii) 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.
iii) If the words are ambiguous, the benefit of interpretation is given to the subject. There
is nothing unjust in the taxpayer escaping if the letter of law fails to catch him on
account of Legislature’s failure to express itself clearly.
69
(2002) 6 SCC 227.
70
(2004) 10 SCC 201.
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In Union of India v Onkar S Kanwar71, it was held that where two views are possible, the one in
favor of the assessee must be adopted.
In IRC v Duke of Westminster72, it was held that in a fiscal legislation, a transaction cannot be
taxed on any doctrine of ‘the substance of the matter’ because a subject is not liable to tax on
supposed ‘spirit of law’ or ‘by inference or by analogy’.
In Martan Dairy and Farm v Union of India73, the milk products like Chhena, Dahi, Butter and
Cream were exempted from sales-tax. But these products when sold in sealed containers were
not exempted. There was no reason as to why sale of these products in loose quantities and
unsealed containers was exempted and sale of same products in sealed containers was made
taxable. But the court still applied the strict literal construction rejecting the contention that the
term ‘seal’ in the language meant the affixture of the seal of seller in which his name or sale
description is exhibited.
In Philip John Plasket Thomas v CIT74, S 16(3) (a) (iii) of Income Tax Act, 1922 was strictly
construed by the Supreme Court. This section permits inclusion of such income of wife into total
income of husband which income arises to wife from assets transferred by husband otherwise
that for adequate consideration. It was held that for application of this provision, husband-wife
relationship must exist at the time when income accrued to wife and also at the time when the
transfer of assets is made. Income accruing to wife from assets transferred to her prior to
marriage could not be taken into account for computing total income of husband.
In Atlas Cycles Industries Ltd. v Haryana State 75 , a provision of the taxing statute was in
question by which ‘rules, by-laws, orders, directions and powers’ were extended to newly
included areas in Municipality. On the principle of strict construction, it was held that the
provision did not cover a notification imposing a tax.
Penal Statutes
Certain laws are enacted to cure some immediate mischief and bring into effect some kind of
social reform. Such legislations declare certain acts wrongful and invalid and forbid them. The
wrongful acts may be categorized into 2 classes;
i) Wrongful acts against an individual - the wrongdoer injures the private civil rights of
an individual and the remedy for such wrong is civil action like damages or
compensation.
ii) Wrongful acts against the public – the commission of such offence is deemed to be
against the State and State imposes penalty on offender like imprisonment, fine,
forfeiture or any other penalty and legislations related to it are called penal statutes.
E.g. Indian Penal Code, Prevention of Corruption Act etc.
The basic rule of strict construction of penal statute is that a person cannot be penalized without
clear letter of law. Presumptions and assumptions have no role in interpretation of penal statutes.
71
(2002) 7 SCC 591.
72
(1936) AC 1 (HL).
73
AIR 1975 SC 1492.
74
AIR 1964 SC 587.
75
AIR 1972 SC 121.
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They are to be construed strictly in accordance with the provision law. According to Friedmann,
the guiding principles of strict construction are:-
i) Courts cannot create new offence.
ii) Where court is faced with conflicting interpretations of language of a statute, either of
which is with reasonable construction, it must balance the legislative purpose of
statute in light of the objects and policies with principle that a person, should not be
convicted of an offence which he can reasonably regard as a non-criminal action.
In State of A.P. v Andhra Provincial Potteries Ltd76., it was held that in interpreting a penal
statute, it is not permissible to give an extended meaning to plain words of the section on the
grounds that a principle recognized in respect of certain other provisions of law requires that this
section should be interpreted in the same way.
In Tolaram v State of Bombay 77 , it was observed that if two possible and reasonable
constructions can be put upon a penal provision, the court must lean towards that construction
which exempts the subject from penalty rather than the one which imposes penalty. It is not
competent for the courts to stretch the meaning of an expression used by Legislature in order to
carry out the intention of Legislature.
76
AIR 1973 SC 2429.
77
AIR 1954 SC 496.
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Statutes can be interpreted with the help of the Internal & External Aids.
The Internal Aids are those which are found within the statute. They may be as follows:-
1. Title of the statute (Short & Long Title).

2. Preamble of the statute.
3. Chapter Headings of the statute.
4. Marginal Notes to every section of statute.
5. Punctuations.
6. Illustrations given below the sections.
7. Definitions.
8. Provisos.
9. Explanation.
10. Saving Clauses and non-obstante Clauses.
11. Schedules
12. Transitional Provisions
13. Articles
The External Aids for interpretation are those which are not contained in the statute but are
found else-where. They may be as follows:-
1. Parliamentary History
2. Historical Facts and Surrounding Circumstances
3. Subsequent Social, Political and Economic Developments and Scientific Inventions
4. Dictionaries
5. Text Books
6. Reference to Other Statutes
a. Statutes in PARI MATERIA
b. Help from Earlier Statutes
c. Help from Subsequent Legislation
d. Incorporation of Earlier Act into Later
e. Codifying and Consolidating Statutes
7. CONTEMPORANEA EXPOSITIO – Effects of Usage & Practice
8. Foreign Decisions
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Internal Aids
Internal aids are the various parts of a statute effectively utilized by the courts to ascertain the
correct meaning of an ambiguous word. They may be as follows:-
1. Title of the statute (Short & Long Title)

Title is an important part of the statute. Earlier title was not considered to be a part of
enactment and as such it was not utilized for the purposes of interpretation, but now the
situation has changed. It is well settled law now that the title of a statute is an important part
of the Act and may be referred to for the purpose of ascertaining its general scope and of
throwing light on its construction, although it cannot override the clear meaning of an
enactment.
There are 2 kinds of titles in most of the statutes – Short title and Long title.
a. Short Title
Short title may be considered to be a nick name. according to Lord Thering, every Act of
Parliament should have a short title ending with the year in which it has been passed. E.g.
The Code of Criminal Procedure, 1973, The Code of Civil Procedure, 1908.
The short title is always given on the top of the statute book. The object of short title is
identification and not description. One can identify by the short title about the subject
which is dealt under the Act.
b. Long Title
Long title of an Act is mentioned in the statute book in small letters below its short tile
and before its preamble. The long title gives a general description of the object of the Act
and as such, the policy and purpose of the given Act may be derived from its long title.
Therefore, the long title may be legitimately pressed into service for effective guidance in
resolving the ambiguity in a statute.
Limitations of Title as Internal Aid to Construction
i. Title has no role to play where the words employed in the language are plain, precise
and bear only one meaning.
ii. Title can be called in aid only when there is an ambiguity in the language giving rise
to alternative constructions.
iii. Title cannot be used to narrow down or restrict the plain meaning of the language of
the statute.
iv. Title cannot prevail over the clear meaning of an enactment.
v. True nature of mandate of law has to be determined by its substance and not by title.
In Aswinikumar Ghose v Arabinda Bose78, the full title in the Supreme Court Advocates
(Practice in High Courts) Act, 1951 states, ‘An Act to authorize Advocates of the Supreme
Court to practice as of right in any High Court and it was observed that it is settled law that
the title of a statute is an important part of the Act and may be referred to for the purpose of
ascertaining its general scope and of throwing light on its construction, although it cannot
override the clear meaning of the enactment.
78
AIR 1952 SC 369, p. 388.
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In Kedarnath v State of West Bengal79, S4 of West Bengal Criminal Law Amendment (Special
Courts) Act, 1949 was in question which gave power to the State Government to decide which
particular case should go for reference to special courts and be tried by special procedure. This
Act was challenged before the Supreme Court on the ground that it violated Art 14 of
Constitution. The long title of the Act stated “An Act to provide for a more speedy trial and more
effective punishment of certain offences”. In view of the long title, Supreme Court held that the
Act was meant to give discretion to the State Government as to which offence deserved to be
tried by special courts under special procedure and therefore contention that Act was in violation
of Art 14 was rejected.
In Poppatlal Shah v State of Madras80, the title of the Madras General Sales Tax Act, 1939 was
utilized to indicate that the object of the Act is to impose taxes on sales that take place within the
province.
In Society for Unaided Private Schools of Rajasthan v Union of India & Anr.81, the words
‘free’ and ‘compulsory’ in the Long Title of the Right of Children to Free and Compulsory
Education Act, 2009, were relied on by the Supreme Court to hold that the Act has been enacted
by the Parliament to give effect to the right of the child to education as enshrined under Art 21
and 21-A of the Constitution.
In Bishwambhar Singh v State of Orissa and In re, Kerala Bill Education Bill 82 , wide
discretion conferred on the Government under a statute and challenged as arbitrary, has been
upheld on the ground that the discretion so conferred can be exercised only in furtherance of the
object and policy of the Act as given out by the Long Title and Preamble and is thus not
unfettered or unguided.
In Manoharlal v State of Punjab83, it was held that, “the long title of the Act – on which learned
counsel placed considerable reliance as a guide for the determination of the scope of the Act and
the policy underlying the legislation, no doubt, indicates the main purposes of the enactment but
cannot, obviously, control the express operative provisions of the Act.”
In R v Bates and Russell84, it was held that the title although part of the Act is in itself not an
enacting provision and though useful in case of ambiguity of the enacting provisions, is
ineffective to control their clear meaning. The long title is a legitimate aid to the construction. In
many cases the long title may supply the key to the meaning. Where something is doubtful or
ambiguous, the long title may be looked to resolve the doubt or ambiguity, but in the absence of
doubt or ambiguity, the passage under construction must be taken to mean what it says, so that
it’s meaning be clear, that meaning is not to be narrowed or restricted by reference to the long
title.
79
AIR 1953 SC 404.
80
AIR 1953 SC 274.
81
(2012) 6 SCC 1, p. 28.
82
AIR 1954 SC 139 & AIR 1958 SC 956.
83
AIR 1961 SC 418, p. 419.
84
(1952) 2 All ER 842.
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2. Preamble of the statute

Preamble is a statement given in the statutes in the beginning. It is a part of the Act and sets
out its scope, object and purpose. It provides a summary of the statute. It reflects the gist of
law. Preamble is said to be a key to open the mind of Legislature and as such, it is admissible
aid to construction of an ambiguous provision.
However, the Supreme Court has observed that when the language of an Act is clear, the
preamble must be disregarded but where object or meaning of the enactment is not clear, the
preamble may be resorted to explain it. In view of this, one cannot start with preamble for
construing the provisions of the Act but one can always refer to the preamble to explain the
ambiguous language of the Act.
Limitations of Preamble as Internal Aid to Construction

i. Preamble cannot be pressed into service as long as the words are clear and precise
and are susceptible to only one meaning.
ii. Preamble can be resorted to only when the language of a provision is reasonably
capable of alternative constructions.
iii. Preamble cannot either restrict or extend the meaning and scope of the words used in
the enacting part.
iv. Preamble can only indicate in a general way the content and color of an enactment
but cannot override the enacting provisions in the Act.
v. In case of conflict between Preamble and a section, the Preamble would succumb and
section shall prevail.
vi. If the provisions contained in a statute do not accord with the Preamble, then those
provisions cannot be invalidated on this ground.
vii. Preamble cannot be used to control or qualify the clear and precise language of
enactment.
viii. Preamble cannot be regarded as source of any substantive power or of any prohibition
or limitation.
In Brett v Brett85, “It is to the Preamble more specially that we are to look for the reason or
spirit of every statute, rehearsing this, as it ordinarily does, the evils sought to be remedied,
or the doubts purported to be removed by the statute, and so evidencing, in the best and most
satisfactory manner, the object or intention of the Legislature in making or passing the statute
itself.”
The majority judgments in Keshavananda Bharati v State of Kerala86 and Minerva Mills
Ltd. v Union of India87 strongly relied upon the Preamble in reaching the conclusion that the
power of amendment conferred by Art 368 was limited and did not enable Parliament to alter
the basic structure or framework of the Constitution.
85
(1826) 162 ER 456m oo, 458m 459.
86
AIR 1973 SC 1461.
87
AIR 1980 SC 1789, pp. 1798.
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In Indira Nehru Gandhi v Raj Narain & Raghunathrao Ganpatrao v Union of India88, it
was held that Preamble can neither be regarded as the source of any substantive power nor as
a source of any prohibition or limitation.
In Re Kerala Education Bill89, it was observed that the policy and purpose of the Act can be
legitimately derived from its Preamble. In Thangal Kunju Mudaliar v Venkatachalam90, it
was held that preamble can be used to know the aims and objects of the legislation.
In Sita Devi v State of Bihar 91 , it was held that the preamble can be used as an aid in
construing a provision, when the provision is ambiguous. In Lucknow Development
Authority v M K Gupta92, it was held that although preamble can be a useful assistance to
ascertain legislative intent, but cannot be used to control or qualify the precise and
unambiguous language of enactment.
In Gullipilli Sowria Raj v Bandaru Pavani93, Use of the word ‘may’ in S5 of the Hindu
Marriage Act which provides: ‘A marriage may be solemnized between any two Hindus…’
has been construed to be mandatory in the sense that both parties to the marriage must be
Hindus as defined in S 2 of the Act. It was, therefore, held that a marriage between a
Christian male and a Hindu female solemnized under the Hindu Marriage Act was void. This
result was reached also having regard to the Preamble of the Act which reads: ‘An Act to
amend and codify the law relating to marriage among Hindus.’
In Maharao Sahab Shri Bhimsinghji v Union of India 94 , S 23 (1) of the Urban Land
(Ceiling and Regulation) Act, 1976 permits the allotment of any land vesting in the
Government to any person for any purpose relating to, or in connection with any industry or
for providing residential accommodation of such type as may be approved by the State
Government to the employees of any industry. This was given a restrictive construction
having regard to the Act’s Preamble and S 23 (4). The Preamble shows that the Act was
passed with the object of preventing concentration of urban land in the hands of a few
persons and with a view to bringing about an equitable distribution of land in urban
agglomerations to subserve the common good. S 23 (4) provides that subject to the
provisions of S 23 (1) all vacant land shall be disposed of by the State Government to
subserve the common good. Although S 23 (4) was ‘subject to’ S 23 (1), yet it was held that
disposal of land u/S 23 (1) can only be for the common good and not otherwise. A contrary
construction would have been made S 23 (1) unconstitutional as was held by the minority.
The majority, however, gave it a restricted interpretation observing: “The Preamble to the
Act ought to resolve interpretational doubts arising out of the defective drafting of S 23.”
88
AIR 1975 SC 2299 & AIR 1993 SC 1267.
89
AIR 1958 SC 956.
90
AIR 1956 SC 246.
91
1995 Supp. (1) SCC 670.
92
AIR 1994 SC 787.
93
(2009) 1 SCC 714 para 16.
94
AIR 1981 Sc 234, p. 237.
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3. Chapter Headings of the statute

In all modern statutes, the headings are generally attached to almost each section, just
preceding the provisions. E.g. S 437 of the Code of Criminal Procedure, 1973 is ‘When bail
may be taken in case of non-bailable offence’.
Headings are not passed by Legislature but they are subsequently inserted after the Bill has
become law. Heading are of 2 kinds, one those which are prefixed to a section and the other
which are prefixed to a group or set of sections.
Headings can be called in aid while construing a section but the importance attached to
headings as internal aid to construction has been differently described by 2 groups of
thought. One group says that heading is to be regarded as giving the key to the interpretation
of the clauses ranged under it, unless the wording is inconsistent with such interpretation; and
so the headings might be treated as “Preambles to the provisions following them”. 95 But
according to the other view resort to ‘the heading’ can only be taken when the enacting
words are ambiguous.96
Limitations of Headings as Internal Aid to Construction
i. Headings cannot be called in aid if the words are precise and unambiguous and
capable of bearing only one meaning.
ii. Headings can be legitimately referred to only when the language of a provision is
open to more than one construction due to uncertain meaning of the words used
therein.
iii. Headings can neither cut down nor extend the plain meaning and scope of the words
used in the enacting part.
iv. Headings cannot control the clear and plain meaning of the words of an enactment.
v. The headings of one section or one group sections cannot be used to interpret another
section or another group of sections97.
In Guntaiah v Hambamma98, Rule 43-G of Karnataka Land Revenue (Amendment) Rules,

1960 was in question. It was held that in the title to this rule, it is stated that the grants of land
under preceding rules shall be subjected to the following conditions. This title to the rules as
such cannot be taken as the key words to interpret Rule 43-G. They have got the effect of
only marginal notes. The marginal notes are not considered as legitimate aid to construction
of any section or rule.
In Qualter Hall & Co. v Board of Trade, the headings contained in Schedule VII of the
Companies Act, 1948 were used by the Court of Appeal for purposes of construction of paras
in the Schedule to which they were prefixed.
95
Toronto Corporation v Toronto Ry. Co. (1907) AC 315, P. 324 (PC) & Qualter Hall & Co. v Board of Trade
(1961) 3 ALL ER 389, pp. 392.
96
R v Surrey (North Eastern Area) Assessment Committee (1947) 2 All ER 276, pp. 278, 279.
97
Frick India Ltd. v Union of India, AIR 1990 SC 689.
98
(2005) 6 SCC 228.
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In National Insurance Co. Ltd. v Sinitha & Ors99, the Supreme Court relied on the heading
of S 163A of the Motor Vehicles Act, 1988, which reads ‘Special provisions as to payment of
compensation on structured formula basis’, and the section itself, as well as the scheme
provided therein, to hold that since a pre-structure formula is to be used to evaluate the
compensation, the liability there-under may be huge, and hence the section cannot be based
on the principle of no-fault liability.
In Mathew Varghese v M. Amritha Kumar & Ors.100, the Supreme Court relied upon the
heading of S 37 of the SARFAESI Act, 2002 which reads ‘Application of other laws not
barred’, and held that the application of the SARFAESI Act will be in addition to, and not in
derogation of, the provisions of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993.
In Bhinka v Charan Singh101, u/S 180 of the UP Tenancy Act, 1939 a remedy provided for
an ejectment of a person who was retaining possession of land ‘otherwise than in accordance
with the provisions of the law for the time being in force’ was in question as to whether a
person having no title but retaining possession by virtue of an order passed u/S 145 of the
CrPC could be ejected under the aforesaid provision. The Supreme Court construed the
words ‘possession in accordance with the law for the time being in force’ as meaning
possession with title. Support for arriving at this conclusion was taken from the heading of
the section which reads ‘Ejectment of person occupying land without title’.
In Union of India v ABN Amro Bank & Ors102, the Supreme Court relied on the heading of
S 29 (1) of the Foreign Exchange Regulation Act, 1973, which reads ‘Restrictions on
establishment of place of business in India’, as well as the plain language of the provision
and held that there is a specific bar on foreign companies and foreign nationals mentioned in
S 29 (1) (a) from establishing or carrying on any business in India or opening any branch in
India without obtaining permission of the RBI, and any act done in breach thereof will be
illegal. However, the restrictions are not applicable to an Indian Company.
In S Iyyappan v United India Insurance Co. Ltd & Anr.103, the heading ‘Insurance of Motor
Vehicles against Third-Party Risks’ given to Chapter XI of the Motor Vehicles Act, 1988,
was relied on by the Supreme Court to hold that the intention of the Legislature is to make
third-party insurance compulsory in order to protect persons from the risk attendant upon the
user of motor vehicles on the road, and to ensure that the victims of accidents would be able
to get compensation for the death or injuries suffered. The Legislature has therefore made it
obligatory that no motor vehicle shall be used unless third-party insurance is in force.
99
(2012) 2 SCC 356, p. 378.
100
(2014) 5 SCC 610, pp. 640,641.
101
AIR 1959 SC 960.
102
(2013) 16 SCC 490, pp. 517,518.
103
(2013) 7 SCC 62, p. 76.
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4. Marginal Notes to every section of statute

Marginal notes are those which are printed on the side of a section, generally in a fine or
small print. These notes summarize the effect of the section. In the past, the marginal notes
were also referred to as aid to construction, but now, as per majority opinion, they are not
considered to be helpful. The reason is that in most of the case the marginal notes are inserted
by draftsmen and not by Legislators and not even under the instructions of Legislature,
therefore, do not carry an authority of law for interpreting any statutory provision.
Limitations of Marginal Notes as Internal Aid to Construction
i. Marginal notes are very rarely used for interpretation as they are not considered to be
a good aid to construction.
ii. Only those marginal notes can be used for construing a provision which have been
inserted with assent of Legislature.
iii. Marginal notes cannot be resorted to for construing a provision if the words of that
provision are sufficiently clear, plain and precise and give out only one meaning.
iv. Marginal notes can be called in aid only when language suffers from ambiguity and
more than one construction is possible.
v. Marginal notes cannot control the plain meaning of words of the enactment.
vi. Marginal notes can be used for interpretation of that section only to which they are
appended.
vii. Marginal notes cannot frustrate the effect of a clear provision.
In Anwarul Haq v State of UP104, S 324 of Indian Penal Code, 1860 provides that “whoever,
except in the case provided for by S 334, voluntarily causes hurt by means of any instrument
for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is
likely to cause death, or by means of fire or any heated substance, or by means of any poison
or any corrosive substance, or by means of any explosive substance or by means of any
substance which is deleterious to human body to inhale, to swallow or to receive into the
blood or by means of animal shall be punished with imprisonment of either description for a
term which may extend to three years or with a fine or with both” and the expression “any
instrument which, used as a weapon of offence, is likely to cause death” was in question. The
marginal note says “voluntarily causing hurt by dangerous weapons or means”. It was held
that this expression should be construed with reference to the nature of instrument. This
section prescribes a severe punishment where an offender voluntarily causes hurt by
dangerous weapon or by other means stated in the section.
In Deewan singh v Rajendra Pd. Ardevi & Sarabjit Rick Singh v Union of India105, it was
held that reference to marginal notes may be permissible in exceptional cases for construing a
section in a statute.
In Bengal Community Co. Ltd. v State of Bihar & Golaknath v State of Punjab106, it was
held that marginal note appended to Articles to constitute a part of the Constitution as passed
by the Constituent Assembly and therefore they have been made use of in construing the
104
(2005) 10 SCC 581.
105
(2007) 10 SCC 528 & (2008) 2 SCC 417.
106
AIR 1955 SC 661, pg. 676 & AIR 1967 SC 1643.
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Articles. E.g. Art 286, as furnishing ‘prima facie’, ‘some clue as to the meaning and purpose
of the Article’.
In V.B. Prasad v Manager P.M.D.U.P. School107, it was held that a note appended to a
statutory provision or subordinate legislation is merely explanatory in nature and does not
dilute the rigor of the main provision.
In Prem Parkash Pahwa v United Commercial Bank & Anr.108, it was held that notes under
the rules cannot control the rules but they can provide an aid for interpretation of those rules.
Further, a note which is made contemporaneously with the rules is part of the rule, and is not
inconsistent with the rule, but makes explicit what is implicit in the rule.
107
AIR 2007 SC 2053.
108
(2012) 1 SCC 123, p. 129.
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5. Punctuations
Punctuation is the system of using certain conventional marks, as periods, in writing or
printing. Punctuation marks mean the marks such as comma, full stop, colon, semi-colon etc.
If the punctuation marks are ignored, it may render the language meaningless. If the
placement of punctuation mark in a language is changed, the very meaning of the same set of
words might get reversed. Thus, the punctuation marks throw some light on the intended
meaning of that provision. Considering the presumption that the Legislature has used precise
words and unambiguous language to express them, there can be no doubt as to the position of
punctuation marks in the language. As such, the punctuation marks are to be carefully seen
while construing a provision since they can provide a good assistance in inferring the
intention of Legislature.
Limitations of Punctuation Marks as Internal Aid to Construction
i. Some jurists have opined that punctuation marks are of no use as internal aids to
construction and it is an error to rely on punctuation marks in construing the Acts of
Legislature.
ii. Presence of comma or absence of comma must be disregarded if it is contrary to plain
intention of the statute.
iii. Punctuation marks can neither cut down nor extend the plain meaning and scope of
the words used in the enacting part.
iv. Punctuation marks cannot control the clear and plain meaning of the words of an
enactment.
In Mohd. Shabhir v State of Maharashtra109, S 27 of Drugs and Cosmetics Act, 1940 came up
for construction. According to this Section, whoever “manufactures for sale, sells, stocks or
exhibits for sale or distributes” a drug without a license, is liable for punishment. It was pointed
out that a comma is present after “manufacture for sale”, therefore the expression “manufactures
for sale” is distinguished form other part. Also a comma is found after the word “sells”. So this
word is also separated out. But there is no comma after the word “stocks”. So this word “stocks”
can be treated as attached to succeeding expression “or exhibits for sale”. Thus a complete
expression “stocks or exhibits for sale” exists without any separating comma. So both stocking
and exhibiting are governed by succeeding words and hence “stocking for sale” as well as
“exhibiting for sale” is punishable u/S 27. In consideration of these punctuation marks, Supreme
Court held that only stocking for sale could amount to an offence under this section and not mere
stocking.
In Sama Alana Abdulla v State of Gujarat110, the Supreme Court construed the words “any
secret official code or password, or any sketch, plan, model etc”. it was observed that there is a
comma present after “password” due to which the succeeding words are separated and detached
from the preceding words. Hence, the term “Secret” only qualified the expression “official code
or password” but has no application for succeeding expression “any sketch, plan, model etc.”
109
AIR 1979 SC 564.
110
AIR 1996 SC 569.
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In M K Salpekar (Dr.) v Sunil Kumar Shamsunder Chaudhari111, where the court construed
clause 12 (3) (v) of the Central Provinces and Berar Letting of Houses and Rent Control Order,
wherein this provision permits ejectment of a tenant on the ground that “the tenant has secured
alternative accommodation, or has left the area for a continuous period of four months and does
not reasonably need the house”. In holding that the requirement that the tenant ‘does not
reasonably need the house’ has no application when he ‘has secured alternative accommodation’
the court referred and relied upon the punctuation comma after the words ‘alternative
accommodation’. However, if a statute is revised and re-enacted but the section under
construction in the revised statute is brought in identical terms as in the old statute except as to
variation of some punctuation, that in it will not be indicative of any intention on the part of the
Legislature to change the law as understood under the old section.
In Ashwini Kumar Ghose v Arabinda Bose 112 , it was observed that punctuation is a minor
element in construction 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, weight should be given to
punctuation.
In Whirlpool Corporation v Registrar of Trade Marks, Mumbai113, S 2 (1) (x) of Trade and
Merchandise Marks Act, 1958 was construed by the Supreme Court. This section provides
“Tribunal means the Registrar or, as the case may be, the High Court, before which the
proceeding concerned is pending”. It was pointed out that the words “as the case may be” are
placed between two ‘commas’. The result is that the words “Tribunal means the Registrar” stand
our separately and the words “High Court before which the proceeding concerned is pending”
stand our separately, both as independent phrases. In view of this, it was contended that the
words “before which the proceeding concerned is pending” will apply only to High Court and
not to Registrar and as such, Registrar can exercise jurisdiction irrespective of pendency of any
proceeding whereas High Court will have jurisdiction only when the ‘proceeding concerned’ is
pending before it. If comma were that important, there is another comma after the word “High
Court” due to which the phrase ‘before which the proceeding concerned is pending’ stands
detached from the word “High Court”. The result is that this phrase becomes applicable to both
Registrar and High Court. In view of this, it was held that both High Court and Registrar shall be
“Tribunal” and shall have jurisdiction regarding the proceeding pending before them.
In Lewis Pugh Evans Pugh v Ashutosh Sen114, while construing Art 48 of the Indian Limitation
Act, 1908 which reads ‘for specific moveable property lost or acquired by theft, or dishonest
misappropriation or conversion, or for compensation for wrongfully taking or detaining the
same’, the court rejected the contention that the word ‘dishonest’ qualified not only
‘misappropriation’ but also ‘conversion’ bringing only dishonest conversion within the Article,
and observed: “The truth is that, if the article is read without the commas inserted in the print, as
a court of law is bound to do, the meaning is reasonably clear.”
111
AIR 1988 SC 1841.
112
AIR 1952 SC 369.
113
(1998) 8 SCC 1.
114
AIR 1929 PC 69, p. 71.
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6. Illustrations given below the sections.

Illustrations are sometimes appended to a section of the statute in order to explain the
provisions of law contained in that section. The purpose of illustration is to make the
meaning of the section abundantly clear by giving examples.
Limitations of Illustration as Internal Aid to Construction
i. Illustrations are of little use for interpretation as they are not considered to be a part of
the statute and cannot be resorted to for construing a provision if the words of that
provision are sufficiently clear, plain and precise and give out only one meaning.
ii. Illustrations can be called in aid only when language is ambiguous and more than one
construction is possible.
iii. Illustrations cannot control the plain, meaning of word of the enactment.
iv. Illustrations cannot be used to curtail or expand the ambit of the section which alone
forms and enactment.
v. Illustration cannot have the effect of modifying the language of the section.
vi. Illustrations cannot frustrate the effect of a clear provision.
vii. Illustrations cannot control the real context of the section and in case of repugnancy
between the illustration and section, it is the section that will prevail.
In Sopher v Administrator General of Bengal 115 , while interpreting S 113 of Indian
Succession Act, 1925 and in deciding that ‘later’ bequest to be valid must comprise of all the
testator’s remaining interest, if the legatee to the later bequest is not in existence at the time
of the testator’s death, and that a conferment of a life estate under such a bequest is not valid,
the Privy Council took the aid of Illustrations appended to that section.
In Shambhu Nath Mehra v State of Ajmer 116 , while interpreting S 106 of the Indian
Evidence Act, 1872, the Court referred the illustration to the S 106 and held that the said
provision was not intended to relieve the prosecution of the burden of proof and was
designed to meet certain exceptional cases and had no application to those cases where the
information was as much within the knowledge of the prosecution as of the accused.
In Aniruddha v Administrator General of Bengal117, while deciding whether S 115 of the
Indian Succession Act, 1925 is sufficiently wide and is not limited in its application, the
court referred to illustrations appended to that section and pointed that ‘the words of the
section are not ambiguous. It is well settled that just as illustrations should not be read as
extending the meaning of the section, they should also not be read as restricting it operation
especially so when the effect would be to curtail a right which the plain words of the section
would confer.
In Ariffins’ case118, the Supreme Court took the aid of illustration appended to S 43, Transfer
of Property Act, 1882 for the conclusion that the said provision applies to transfers of spes
successionis and enables the transferee to claim the property, provided other conditions of the
sections are satisfied.
115
AIR 1944 PC 67, p.69.
116
AIR 1956 SC 404, p. 406.
117
AIR 1949, PC 244, p. 250.
118
43 IA 256, 263L AUR 1916 PC 242.
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7. Definition or Interpretation Clause

Most of the modern statutes contain definitions / interpretation clauses in the beginning. The
definition provides the meaning of the words used in the statute so as to avoid any
uncertainty of the meaning of that word. In fact, definition settles the meaning of a particular
word. A word which is defined in the Act shall bear the meaning according to its definition
and shall be assigned same meaning everywhere it appears in that enactment if context
remains the same. Since definition helps in interpreting a particular word, it is also termed as
interpretation clause.
The object of definition or interpretation clause is to make clear the meaning and scope of
words used. The words or expressions used in the statute and all the subject matters to which
such words or expression shall apply, is mentioned in the definition clause. Owing to the
presence of this definition clause, it is no more necessary to describe the meaning and scope
of word / expressions used in the statute, at every place they appear.
It is common practice of Legislature to define the words used in the statute and provide
interpretation clause also in the statute. The best guide is the definition of that word as given
in the statute itself. the courts must look into the interpretation clause first for construction of
words used in the statute.
The definition therefore serves dual purpose. Firstly, it provides the meaning of the word
used in the body of statute and secondly it helps to avoiding the situation in which the
detailed meaning of the word is required to be given at every place where such word is used.
Kinds of Definitions
A particular expression is often defined by using the word “means” or the word “includes”.
Sometimes both these words “means and includes” are also used. Depending upon the
language employed, the definitions are classified into various kinds and the interpretation of
each kind of definition is also different.
There could be following kinds of language employed in a definition:

a. The language in which the word “means” is used.
Such definition is prima facie restrictive or exhaustive in nature and does not permit
addition of anything else to the enumerations already mentioned in the definition itself.
b. The language in which the word “includes” is used.
Such definition is prima facie extensive in nature. The things of same genus or kind can
be added in the enumerations already provided in the definition.
c. The languages in which both the words “means and includes” are used. Such definitions
are supposed to be exhaustive.
d. The language in which the words “deemed to include” is used.
This form is used to bring in something within the scope of the defined word which
otherwise would not have fallen under it. Such definition is considered to be inclusive or
extensive.
e. The language in which both the words “includes” and “shall not include” are used.
Such definitions are both inclusive and exclusive.
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In CIT, A.P. v Taj Mahal Hotel, Secunderabad119, the definition of “plant’ given in S 10 (5) of
Income Tax Act, 1922 was construed by the Supreme Court. This is an inclusive definition
which provides that ‘plant’ includes vehicles, books, scientific apparatus and surgical equipment
purchased for the purpose of the business, profession or vocation. Referring to this definition, it
was observed ‘the very fact that even books have been included, shows that the meaning
intended to be given to ‘plant’ is very wide. The word ‘includes’ is often, used in interpretation
clauses in order to enlarge the meaning of the words occurring in the body of the statute. When it
is so used, these words must be construed as comprehending not only such things as they signify
according to their nature, but, also those things which interpretation clause declares that they
shall include’. It was held in this case that the sanitary fittings and pipeline fittings in a building
which is used as hotel, would fall within the word ‘plant’.
In Delhi Judicial Service Association v State of Gujarat120, the words ‘including the power to
punish for contempt of itself’ occurring in Art 129 of the Constitution were construed and held
by the that these words do not limit the inherent power of the Supreme Court to punish for
contempt itself as also of subordinate courts.
In Commissioner of Income Tax, Madras v G. R. Karthikeyan121, it was observed that the word
‘income is of broadest connotation and is not restricted by several clauses in S 2 (24) of Income
Tax Act, 1961. Even a receipt not falling in any of the clauses may yet constitute income for to
say otherwise would mean reading the several clauses as exhaustive. It was therefore held that
prize money received by a participant in a motor rally was ‘income’ and taxable even if did not
fall in any of the clauses in S 2 (24).
In Hariprasad Shivshankar Shukla v A.D. Diwekar122, the definition of ‘retrenchment’ given in
S 2 (oo) of Industrial Disputes Act, 1947 was construed and held that the word ‘retrenchment’
does not include discharge of services of all workmen on a real and bona fide closure of whole
business, or on the business or undertaking being taken over by another employer.
In Bangalore Water Supply and Sewerage Board v A. Rajappa123, the Supreme Court construed
the definition of Industry as contained in S 2 (j) of Industrial Disputes Act, 1947 and held –
i. Where there is a systematic activity,
ii. Organized by cooperation between employer and employee,
iii. For the production and or distribution of goods and services calculated to satisfy
human wants and wishes (not spiritual or religious but inclusive of material things or
services geared to celestial bliss e.g. making on large scale Prasad or food) is carried
on,
Prima facie there is an industry in that enterprise. While so deciding, the Court reviews its
earlier pronouncements and overruled some of them.
119
AIR 1972 SC 168.
120
AIR 1991 SC 2176.
121
AIR 1993 SC 1671.
122
AIR 1957 SC 121.
123
AIR 1978 SC 548.
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In Baldev Singh Gandhi v State of Punjab124, the term ‘misconduct’ was construed which was
not defined in the Act. The word ‘misconduct’ is antithesis of the word ‘conduct’. Ordinarily, the
expression ‘misconduct’ means wrong or improper conduct, unlawful behavior, misfeasance,
wrong conduct, misdemeanor etc. It was held that since there are different meanings of that
expression, the same has to be construed with reference to the subject and the context wherein it
occurs. Regard has to be paid to the aims and objects of the statute.
Exception to Rule that “means is exhaustive” and “includes is extensive”
In South Gujarat Roofing Tiles Manufacturers Association v State of Gujarat125, the Entry 22
added by Gujarat Government to Part-I of Schedule of the Minimum Wages Act, 1948, was
construed in the same manner. This entry refers to “Employment in Potteries Industries”. An
explanation is attached to this entry which reads “for the purpose of this entry Potteries Industry
includes the manufacture of following articles of pottery, namely (a) Crockery (b) sanitary
appliance (c) Refractories (d) Jars (e) Electrical accessories (f) Hospital Wares (g) Texture
accessories (h) Toys (i) Glazed tiles. It was this explanation which was interpreted by the
Supreme Court wherein it held that items included in it were plainly comprised in the expression
‘pottery industry’ which shows that the word ‘includes’ was not used to extend the normal
meaning of the expression. It was concluded that the word ‘includes’ was used in the sense of
‘means’ and the definition provided by the explanation was exhaustive.
In Hemens (Valuation Officer) v Whitsbury Farm and Stud Ltd.126, S 2 (3) of Rating Act, 1971
was construed. This section provided the definition of ‘livestock’. According to this definition
‘livestock’ includes any mammal or bird kept for production of food or wool or for the purpose
its use in the farming of land. The word ‘livestock’ was not given wide meaning although the
definition employed the word ‘includes’ and as such was extensive in nature. It was held that the
term ‘livestock’ shall not include thorough bred horses not kept for use in farming of land.
124
(2002) 3 SCC 667.
125
AIR 1977 SC 90.
126
(1988) 1 All ER 72 (HL).
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8. Provisos
In some sections of a statute, after the main provision is spelled out, a clause is added, with
the opening words “provided that....”. The part of the section commencing with the words
“Provided that…” is called Proviso.
A proviso creates an exception to the main provision. When a statute is framed in general
terms, the limitations are recorded by use of proviso. A proviso is a clause which is added to
the statute to except something from enacting clause or to limit its applicability. The function
of a proviso is to qualify something or to exclude something from what is provided in the
enactment which, but for proviso, would be with the purview of the enactment. In other
words, the intention with which a proviso is added, is to carve out an exception to the main
provision, thereby removing something from its scope, which otherwise would have been
included in the section.
However, settled principles of interpretation do not permit construction of the enacting part
without reference to proviso attached to it. The section and the proviso thereto must be
construed as a whole, each portion throwing light on the rest.
Limitations of Proviso as Internal Aid to Construction
i. Proviso is constructed in relation to section to which it is appended.

ii. Proviso is attached to one section or sub-section cannot be used to qualify another
section or sub-section, nor can it be used to except anything from any other section.
iii. If something is embraced by clear words in the enactment, the proviso cannot be used
to nullify the same or exclude something or include something in it by implication.
When main provision is clear, a proviso cannot be used to cut it down.
iv. The ambit and scope of enacting section cannot be widened or curtailed by the
proviso.
v. Proviso cannot be used to frustrate the real object of the main enactment, unless the
words of the proviso are such that it is its necessary effect.
vi. Proviso to a section cannot be used to import into enacting part something which is
not there.
Distinction between proviso, exception and saving clause127
Proviso is used to remove special cases from the general enactment and provide for them
specially. Exception is intended to restrain the enacting clause to particular cases. Saving
clause is used to preserve from destruction of certain rights, remedies or privileges already
existing.
In CIT, Mysore etc. v Indo Mercantile Bank Ltd.128, proviso 1 to S 24 (1) of the Indian
Income-tax Act, 1922 was construed as limited in its application to set-off of profits & losses
arising under different heads, a subject dealt with by S 24 (1) & was held inapplicable to set-
off of profits & losses arising under the same head, a subject dealt with under Ss 7 to 12B.
127
HORACK: Cases and Materials on Legislation, 2nd Edn., p. 572.
128
AIR 1959, SC 713.
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In Hindustan Ideal Insurance Co. Ltd v Life Insurance Corporation of India 129 , the
Supreme Court in construing rule 12 of the LIC Rules, 1956 which prescribes a period of
limitation within which a reference can be made, observed that the rule considered without
the proviso may well be construed as applying to a reference made by the Corporation; but
considering the rule along with the proviso, it was held that the rule was meant to govern a
reference by someone else and not the Corporation.
In State of West Bengal v Union of India 130 , the proviso appended to S 9 of the Coal
Bearing Area (Acquisition and Development) Act, 1957 which reads ‘provided that, where
the declaration relates to any land, or to any rights in or over land belonging to a State
Government which has or have not been leased out, no such declaration shall be made except
after previous consultation with the State Government’, was held to have an important
bearing on the construction of the Act that the Union has power to acquire the interest of a
State in coal-bearing lands.
In T.M. Kanniyan v I.T.O., Pondicherry131, Art. 240 (1) of the Constitution along with its
proviso was construed by the Supreme Court. By virtue of the Art. 240 (1), power is
conferred on President of India “to make regulations for peace, progress and good
government” of Union Territories. The proviso appended to Art. 240 (1) says that President
shall not make any regulations after constitution of Legislature of a Union Territory. On the
basis of this proviso, it was argued before the court that power of the President is co-
extensive with power of Legislature of that Union Territory and hence, President’s power to
make regulations is limited to subjects falling within Concurrent and State List. This
argument was rejected on the reasoning that enactment part of Art 240 (1) in plain terms
confers powers of making regulations, which are not curtailed by the proviso.
In G.G. in Council v Municipal Council Madura132, Railways Act, 1890 was in question.
U/S 11 (1) (b) of this Act, a Railway Administration is bound to make and maintain all
necessary arches, tunnels, culverts etc. of such dimensions as will, in the opinion of
Provincial Government, be sufficient at all times to convey water as freely form or to the
lands lying near or affected by the railway, as before the making of the railway or as nearly
so as may be. By S 11 (3) (b) the aforesaid duty is subject to a proviso that a Railway
Administration shall not, except on the requisition of Provincial Government, be compelled
to defray the cost of executing any further or additional accommodation works for the use of
owners or occupiers of land after expiration of 10 years from the date on which the railway
passing through the lands was first opened for public traffic. In the instant case, a railway
was opened in Madura in 1902 and a culvert was constructed by Railway Administration for
conveying water of a water channel. With the growth of town, the culvert was found
insufficient and in 1938, the Provincial Government ordered the Railway Administration to
widen the channel u/S 11 (3) (b) at its own cost. Such order was held to be invalid.
129
AIR 1963 SC 1083, p. 1087.
130
AIR 1963 SC 1241, p. 1248.
131
AIR 1968 SC 637.
132
AIR 1949 PC 39.
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9. Explanation
In some sections, explanation is appended after the statutory provisions. An explanation is
meant to further clarify the meaning of the defined word and considered to be part and parcel
of the enactment. The purpose of an explanation is to explain the meaning of words
contained in the section and to remove doubts. Explanation is added to a section to include
something in the ambit of main enactment or to exclude something from it.
Limitations of Explanation as Internal Aid to Construction
i. Explanation cannot curtail or enlarge the scope of the section.

ii. Explanation cannot control the plain meaning of words of the section.
iii. Explanation cannot have the effect of modifying the language of the section.
iv. Explanation is meant to further explain the meaning of the provision and to remove
the doubts. An explanation can be used for clarification of that section only to which
it is appended.
In Bengal Immunity Co. Ltd. v State of Bihar & Mohanlal Hargovinddas v State of MP133,
the Explanation appended to Art. 286 (1) of the Constitution was restricted to its avowed
purpose of explaining an outside sale for purpose of clause (1) and was construed as not
conferring any taxing power or as restricting the ban imposed by clause (2) of the same
Article. However, an identical Explanation contained in a State legislation was construed
differently and was held as conferring taxing power. The context and setting of the two
enactments, it was pointed out, made the entire difference although the language was
identical.
In Sulochana Amma v Narayanan Nair134, Explanation VIII to S 11 of the Code of Civil
Procedure, inserted by amendment in 1976, has been construed to promote the object for
which it was inserted viz., that an issue once decided by a competent court should not be
litigated over again even though the court deciding it was a court of ‘limited jurisdiction’ not
competent to decide the subsequent suit. Consistent with this object the words ‘a court of
limited jurisdiction’ were construed as wide enough to include a court whose jurisdiction is
subject to pecuniary limitation.
In M K Salpekar (Dr.) v Sunil Kumar Shamsunder Chaudhari135, it was held that when the
section deals with 2 categories of cases e.g. residential and non-residential accommodations,
an Explanation to the section which is limited in scope to one category, namely residential
accommodations, cannot affect the scope of the section with reference to the second
category, namely non-residential accommodations.
In Patel Roadways Ltd. v Prasad Trading Company 136 , it was held that when a section
contains a number of clauses and there is an Explanation at the end of the section, it should
be seen as to which clause it applies and the clarification contained in it applied to that
133
AIR 1955 SC 661, p. 733 & AIR 1967 SC 1022.
134
AIR 1994 SC 152, p. 156.
135
AIR 1988 SC 1841, p. 1843.
136
AIR 1992 SC 1514, p. 1518.
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clause. But in CIT v Plantation Corporation of Kerala Ltd.137, it was held that when the
Explanation added towards the end of the section opens, with the words ‘for the purpose of
this section’ or ‘nothing in this section’ it will prima facie indicate that the Explanation
applies to all the clauses in the section.
In Sundaram Pillai v Pattabiraman138, the objects of an Explanation to a statutory provision
were culled out as –
• To explain the meaning and intendment of the Act itself;

• 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;
• To provide an additional support to the dominant object of the Act in order to make it
meaningful and purposeful.
• 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 true purport and intendment of the
enactment, and
• 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.
But it would be wrong to always construe an Explanation limited to the aforesaid objects.
The meaning to be given to an Explanation will really depend upon its terms and not on any
theory of its purpose.
137
AIR 2000 SC 3714, p. 3717.
138
(1985) 1 SCC 591, p. 613.
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10. Schedules
In many statutes, the Schedules are added in end of the enactment. Schedules are considered
as a part of the statute. They generally provide as to how claims under the Act can be
enforced or as to how the powers vested by virtue of the statute are to be exercised.
The Schedules are appended towards the end. The purpose of attaching Schedules in an
enactment is to avoid encumbering the sections with matters of excessive details. They
mainly contain details and prescribed forms for working out the policy underlying the
sections of the statute.
In Aphali Pharmaceuticals Ltd. v State of Maharashtra139, it was held that if the language is
not so clear, the provision in the Schedule may be construed as confined to the purpose
indicated by its heading and the section in the statute to which it appears connected. In case
of conflict between the body of the Act and the Schedule the former prevails.
In CIT (Agr.), W.B. v Keshab Chandra Mandal 140 , it was observed that at times, the
prescribed form in the schedule may contain some imperative requirement and may be
mandatory. E.g., a form of return of agricultural income, incorporated in Rules to the Bengal
Agricultural Income-tax Act, 1944 which contained a foot note requiring that the declaration
of the return of income ‘shall be signed in the case of an individual by the individual himself’
was construed as mandatory; and it was held that it was not a sufficient compliance that the
return was signed by an illiterate person by the pen of his son.
139
AIR 1989 SC 2227, p. 2239.
140
AIR 1950 SC 265.
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11. Exceptions & Saving Clauses

Exceptions are generally added to an enactment with the purpose of exempting something
that would otherwise fall within the ambit of the main provision. An exception affirms that
the things not exempted are covered under the main provision.
In case a repugnancy between the operative part and an exception, the operative part must be
relied on. Some decisions have, however, been given on the principle that an exception,
being the latter will of the legislature, must prevail over the substantive portion of the
enactment.
Saving clauses are generally appended in cases of repeal and re-enactment of a statute. By
this the rights already created under repealed enactment are not disturbed nor are new rights
created by it. A saving clause is normally inserted in the repealing statute. In case of a clash
between the main part of a statute and a saving clause, the saving clause has to be rejected.
In Shah Bhojraj Kuverji Oil Mills v Subhash Chandra Yograj Sinha141, the Supreme Court
did not allow the use of a saving clause, which was enacted like a proviso, to determine
whether a section in an Act was retrospective in operation.
In Agricultural and Processed Food Products v Union of India142, the Supreme Court while
interpreting the saving clause in the Export Council Order, 1988 held that the clause only
saved the rights which were in existence before the order was issued and it did not confer any
new rights which were not in existence at that time.
In Director of Secondary Education v Pushpendra Kumar143, the Supreme Court held that a
provision in the nature of an exception cannot be so interpreted as to subserve the main
enactment and thereby nullify, the right conferred by the main enactment.
In Collector of Customs v M/s. Modi Rubber Limited 144 , the Supreme Court held that
whatever there is a provision in the nature of an exception to the principal clause thereof; it
must be construed with regard to the principal clause.
141
AIR 1961 SC 1596.
142
AIR 1996 SC 1947.
143
AIR 1998 SC 2230.
144
AIR 2000 SC 1844.
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12. Transitional Provisions

At times a statute contains a transitional provision which enacts as to how the statute will
operate on the facts and circumstances existing on the date it comes into operation. However,
it is not possible to give a definitive description of what constitutes a transitional provision.
Therefore, the construction of such a provision must depend upon its own terms.
One feature of a transitional provision is that its operation is expected to be temporary, in that
it becomes spent when all the past circumstances with which it is designed to deal have been
dealt with although it may be envisaged that could take a considerable period of time while
the primary legislation continues to deal indefinitely with the new circumstances which arise
after its passage.
A transitory provision may also be of the nature that it remains in force till the main
provisions of the statute come into operation.
In K.S. Paripoornan v State of Kerala145, S 30 of the Land Acquisition (Amendment) Act,

1984 is held as one such provision which enacts as to what extent the new provisions will
apply to proceedings pending on the commencement of the Amending Act or in other words
as to how far the new provisions which amended substantive provisions of the Parent Act are
retrospective.
13. Articles
Articles also have effect on interpreting a statute. ‘The’ is the word used before nouns, with a
specifying or particularizing effect as opposed to the indefinite or generalizing force of “a” or
“an”. It determines what particular thing is meant. i.e., what particular thing we are assumed
to be meant. “The” is always mentioned to denote a particular person or a thing.146
145
JT 1994 (6) SC 182, p. 216.
146
Shri Ishar Alloy Steels Ltd. v Jayswals New Ltd. (2001) 3 SCC 609.
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External Aids to Construction
1. Parliamentary History
The most important function of Legislature is enacting the laws. In the process of making of
a law, various stages are involved. According to the procedure of the House, a Bill has to
pass through 3 stages commonly known as the First Reading, Second Reading & Third
Reading.
At the First Reading, the Bill is introduced in the House and no discussions take place.
The second is the consideration stage in which the Parliament holds discussion and debates
on that Bill and the Bill is discussed clause by clause. At this stage, amendment to the Bill
may also be moved. A record is maintained of the discussions and debates held in the
Parliament.
At the Third stage, a brief general discussion of the Bill takes place and is finally passed.
When the bill is passed by one House, it is sent to other House where similar process is
repeated. Unless both the Houses approve a Bill, it cannot be deemed to have been passed.
When a Bill is passed by both the Houses, it is sent to President of India for his assent. All
the documents, records and material created during various stages through which legislation
passes before attaining finality, constitute ‘Parliament History’.
The Parliamentary History would mainly include:-

a. Debates on a Bill in the process of its passing
b. Statement of Objects and Reasons accompanying a Legislative Bill
c. Reports of Commission, Inquiry Committee, Joint Parliamentary Committee or Study
Group.
When the question as to whether the legislative intent can be gathered from the Parliamentary
History of the statute and how far it can be helpful for interpreting an ambiguous provision
can be understood by analyzing the various practices and views adopted so far.
They are –
i. English view
a. Traditional view
b. Modern view
ii. American Practice
iii. Indian Practice
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English view – Traditional view
The English Traditional view outright rejects Parliamentary History as a good aid to
construction. According to this view, the intention of framers of law cannot be gathered form
Parliamentary History of that law. However, the courts are entitled to consider:
• Those external facts which are necessary to understand the subject matter.
• The mischief which is intended to be remedied by the present statute.
• The reports of commissions preceding a statutory measure as used as evidence of
surrounding circumstances with reference to which the words in the statute are used.
In Black Clawson International Ltd. v Papierwerke Waldhof Aschaffenburg, A.G.147, it was

held by the House of Lords that the report of a committee presented to Parliament prior to
enactment could be looked for finding out the state of law at the time of passing of the Act and
the mischief intended to be remedied by the Parliament but the same report could not be relied
upon for finding out the intention of Legislature.
Criticism
This view was severely criticized and argued that the true spirit of law lies in its reason. The
report of the committee reflects the state of law at the time of passing of the Act and the mischief
which was required to be remedied. As such, the report of the committee lays foundation of new
enactment. When it is accepted that the key to opening any law is the reason and the spirit of law
and the statutes is best interpreted when it is known why it was enacted, then steps taken for
understanding the object of law and the mischief intended to be dealt with by the statute should
be part of process for getting its meaning.
English view – Modern view
According to the Modern view, the parliamentary material is the background material which
unfolds the position of common law, the mischief for which the common law did not provide and
defects or shortcomings in the common law due to which it failed to effectively control the
mischief. On this basis, a new law has been enacted and the object of new law is to remedy the
mischief reflected in the parliamentary material, therefore the intention of Legislature can be
deduced from such material. In view of this, the parliamentary material should be admitted as
legitimate aid to construction. Instead of rejecting it outright, it should rather be utilized for
gathering the legislative intent and for resolving the ambiguity. The same was reiterated in
Pepper v Hart.148
147
(1975) 1 All ER 810 HL.
148
(1993) 1 All ER 42.
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American Practice
In contrast to the traditional English practice, under the American practice the old rule of
exclusion of parliamentary history has been very much relaxed. Although it is generally accepted
that ‘debates in Congress are not appropriate or even reliable guides to the meaning of the
language of an enactment’149, it has been held that the said rule ‘is not violated by resorting to
debates as a means of ascertaining the environment at the time of enactment of particular law,
that is, the history of the period when it was adopted’150. It also appears to have been well
accepted that ‘the reports of a committee, including the bill was introduced, changes made by
the committee chairman in charge of it, stand upon a different footing, and may be resorted to
under proper qualifications’151.
Criticism
The American practice was criticized as ‘a badly over-done practice of dubious help to true
interpretation, characterized as ‘the custom of re-making statutes to fit their histories’, and was
also pointed out that the practice, ‘poses serious practical problems for a large part of legal
profession’. Prof. Reed Dickerson after analyzing the uses and abuse of legislative history
concludes that ‘the more realistic approach to legislative history would be to end or severely
limit its judicial use’. On the other hand, those who favor the liberal use of legislative materials
for purposes of construction say that ‘the meaning of the words of a statute be resolved in the
light of their setting in the legislative process rather than in the light of the intuition of the judge.
According to this view the liberal use of legislative material is one of the modern efforts ‘so that
judicial law-making under the guise of interpretation may by reduced to its necessary minimum.
Indian Practice
Amidst the fluctuating views of the Supreme Court of India as to admissibility of Parliamentary
History as external aid to construction, it is a well settled position at present that the
Parliamentary History can be made use of in resolving ambiguities of the language of a provision
to a limited extent.
a. Use of Debates on a Bill for resolving ambiguity
In K.S. Paripoornan v State of Kerala 152 , it was held that speeches made by Members of
Parliament in course of debate on a Bill cannot be admitted as aid to construction. But statement
made by a Minister in the House who had moved the Bill in Parliament can be referred to find
out the object of the proposed law and to ascertain the mischief sought to be remedied by
legislation. However, such statement cannot be relied upon for construing a statutory provision.
149
United States v St. Paul, M. & M. Rly. Co.
150
Standard Oil Co. of New Jersey v United States.
151
United States v St. Paul, M. & M. Rly. Co.
152
AIR 1995 SC 1012.
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In Ashwini Kumar Ghose v Arabinda Bose153, the amendments considered during the progress
of the Bill were also declared inadmissible as a valid to construction. The observations of the
Supreme Court are, “it was urged that acceptance or rejection of amendments to a Bill in the
course of Parliamentary proceedings forms part of the pre-enactment history of a statute and as
such might throw valuable light on the intention of the Legislature when the language used in the
statute admitted of more than one construction. We are unable to assent to this proposition. The
reason why a particular amendment was proposed or accepted or rejected is often a matter of
controversy, and without the speeches bearing upon the motion, it cannot be ascertained with any
reasonable degree of certainty. And where the Legislature happens to be bicameral, the second
chamber may or may not have known to such reason when it dealt with the measure.”
In Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter)154, the Supreme
Court held by majority that one of the known methods to discern the intention behind enacting a
provision of the Constitution and also to interpret the same is to look into the historical
legislative developments, Constituent Assembly Debates or any enactment preceding the
enactment of the constitutional provision.
In Union of India v Harbhajan Singh155, extensive reference were made to speeches in the
Constituent Assembly to support the construction that wealth tax on net wealth including capital
value of agricultural lands fell within the residuary power of Parliament.
In T.M.A. Pai Foundation v State of Karnataka 156 , it was held that Constituent Assembly
Debates can legitimately be taken into consideration for construction of provisions of the
Constitution.
In Novartis AG v Union of India & Ors157, the Parliamentary Debates were relied on by the
Supreme Court while interpreting provisions of the Patent Act, 1970. Here, the Court referred to
the Parliamentary Debates preceding the 2005 amendment and noted that the amendment to S 3
(d) was the only provision cited by the Government to allay the fears of the Opposition
concerning the abuses to which a product patent in medicines may be vulnerable. Hence, it was
held that the amendment to the provision was meant especially to deal with chemical substances,
and particularly pharmaceutical products and that, in addition the standards laid down in sections
2 (1) (j) and (ja), the amended portion of S 3 (d) clearly sets up a second tier of qualifying
standards for chemical substances / pharma products in order to leave the door open for true and
genuine inventions but, at the same time, to check any attempt at repetitive patenting or
extension of the patent term on spurious grounds.
153
AIR 1952 SC 369.
154
(2002) 8 SCC 237.
155
AIR 1972 SC 1061.
156
(2002) 8 SCC 481.
157
(2013) 6 SCC 1, p. 158.
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Limitations of Debates on a Bill as External Aid to construction
i. When the terms of the statute are plain and clear, debates on a Bill in the process of its
passing cannot be resorted to.
ii. Where the words used in the language bear more than one meaning and hence there exists
an uncertainty, then only debates on a Bill can be looked into for arriving at true
legislative intent.
iii. A speech made in the course of the debate on a Bill is only indicative of the subjective
intent of the speaker.
iv.
b. Use of Statement of Objects and Reasons accompanying a Legislative Bill for resolving
ambiguity
In State of West Bengal v Subodh Gopal Bose158, the reasonableness of restrictions imposed by
the Act on fundamental rights guaranteed u/Art 19 (1) (f) of the Constitution was in question.
The Statement of Objects and Reasons was referred to for judging the same and the Court
observed that it is well settled that the Statement of Objects and Reasons is not admissible as an
aid to the construction of a statute and further added that it is not referring to it for the purpose of
construing any part of the Act or of ascertaining the meaning of any word used in the Act but
referring it only for limited purpose of ascertaining the conditions prevailing at the time which
actuated the sponsor of the Bill to introduce the same and the extent and urgency of evil which
he sought to remedy.
In District Mining Officer v Tata Iron & Steel Co.159, the Statement of Objects & Reasons,
which occurred as a prefatory note after preamble in the Act, was used to limit the validation by
the Cess and Other Taxes on Minerals (Validation) Act, 1992 to cess and taxes already collected
till 4th April 1991.
In Sushil Kumar Sharma v Union of India160, S 498-A of IPC was interpreted by the Court, in
the light of Statement of Objects and Reasons and observed that while interpreting a provision of
the Court only interprets the law and cannot legislate it. If a provision of law is misused and
subjected to abuse of process of law, it is for the Legislature to amend, modify or repeal it if
deemed necessary.
In Mackinnon Mackenzie & Co. Ltd. v Mackinnon Employees Union161, the Court relied on the
Statement of Objects and Reasons to the Amendment Bill which inserted S 25FFA into the
Industrial Disputes Act, 1947, and held that the requirement of serving a notice to the appropriate
Government at least 60 days prior to the intended closure of the department / unit was mandatory
158
AIR 1954 SC 92.
159
AIR 2001 Sc 3134.
160
(2005) 6 SCC 281.
161
(2015) 4 SCC 544, p. 561-567.
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and not directory, as the provision affords statutory protection to the workmen against arbitrary,
unreasonable and unfair retrenchment.
Limitations of Statement of Objects and Reasons as External Aid to construction

i. Statement of Objects and Reasons can be referred to for the limited purpose of finding
out the background of law, mischief that was prevalent and was sought to be cured and
the object behind the enactment.
ii. Statement of Objects and Reasons is not admissible as an aid to the construction of a
statute.
iii. Statement of Objects and Reasons cannot be used to frustrate the provisions of the
enactment particularly when the words used therein are sufficiently clear.
iv. Statement of Objects and Reasons cannot be used for deriving legislative intent and to
interpret the sections accordingly. Courts have to interpret the sections as they find them
and not by the Statement of Objects and Reasons.
v.
c. Use of Reports of Commission, Inquiry Committee, Joint Parliamentary Committee or
Study Group for resolving ambiguity
In Mohd. Hanif Qureshi v State of Bihar162, there was various State Legislations which banned
the slaughter of certain animals. The constitutional validity of these laws was challenged and the
Supreme Court observed that there is a presumption as to constitutionality of a statute and to
sustain the same, the Court may take into consideration matters of common knowledge, matters
of common report and the history of the times and may also assume every state of facts which
can be conceived to be existing at the time of legislation. The Court referred to Religious Books,
Report of Gosamvardhan Enquiry Committee of UP (1953), Report on Marketing of Cattle in
India, Report of Marketing of Hides in India, the First and Second Five Year Plans,
Memorandum of Nutrition Advisory Committee on Human Nutrition vis-à-vis Animal Nutrition
in India, Report of Cattle Preservation and Development Committee of the Government of India,
1948 etc.
In Express Newspapers (Pvt.) Ltd. v Union of India 163 , the Court referred the Press
Commission’s Report.
In Bhikusa Yamasa Kshatriya (P) Ltd. v Union of India 164 , where Reports of Royal
Commission on Labour in India, 1929; and Labour Investigation Committee, 1942 were taken
into account to uphold the constitutionality of S 85 of the Factories Act, 1948.
162
AIR 1958 SC 731.
163
AIR 1958 SC 578.
164
AIR 1963 SC 1591.
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In RS Nayak v AR Antuley 165 , the Court held that report of the Committee, report of Joint
Parliamentary Committee and the report of the Commission constituted for collecting the
information leading to the legislation are permissible external aids to construction of the Act.
In Mithilesh Kumari v Prem Bihari Khare166, the Law Commission had prepared a report on
Benami Transactions. Based on this report, Benami Transaction (Prohibition) Act, 1988 was
enacted. In this case, while holding that S 4 of the Act is retrospective in nature, the Court relied
upon this report and observed that where a particular enactment or amendment is the result of
recommendation of the Law Commission of India, it may be permissible to refer to the relevant
provision.
In Samantha v State of AP167, the Court interpreted para 5 (2) of the Fifth Schedule of the
Constitution of India and for this purpose it made reference to the reports of Drafting Committee
and Sub-Committees of the Constituent Assembly, the Draft Constitution and the changes made
thereafter in giving the Constitution the final shape.
Cases in which aforesaid reports were not admitted
In CIT, AP v Jayalakshmi Rice and Oil Mills Contractor Co.168, the Court observed that the
report of Special Committee appointed by the Government of India to examine the provisions of
the Bill, which later became the Partnership Act, could not be utilized for interpreting the
provision of the Act.
In Shashkant Laxman Kale v Union of India169, it was held that for the purposes of proper
construction, such a wide range of investigation will not be permitted even thought the Court is
entitled to look into the surrounding circumstances or historical facts for purposes of discerning
the mischief or evil sought to be remedied.
165
AIR 1984 SC 684.
166
AIR 1989 SC 1247.
167
AIR 1997 SC 3297.
168
AIR 1971 Sc 1015.
169
AIR 1990 SC 2114.
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2. Historical Facts and Surrounding Circumstances

The state of things / affairs existing at the time when a law was enacted are called ‘Historical
Facts and Surrounding Circumstances’. Even the evils prevailed at the time when statute was
passed also fall within the ambit of this term. Such evils are sought to be remedied by the
enactment. The method of historical interpretation is employed when the language of the
statute does not give any clue as to the intention of the Legislature. In this method, the courts
consider the circumstances prevailing at the time of original enactment and decipher the
intention. This intention is given effect to. E.g. Heydon’s Case.
The function of the court being to find out the intention of the law makers, the court has to
discover that particular meaning of a given word in an enactment which the law makers
intended it to be given. In case of an older statute the knowledge of the historical facts
relating to them helps in understanding the meaning of ambiguous words and expressions
used in them. The court may take into account the historical facts and surrounding
circumstances prevailing at the time of enacting a statute. But the inferences drawn from it
cannot be used to defeat the clear language employed in the enactment itself.
In Auckland Jute Co. Ltd. v Tulsi Chandra Goswami 170 , the Court observed that the
‘purpose of appreciating the scope and object of an old statute and for explaining its language
which may be susceptible of different meanings, and it may be useful to remember the well
known historical facts that led to the enactment’.
In Bridge & Roofs Co. Ltd. v Union of India171, the Court in deciding the production bonus
was not included in the definition of ‘basic wages’ in S 2 (b) of the Employees’ Provident
Funds and Miscellaneous Provisions Act, 1952, which expressly excluded ‘bonus’, observed
that the exclusion of bonus without any qualification must be preferable to every kind of
bonus prevalent in the industrial field before 1952 and in that connection the court noticed
the circumstance that production bonus was prevalent in industrial concerns long before
1952.
In National Seeds Corporation Limited v Madhusudhan Reddy & Anr.172, the Supreme
Court has considered the background in which the Consumer Protection Act, 1986, was
enacted as well as its salient features to hold that framers / growers would fall within the
wide definition of ‘consumer’ in S 2 (1) (d) of the Act, and would be entitled to claim
compensatory relief for loss suffered on account of defective seeds supplied to them, and that
arbitration was not the only available remedy, but rather an optional remedy. Historical
evolution of a provision in the statute is also sometimes a useful guide to its construction.
170
AIR 1949 FC 153, p. 169.
171
AIR 1963 SC 1474, p. 1478.
172
(2012) 2 SCC 506.
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3. Subsequent Social, Political and Economic Developments and Scientific Invention

Social, Political and Economic Developments and Scientific Inventions are dynamic,
ongoing process which in a country keeps changing with passage of time and after couple of
years depicts totally altered panorama. In the language of the law enacted by the Legislature,
the words are used with a connotation of that time when law was passed. It cannot be
expected what while legislating the Parliament could foresee and predict the future
developments and take care of them by the phraseology used. Therefore such words should
generally receive the same meaning. But the fact is that a law is enacted to cater to the social
needs for a long time to come i.e. law remains in force perpetually, unless expired or
abrogated. The court is bound to construe a statute in such a manner so as to remove
hardships and make the law effective and workable. Court is not barred from searching for
historical or original meaning of a statute but referring to historical circumstances prevailing
at the time when law was passed, does not mean that the language employed in the modern
statute becomes inapplicable to social, political and economic developments or to scientific
inventions not known at the time of the passing of the statute.
In A.G. v Edison Telephone Co. of London173, the same principles were applied and the
general words are construed to include new inventions and technological advances not
known at the time when the Act was passed. It has, accordingly, been held that telephone is
‘telegraph’ within the meaning of that word in the Telegraph Acts, 1863 and 1969 although
telephone was not invented in 1869.
In re, Regulation and Control of Radio Communications in Canada 174 , the word
‘broadcasting’ has been held to be covered by the word ‘telegraph’ as used in the phrase
‘Telegraph & Other words and undertaking’ in S 92 (1) (a) of the British North America Act,
1867.
In R v Brislan, Ex parte, Williams & Telstra Corporation Ltd. v Asian Performing Right
Association175, the radio broadcasting has been held to be included in the expression ‘postal,
telegraphic, telephonic and other like services’ u/S 51 (5) of Australian Constitution. In
certain circumstances, general language originally designed apply to an earlier technology
may apply to supervening technology. The new technology of music on hold i.e. music
played when the telephone lines are engaged, by a telecom company was held to amount to
‘diffusion service’ and ‘broadcast’ with the Copyright Act, 1968.
173
(1880) 6 QBD 244.
174
(1932) AC 304 (PC).
175
(1935) 54 CLR 262 & (1997) 71 ALJR 1312, pg. 1339.
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In Senior Electric Inspector v Laxminarayan Chopra176, it was observed that ‘it is perhaps
difficult to attribute to legislative body functioning in a static society that its intention was
couched in terms of considerable breadth so as to take within its sweep the future
developments comprehended by the phraseology used… Unless a contrary intention appears,
an interpretation should be given to the words used to take in new facts and situation, if the
words are capable of comprehending them’. Accordingly, the Supreme Court held that the
definition of ‘telegraph line’ in the Indian Telegraph Act, 885, which is included by reference
in the Indian Electricity Act, 1910, is wide enough to take in electric lines used for the
purpose of wireless telegraph.
In Laxmi Video Theatres v State of Haryana177, the definition of ‘cinematograph’ contained

in S 2 (e) of the Cinematograph Act, 1952 and in Cinema Regulation Acts enacted by the
States in 1952 will cover video cassette recorders / players (developed in 1970s) for
representation of motion pictures on a television screen.
In State v SJ Choudhary178, the word ‘handwriting’ in S 45 of the Evidence Act, 1872 will
embrace typewriting although it was only in 1874 that the first practical typewriter was
marketed. In State of Maharashtra v Dr. Praful B. Desai179, it was held that the evidence
taken of a witness in America by video conferencing in India where the accused is being tried
will satisfy the requirement of evidence taken in presence of the accused u/S 273 of the Code
of Criminal Procedure of 1973 during the legislation of which the technique of video
conferencing had not developed. In Central Electricity Regulatory Commission v National
Hydroelectric Power Corporation Ltd.180, it was held that court notices can now be sent by
email in commercial litigation.
In Selvi v State of Karnataka181, the Supreme Court declined to read the expression ‘such
other tests’ to cover narco analysis technique; polygraph examination and Beep Test as
testimony obtained after involuntary administration of these tests would amount to
testimonial compulsion offending Art 20 (3) and would also be restrictive of personal liberty
of the accused u/ Art 21. Further other enumerated tests in the explanation are examination of
bodily substances and the safe inference was that Parliament did not deliberately enumerate
the impugned tests in the explanation.
176
AIR 1962 SC 159.
177
AIR 1993 SC 2328.
178
AIR 1996 SC 1491.
179
2003 AIR SCW 1885.
180
(2010) 10 SCC 280.
181
(2010) 7 SCC 263.
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Constitutional Acts
Language of the Constitution is given a liberal construction so as to include within its ambit
the future developments in various fields of human activity than in restricting the language to
the state of things existing at the time of the passing of the constitution. A constitution is
intended as an enduring instrument, not only designed to meet the needs of the day when it is
enacted but also the needs of the altering conditions of the future.
In SP Gupta v Union of India182, the Supreme Court held by majority that the power of
appointment and transfer of judges is an executive function and the opinion of Chief Justice
of India, expressed in the process of consultation, thought of great weight, has no primacy
and is not binding on the President but the order of appointment or transfer is open to judicial
review.
But in Supreme Court Advocates-on-Record Association v Union of India183, a 9 Judges

Bench by majority gave primacy to the opinion of the CJI as symbolizing the judiciary and
virtually equated consultation to ‘concurrence’ even though a proposal for the word
‘concurrence’ was not accepted in the Constituent Assembly during the making of the
Constitution. The executive interference in the appointment and transfer of judges which was
telling upon the independence of the judiciary, led to this change in the attitude of the court.
And it was also held that if the appointment or transfer was made on the recommendation of
the CJI it will not be open to judicial review.
Art 21 of the Constitution is another example which was narrowly construed in AK

Gopalan’s case (1973) and then expanded in Maneka Gandhi v Union of India, Ashok v
Union of India (1997) etc. wherein it was held that protection u/Art 21 is necessary to all
those aspects of life which go to make a man’s life meaningful, complete and worth living.
Another example is the interpretation of Art 368 from the cases of Shankar Prasad Singh v
Union of India and Sajjan Singh v State of Rajasthan 184 wherein the Supreme Court
conceded full amending power to Parliament which was later held in Kesavananda Bharati v
State of Kerala 185 that Parliament is conferred with powers to make amendments to the
Constitution, provided such an amendment shall not destruct certain undefined sacrosanct
basic structures of the Constitution.
182
AIR 1982 SC 149.
183
AIR 1994 SC 268, p. 442.
184
AIR 1951 SC 458 & AIR 1965 SC 845.
185
AIR 1973 SC 1461.
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4. Dictionaries
Dictionary is a book listing and explaining the words of a language. it contains meanings of
various words used in the language and provides précised definition of each word.
Alternative meanings borne by a word are also described. The meaning given out by the
same word when used in different context is also mentioned in the dictionary. It is well
settled by the Supreme Court now that if a word is not defined in the statute, dictionary may
be consulted and a meaning may be selected having regard to the context. But where the
expression is defined, it will have same meaning and dictionary meaning is of no help.
Similarly, dictionary meaning cannot to be adopted when a plain reading of the provision
brings out what was intended.
In Mangoo Singh v Election Tribunal186, S 13 (D) (g) of U.P. Municipalities Act, 1916 was
in question which provides that a person shall be disqualified for being chosen as or for being
member of a Municipal Board if he is in arrears in payment of Municipal Tax or other dues
in excess of one year demand, provided that the disqualification shall cease as soon as arrears
are paid. At the time of filing of nomination for contesting election, the appellant owed
Municipal Taxes in excess of one year’s demand. Before the date of poll, the appellant paid
the amount. The appellant contested the election and was elected. But his election was set
aside in view of the said provision. He contended before the Supreme Court that ate of poll
was important and not the date of filing the nomination and no notice was served upon him.
Supreme Court rejected the contention and observed that the word ‘demand’ may mean
something called for or asked for also, as contended by the appellant but in present context it
means taxes, arrears or dues.
In State of Orissa v Titagarh Paper Mills Co. Ltd. 187, the Supreme Court observed that
dictionary meaning of a word cannot be looked at where word has been statutorily defined.
But where word not defined, courts may take aid of dictionaries for meaning of word bearing
in mind that a word is used in different senses according to its context. It was held that timber
and sized or dressed logs are one and the same commercial commodity. Beams, rafters,
planks etc. are also timber.
In New Chelur Manufacturers (P) Ltd. v CCE188, the dictionary meaning was relied upon
for determining the meaning of the word ‘furniture’.
In ICICI Bank V Municipal Corporation of Greater Bombay 189 , S 328-A of Bombay

Municipalities Corporation Act, 1888 was in question in which the word ‘advertisement’ has
186
AIR 1957 SC 871.
187
AIR 1985 SC 1293.
188
(1997) 94 ELT 467.
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been used. This word was interpreted by the Supreme Court after consulting several
dictionaries, viz. Black’s Law Dictionary, Law and Commercial Dictionary, New
Encyclopedia Britannica Vol. I, Collins Dictionary of English Language and Chambers
Dictionary and the dictionary meaning of the word ‘advertisement’ was considered. It was
held that the context in which the word ‘advertisement’ has been used in S 328-A of the Act
and in commercial and ordinary parlance, it must have direct or indirect connection with
business, trade or commerce carried out by the advertiser. It must have some commercial
exposition. The advertisement would be for the purpose of directing or soliciting the
customers to the product or service prominently shown in the advertisement. Therefore an
advertisement within the meaning of S 328-A of this Act must primarily have a commercial
purpose and should be indicative of business activity of the displayer with a view to attract
the attention of people to its business.
5. Text Books
Where the language of a statute is not precise and words employed therein are capable of
bearing more than one meaning, the text books may be referred to resolve the ambiguity.
The exposition and analysis of statute by a text writer of repute may also help to understand
the meaning of an enactment and hence may be consulted for ascertaining the meaning of the
ambiguous word or language. To name a few, Manu, Yajnavalkya, Vijneshwara,
Jimutvahana, Kautilya are frequently quoted by the Courts with approval. E.g. in
Kesavananda Bharati v State of Kerala, where a large number of text books were quoted in
arriving at the decision.
However, reference to text books shall not bind the court in any manner. It shall be the
discretion of the court either to accept or to reject the meaning given in the text book.
189
(2005) 6 SCC 404.
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6. Reference to Other Statutes

The other statutes are only an external aid to the interpretation. Another statute can be used in
interpreting the statute under construction only when it is shown that the two statutes are
similar. Relying on interpretation of an expression given under other Acts and bypassing the
definition clause expressly provided in the Act concerned is not permissible.
a. Statutes in PARI MATERIA

Statutes in PARI MATERIA means, statutes dealing with the same subject matter or
forming part of the same system. The rule of context which says that a statute must be
read as a whole as words are to be understood in their context, permits reference to
other statutes in PARI MATERIA. The word PAR must be confounded with the word
SIMILIS. It is a phrase applicable to public statutes or general laws made at different
times and in reference to the same subject.
In R v Laxdale190, Lord Mansfield emphasized that “where there are different statutes
in PARI MATERIA thought made at different times, or even expired, and not
referring to each other, they shall be taken and construed together, as one system and
as explanatory of each other.
It is not necessary that entire subject-matter in the two statutes should be identical
before any provision in one may be held to be in PARI MATERIA with some
provision in the other. In State of Madras v A Vaidyanath Aiyer191, S4 of Prevention
of Corruption Act, 1947, directs that on proof that the accused has accepted any
gratification other than the legal remuneration, it shall be presumed unless the
contrary is established by the accused that the gratification was accepted as a bribe. It
was held to be in PARI MATERIA with the subject-matter dealt with by the Indian
Evidence Act, 1872. The definition of the expression ‘shall presume’ in the Evidence
Act has been utilized to construe the words ‘it shall be presumed’ in S4 of the
Prevention of Corruption Act, 1947.
In State of MP v Swaroop Chand192, S 22 of the MP Van Upaj (Vyapar Viniyaman)

Adhiniyam, 1969 was construed. The Adhiniyam provided for release of receptable
or vehicle on payment of its value but not for confiscation in case the value was not
paid. This Adhiniyam applied to certain specified forest produce and provided for
their seizure along with receptable or vehicle used for transportation in contravention
of the provisions of the Act and Rules; Section further provided that ‘nothing
contained in the Indian Forest Act, 1927 shall apply to specified forest produce in
matter for which provision is made in the Adhiniyam’. The Supreme Court held that
190
(1758) 97 ER 394, p. 395.
191
AIR 1958 SC 61, p. 65.
192
AIR 1997 SC 301.
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the provision for confiscation made in the Forest Act would apply to seizures made
under the Adhiniyam as this was a matter for which no provision was made in it.
Actually the Act and the Adhiniyam dealt with allied subjects forming part of the
same system and had to be read as complimentary to each other. Therefore, it was
rightly held that on matters not provided in the Adhiniyam but provided in the Act,
the provisions of the Act could be applied to the specified forest produce.
In Common Cause, A Regd. Society v Union of India193, Explanation 1 to S 77 (1) of

the Representation of the People Act, 1950 was interpreted. It provides that ‘any
expenditure incurred or authorized in connection with the election of a candidate by
the political party – shall not be deemed to be – “expenditure in connection with the
election incurred or authorized by the candidate.” In construing this provision, the
Court read Ss 13A and 139 (4B) of the Income-tax Act, 1961 and held that if a
political party is not maintaining audited and authentic accounts and is not filing
return of income, it cannot justifiably plead that it has incurred or authorized any
expenditure in connection with the election of a party candidate within the meaning
of Explanation (1) to S 77 (1) and that the said provision does not give protection to
the expenditure which comes from an unknown or black source. The Court noticed
that the main income of a political party comes from contributions from companies
which are permitted to make these contributions under the conditions laid down in S
293A of the Companies Act and are required to disclose them in their profit and loss
account.
In Jugal Kishore v State of Maharashtra194, it has been held that the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971
has to be read and construed along with the other Labour Laws then in force such as
the Industrial Disputes Act, 1947 and the Contract Labour (Regulation and Abolition)
Act, 1970. It was held that workmen claiming to be employed by a company
ostensibly through a contractor alleging this to be a camouflage to conceal the real
relationship cannot directly complain against the company under the Maharashtra Act
and they have to first raise an industrial dispute under the ID Act.
In Ahmedabad Pvt. Primary Teachers Association v Administrative Officer 195, the

definition of employee in S 2 (e) of the Payment of Gratuity Act, 1972 was construed
in the light of the definition of employee in other labor legislations and authoritative
pronouncements construing the definition of employee in them and it was held that
teachers cannot be said to be employed in any skilled, semi-skilled, or unskilled
193
AIR 1996 SC 3081, p.3087.
194
AIR 1989 SC 159, p. 162.
195
AIR 2004 SC 1426, p. 1431.
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manual, supervisory, technical or clerical work and, therefore, they do not fall under
the definition of employee.
In Bangalore Turf Club Ltd. v Regional Director196, ESI Corporation, the Supreme
Court held that the definitions of ‘shop’ in the Maharashtra Shops and Establishments
Act, 1948, and the Karnataka Shops and Commercial Establishments Act, 1961,
cannot be used to interpret the word ‘shop’ in the context of notifications issued under
the Employees’ State Insurance Act, 1948, because though all three Acts deal with
labor and workmen, in essence and spirit they have a different scheme and
application. Hence, preferring a purposive interpretation, Turf Clubs were held to be
duly covered under the term ‘shop’ for the purposes of ESI Act and the notifications
issued there-under.
It is settled law that words used in a particular statute cannot be used to interpret the
same word in a different statute especially when the two statutes are not PARI
MATERIA.
b. Help from Earlier Statutes
Use of same words in similar connection in a later statute gives rise to a presumption
that they are intended to convey the same meaning as in the earlier statute. Similarly,
when words in an earlier statute have received an authoritative exposition by a
superior court, use of same words in similar context in a later Act will give rise to a
presumption that Parliament intends that the same interpretation should also be
followed for construction of those words in the later statute.
In Greaves v Tofield197, Lord MacMillan observed that, ‘if an Act of Parliament uses
the same language which was used in a former Act of Parliament referring to the
same subject, and passed with the same purpose, and for the same object, the safe and
well-known rule of construction is to assume that the Legislature when using well-
known words upon which there have been well-known decisions uses those words in
the sense which the decisions have attached to them’.
In Heigh v Charles W. Ireland Ltd.198, it has been held that the rule will have no
application when the decisions on the earlier Act are not consistent or when they ar4e
in fact shown to be erroneous. It will also have no application to a purely
consolidating Act which affords no opportunity to Parliament of reconsidering the
196
(2014) 9 SCC 657, pp. 685-689.
197
(1880) 14 Ch. 563, p. 571.
198
(1973) 3 All ER 113, pp. 1149, 1150.
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previous Acts which are consolidated. It is not to be presumed that Parliament in any
subsequent Act dealing with a related but identical subject-matter has taken account
of and adopted as correct all judicial pronouncements as to the meaning of ordinary
English words appearing in a statutory instrument made under an earlier Act.
In Bengal Immunity Co. Ltd. v State of Bihar,199 while dealing with Art. 245 (1) and
246 of the Constitution which are in PARI MATERIA with Ss 99 (1) and 100 of the
Govt. of India Act, 1935, it was observed that, “It is a well-settled rule of construction
that where a statute is repealed and re-enacted and words in the repealed statute are
reproduced in the new statute, they should be interpreted in the sense which had been
judicially put on there under the Repealed Act because the legislature is presumed to
be acquainted with the construction which the courts have put upon the words, and
when they repeal the same words, they must be taken to have accepted the
interpretation put on them by the court as correctly reflecting the legislative mind.
In State of MP v GS Dall and Flour Mills200, it was held that just as the use of same
language in a later statute as was used in an earlier one in PARI MATERIA is
suggestive of the intention of the Legislature that the language so used in the later
statute is used in the same sense as in the earlier one, change of language in a later
statute in PARI MATERIA is suggestive that change of interpretation is intended.
After a statute is amended, the statute after that amendment, is to be read and
construed with reference to the new provisions and not with reference to the
provisions that originally existed. But if the terms of the enactment in the new shape
are sufficiently difficult and ambiguous, the consideration of its evolution in the
statute book is justified a proper and logical course. In RS Nayak v AR Antulay201,
the Supreme Court, on historical evolution of S 21 of Indian Penal Code, adopted as
an external aid to construction and held that an MLA was not and is not a ‘public
servant’ as defined in that section.
The change in the language does not always indicate the change in construction too.
The alteration in language in or by a later statute may be the result of many other
factors, for example, surplus usage of words may be omitted in a later statute, new
words may be added which make the meaning more clear which was already implied,
to improve the style of the statute wording may have been changed by the draftsman.
But where the existing words are given their natural and ordinary meaning it indicates
that there was no intention or alteration of meaning.
199
AIR 1955 SC 661, p. 749.
200
AIR 1991 Sc 772, p. 783.
201
AIR 1984 Sc 684.
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c. Help from Subsequent Legislation
Normally a later statute is not used as an aid to construction of an earlier statute.

Although the legislature has the authority to amend an earlier Act or to so declare its
meaning that the declaration offended the plain language of the earlier Act but the
later statute operates directly by its own force and not merely as an aid to construction
of the earlier statute. But the legislation which proceeds upon an erroneous
assumption of the existing law without directly amending or declaring the law is
ineffective to change the law.
In P V Murali v Andhra Pradesh202, Explanation II added to S 2 (22) of the AP

Charitable and Hindu Religious Institution and Endowments Act, 1987 was held to be
ineffective as it proceeded on the wrong assumption of the legal position that even
after the grant of pattas of land of a religious institution under the Andhra Pradesh
Inams (Abolition and Conversion into Ryotwari) Act, 1956, the property so granted
did not become the personal property of the grantees but continued to be religious
endowment.
In Indira Sawhney v Union of India203, it was observed that when an earlier Act is
truly ambiguous a later Act may in certain circumstances serves as a parliamentary
exposition of the former.
In Ammini v State of Kerala204, S 293 (4) of the Criminal Procedure Code, which
before its amendment used the expression ‘Director’ only was discussed. But after its
amendment Dy. Director and Assistant Director were also included with the Director.
The Supreme Court held that ‘Joint Director’ who was higher in rank to Dy. Director
and Assistant Director must be deemed to be included in ‘Director’ otherwise he
would have also been expressly included by the amendment and that this construction
was also applicable to the word ‘Director’ before the section was amended.
In State of Bihar v SK Roy205, the Coal Mines Provident Fund and Bonus Schemes
Act, 1948, before its amendment by the Act 45 of 1965, defined Coal Mine as
including all works, machinery, tramways and sidings, whether above or below
ground in or adjacent to or belonging to a coal mine. In interpreting this definition the
court derived assistance from the definition of coal mine as introduced by the
202
1996 (1) Scale 298, p. 304.
203
AIR 2000 Sc 498.
204
AIR 1998 SC 260, p. 265.
205
AIR 1996 SC 1995, p. 1998.
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amending Act and held that the conjunction ‘or’ proceeding the expression
‘belonging to the coal mine’ should be read as ‘and’.
In Anand Bros. Pvt. Ltd. v Union of India206, the issue before the Supreme Court
was whether a non-speaking award under the Arbitration Act, 1940, has been
correctly set aside on the ground that the arbitrator had not recorded ‘findings’ as was
required under the contract between the parties. The Court held that it is one of the
well-known canons of interpretation of statutes that when an earlier enactment is truly
ambiguous in that it is open to diverse meanings, the later enactment may in certain
circumstances serve as the parliamentary exposition of the former. Hence the Court
referred to the provisions of the Arbitration and Conciliation Act, 1996, which
repealed the Arbitration Act, 1940, to hold that the obligation to record ‘findings’
must be understood not only in light of the law laid down by the Court but also the
statutory prescription under the 1996 Act which now mandates recording of reasons
by the arbitrator.
In Assam Sillimanite Ltd. v Union of India207, S 4 A of the Mines and Minerals

(Regulation and Development) Act, 1957 did not, before amendment in 1986,
specifically provide for notice to the lessee before directing premature termination of
his lease. Even so it was held that notice was impliedly necessary and the amendment
supported this construction.
d. Incorporation of Earlier Act into Later

Incorporation of an earlier Act into a later Act is a legislative device adopted for the
sake of convenience in order to avoid verbatim reproduction of the provisions of the
earlier Act into the later. When an earlier Act or certain of its provisions are
incorporated by reference into a later Act, the provisions so incorporated become part
and parcel of the later Act as if they had been ‘bodily transposed into it’.
Incorporation of an earlier Act and mere reference of an earlier Act in a later Act are
two distinct things. In the case of mere reference, a modification, repeal or re-
enactment of the statute that is referred will also have effect for the statute which it is
referred, whereas in the case of incorporation, any change in the incorporated statute
by way of amendment or repeal has no repercussion on the incorporating statute.
A distinction is also drawn when what is referred to is not an earlier Act or any
provision from it but law on a subject in general. But it is sure that when any Act or
rules are adopted in any later Act or rules, such adoption normally whether by
206
(2014) 9 SCC 212, pp. 218 to 220.
207
AIR 1990 SC 1417, p. 1422.
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incorporation or mere reference takes in all the amendments in the earlier Act or rules
till the date of adoption.
In Ramsarup v Munshi208, the Punjab Presumption Act (Punjab Act 1 of 1913) came
into consideration. This Act defined ‘Agricultural Land’ by reference to the definition
of this expression contained in the Punjab Alienation of Land Act 1900 which was
repealed by the Adoption of Laws (3rd Amendment) Order 1951, but it was held by
the Supreme Court that the repeal of the Punjab Alienation of Land Act, 1900 had no
effect on the continued operation of the Punjab Presumption Act and the definition of
‘Agricultural Land’ incorporated in it.
In Mahindra and Mahindra Ltd. v Union of India209, S 55 of the Monopolies and

Restrictive Trade Practices Act, 1969 provides for an appeal to the Supreme Court
against the orders of the Monopolies and Restrictive Trade Practices Commission on
‘one or more of the grounds specified in S 100 of the CPC. S 100 of CPC was
substituted by the new section in 1976 which narrowed the grounds of appeal under
the section. In construing S 55 of the Monopolies and Restrictive Trade Practices Act
the Court held that S 100 of CPC as it existed in 1969 was incorporated in S 55 and
the substitution of new S 100 in the Code abridging the grounds of appeal had no
effect on the appeal u/S 55.
In Bharat Co-op Bank (Mumbai) Ltd. v Coop. Bank Employees Union 210 , the
Industrial Disputes Act, 1947 came into force from 1947 and S 2 (bb) was inserted in
1949 defining ‘banking company’ to mean a banking company as defined in S 5 of
Banking Cos. Act, 1949 having branches or other establishments in more than one
State and to include certain enumerated banks. By the same Amendment Act the
definition of ‘appropriate government’ was amended whereby in relation to any
industrial dispute concerning a banking company the Central Government was
declared to be the appropriate government. The definition of ‘banking company’ was
then limited to companies registered under the Companies Act and did not include co-
operative banks. However, by Act 23 of 1965 the provisions of the Banking
Regulation Act were made applicable to co-operative banks. The question before the
Supreme Court was whether after 1965 the definition of banking company in the ID
Act should be read as inclusive of co-operative banks. It was held that the definition
of banking company as inserted in the ID Act from Banking Companies Act was
incorporated therein and any further amendments to include co-operative banks in the
208
AIR 1963 SC 553, p. 558.
209
AIR 1979 SC 798, p. 811.
210
(2007) 4 SCC 685.
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definition could not be read in the ID Act and the appropriate government for the co-
op. banks was the State government and not the Central government.
In Rajputana Mining Services v Union of India211, it was held that when a later Act
extends the area of operation of an earlier Act by making suitable amendments in the
earlier Act itself, there is ‘neither precedent nor warrant for the assumption’ that the
earlier Act gets incorporated in the later, rather the amendments introduced by the
later Act get incorporated in the earlier Act and any further amendment of the earlier
Act is operative both in respect of its original area of operation as also in respect of its
extended operation to new area brought about by the later Act.
e. Codifying and Consolidating Statutes
Codifying Statutes – the purpose of a codifying statute is to present an orderly and

authoritative statement of the leading rules of law on a given subject, whether those
rules are to be found in statute law or common law.
The essence of a codifying statute is to be exhaustive on the matters in respect of

which it declares the law and it is not the province of a Judge to disregard or go
outside the letter of enactment according to its true construction.
In Commr. Of Wealth Tax v Chander Sen 212, in construing the Hindu Succession
Act, 1956, which is an Act to amend and codify the law relating to intestate
succession among Hindus, it is not permissible to apply the principles of Hindu law
on matters covered by the Act as a son inheriting his father’s separate property u/S 8
of the Act takes it as his exclusive property and the property does not become
coparcener property with his sons.
In Mumbai Kamgar Sabha, Bombay v Abdulla Bhai Faizulla Bhai213, it was held
that the Payment of Bonus Act, 1965 does not cover all categories of bonus and is
restricted to the subject of profit bonus. The result is that the Act speaks as a complete
Code on the subject of profit bonus and does annihilate by implication other different
and distinct kinds of bonus such as customary bonus.
Consolidating Statutes – the purpose of a consolidating statute is to present whole

body of statutory law on a subject in complete form, repeating the former statute.
211
AIR 1961 SC 56.
212
AIR 1986 SC 1753.
213
AIR 1976 SC 1455.
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A consolidating statute is not a mere compilation of earlier enactments. The object of

the consolidation is to make a useful Code which should be applicable to the
circumstances existing at the time when the Consolidating Act is passed. For this
object, all the statutory law bearing upon a particular subject is collect and is
transformed into a useful Code.
The provisions contained in a consolidating statute may have their origin in different
legislations, and if between two such provisions inconsistency occurs, it may be
legitimate to refer to respective dates of their first enactment for resolving
inconsistency.
There are three types of Consolidation Acts: -

• Pure consolidation i.e., re-enactment;
• Consolidation with correction and minor improvement, and
• Consolidation with Law Commission amendments
7. CONTEMPORANEA EXPOSITIO – Effects of Usage & Practice CONTEMPORANEA

EXPOSITIOEST FORTISSIMA IN LEGE)
CONTEMPORANEA EXPOSITION i.e., the effect of usage and practice means that words
of a statute will generally be understood in the sense which they bore when it was passed. It
is said that the said maxim is the best and strongest in law but this rule, however, does not
apply to modern statutes. The doctrine is confined to the construction of ambiguous language
used in very old statutes where indeed the language itself have had a rather different meaning
in those days.214
Earlier the Supreme Court refused to apply the principle of CONTEMPORANEA

EXPOSITIO to the Telegraph Act, 1885 and the Evidence Act, 1872, but it was referr3ed to
in the case of RS Nayak v AR Antuley in construing S 21 of IPC, 1860 and held that MLA is
not a public servant as defined in the Code.
In Supreme Court Advocates-on Record Assn. v Union of India215, the Court also referred
to the actual practice in the matter of appointment of judges of Supreme Court and High
Courts in context of interpreting Articles 74 and 124 of the Constitution and observed that
the practice being in conformity with the constitutional scheme should be accorded legal
sanction by permissible constitutional interpretation.
214
Governors of Campbell College etc. v Commr. Of Valuation, (1964) 1 All ER 705.
215
AIR 1994 SC 268, p. 431.
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In Municipal Corporation for City of Pune v Bharat Forge Co. Ltd.216, the principle of
CONTEMPORANEA EXPOSITIO is not decisive or controlling the question of
construction; it has only persuasive value. If the occasion arises, such interpretation may be
even disregarded and in a clear case of error court would without hesitation refuse to follow
such construction. Further, reliance on the noting in the file, not to interpret the notifications,
in question but to declare them as dead, is not permissible.
In Vinay Tyagi v Irshad Ali & Ors.217, the Supreme Court has held that though there is no
specific requirement u/S 173 (8) of the CrPC, 1973, to conduct ‘further investigation’ or file
‘supplementary report’ with the leave of the Court, the investigating agencies have not only
understood but also adopted it as a legal practice to seek permission of the courts to conduct
‘further investigation’ and file ‘supplementary report’, and will therefore have to be read
into, and is a necessary implication of S 173 (8). The doctrine of CONTEMPORANEA
EXPOSITIO will fully come to the aid of such interpretation as matters which are understood
and implemented for a long time and such practice that is supported by law should be
accepted as part of the interpretative process.
In Lohia Machines Ltd. v Union of India218, it was observed that, ‘although acquiescence
even for a long period does not make a void rule valid, but when rules are made by the
Government under earlier enactments on the basis of a particular construction of the enabling
section which is followed by omission of all concerned to dispute that construction for a long
time by challenging the validity of the rules and the enabling section is re-enacted without
any material change, an inference arises that the construction on which the rules proceeded
correctly represents the intention of Parliament and has its approval.
8. Foreign Decisions
On a question of construction of Indian statutes sobered use of foreign decisions of countries
following the same system of jurisprudence as ours and rendered on statutes in PARI
MATERIA has been permitted by practice in Indian Courts.219
The assistance of such decisions is subject to the qualification that prime importance is
always to be given to the language of the relevant Indian statute, the circumstances and the
sitting in which it is enacted and the Indian conditions where it is to be applied and that it is
not to be forgotten that there is always an element of risk in taking ready and hasty assistance
from such decisions.
216
(1995) 3 SCC 434.
217
(2013) 5 SCC 762, p. 793.
218
(1985) 2 SCC 197.
219
Ranjit Udeshi v State of Maharashtra, AIR 1965 SC 881.
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With the enforcement of the Govt. of India Act, 1935, decisions rendered in interpreting
Australian and Canadian Constitutions began to be listened with respect but caution was
again administered in applying them without proper qualifications. The same attitude of
respect with caution has been followed by the Supreme Court after advent of the Constitution
which because of incorporation of Fundamental rights, has given more access to American
precedents.
When an Indian Act is modeled on a prior English Act, decisions construing the provisions of
the English Act are referred as helpful guide for construing corresponding provisions of the
Indian Act. For example, the Court referred to M’Naghten’s case for interpreting and
applying the defense of insanity in S 84 of IPC which is modeled on the English law.
Another example is while construing the common place word ‘vegetable’ in a taxing statute,
reference was made to a Canadian decision interpreting the word in a similar statute.220
In cases concerning an international convention, ‘it is obviously desirable that decisions in

different jurisdictions should, so far possible, be kept in line with each other’. Therefore, in
such cases foreign decisions are more readily used for guiding the court.221
220
Ramavatar v Assistant ST Officer, AIR 1961 SC 1325.
221
T v Secretary of State for the Home Dept., (1996) 2 All ER 865.
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Subsidiary OR Other Rules of Interpretation
i) Rules of Plain and Ordinary Meaning

ii) Language should be read as it is / Rule of literal construction
iii) Regard to subject and object
iv) Regard to consequences
v) Conjunctive and Disjunctive words
vi) Same word to bear Same meaning unless otherwise intended
vii) Use of Different Words / Different words are not used in same sense
viii) Rule of Last Antecedent
ix) Legal Fiction
x) Non Obstante Clause
xi) Mandatory and Directory Provisions
xii) Rules of Construction of General words
xiii) Expressio unius est exclusion alterius
xiv) Expressum facit cessary tacitum
xv) Generalia specialibus non derogant & Generalibus specialia derogant
i) Rule of Plain and Ordinary Meaning
When the language of a statute is plain and words are clear, precise and unambiguous giving out
only one meaning, then they must be understood in their plain and ordinary sense and effect
should be given to plain meaning only. The language should not be twisted or strained to arrive
at a supposed meaning of words. However, for proper application of this rule, it is necessary to
determine whether the language is plain or it suffers from ambiguity and whether the words are
precise or they bear more than one meaning. The courts should first assign plain and ordinary
meaning to the words and if some absurdity arises in the conclusion drawn, then only the courts
may look for some other meaning of the words.
In State of Goa v Colfax Laboratories Limited222, the question before the Supreme Court was
whether “old spice’ and “Blue Stratos” aftershave lotions were ‘medicinal preparations’ within
the meaning of the term occurring in Medicinal and Toilet Preparations (Excise Duties) Act,
1955. It was held that in order to come within the ambit of ‘medicinal preparation’, the article
must be used for the purpose of either curing or mitigating the disease after its symptoms have
appeared or in prevention of any disease. Disease means an impairment of normal state of the
living animal that interrupts or modifies the performance of vital functions in response to
environmental factors (as malnutrition, industrial hazards or climate) or to specific infective
agents (as worms, bacteria or viruses) or to inherent defects of the organism (as genetic
anomalies) or to combination of these factors. The process of shaving does not cause any kind of
impairment of normal state of person. It does not in any manner interrupt or modifies the
222
(2004) 9 SCC 83.
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performance of any vital functions of human body. Therefore, on plain interpretation of statutory
provisions, an aftershave lotion cannot come within the ambit of ‘medicinal preparation’ as
defined in S 2 (g) of the Act.
In M V Joshi v M U Shimpi223, the word ‘Butter’ used in Prevention of Food Adulteration Rules,
1955 was construed. The language of these Rules provided that ‘Butter’ means a product
prepared exclusively from milk or cream of cow or buffalo or both. Considering the plain and
ordinary meaning of the word ‘butter’, Supreme Court held that the meaning of the term cannot
be restricted and it includes the butter prepared from curd.
In P V Narasimha Rao v State224, Art 105 (2) of Constitution of India was subject matter of
interpretation. This Article provides that no member of Parliament shall be liable to any
proceedings in respect of anything said or any vote given by him in Parliament. Assigning plain
meaning to the language of this Article, it was held that if a member of Parliament received bribe
for the purpose of voting in favor of or against someone in the Parliament but does not vote then
his act is beyond the scope of Art 105 (2) since he has not cast his vote in Parliament after
accepting bribe. Such Member of Parliament may be prosecuted for offence of bribery under
Prevention of Corruption Act, 1988. However, if a Member of Parliament received bribe for
voting and votes in the Parliament, such a Member cannot be prosecuted for bribery as he enjoys
immunity from prosecution in respect of vote cast by him in Parliament.
In CIT (Agr.), WB v Keshab Chandra Mandal225, the Bengal Agricultural Income Tax Act (II of
1946) required that when a return of income is filed by an individual, such return shall be
verified and declaration shall be signed by the individual himself. In this case, the person was
illiterate and hence return was signed by the pen of his son. Considering the plain meaning of the
language of the provision, it was held that a return of income signed by an illiterate person by the
pen of his son was not a valid return of income for the purposes of the Act. It was observed that
hardship or inconvenience cannot alter the meaning of the language employed by Legislature, if
such meaning is clear on the face of the statute.
ii) Language should be read as it is / Rule of literal construction
Whatever language exists in a provision, it should be read as it is and conclusions may be drawn,
without making any kind of changes therein. The spirit behind this rule is two-fold.
Firstly, it is presumed that law-making authority, i.e., Legislature has used clear and precise
words and unambiguous language to express their intention and such, any interference with the
language is unwarranted.
223
AIR 1961 SC 1494.
224
AIR 1998 SC 2120.
225
AIR 1950 SC 265.
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Secondly, any addition, substitution or rejection of words in the language would amount to
legislation which is exclusive domain of Legislature, in which courts cannot be allowed to
encroach upon.
The rule can be studied under following heads:-
a. Avoiding addition or substitution of any word

The addition or substitution of words might change the complexion and effect of the
language and thus mould the intention of Legislature. Hence it is not permitted.
Moreover, it will be direct interference in the Jurisdiction of the Legislature which is
against the doctrine of separation of powers of Legislature, Judiciary and Executive.
In C V Raman v Management of Bank of India226, the Supreme Court has construed the
expression, ‘establishment under Central Government’ and refused to substitute the word
‘of’ in place of the word ‘under’ used in the expression and held that establishments not
owned by Central Government but over which Central Government has deep control,
would also fall within this expression.
In K M Viswanatha Pillai v K M Sanmughan Pillai227, the question before the Court

was relating to construction of S 42 (1) of Motor Vehicles Act, 1939. This section
provided that no owner of a transport vehicle shall use or permit the use of vehicle in any
public place save in accordance with the conditions of a permit granted or countersigned.
The Supreme Court refused to add the words, ‘to him’ after the words ‘permit granted’
and observed that the section does not make it necessary that the owner of the vehicle
himself should obtain the permit and hence there was no justification in reading the
words ‘to him’ after the words ‘permit granted’.
Departure from Rule (When Addition of Words is permissible)

Under certain circumstances, a departure from this rule can be validly made. Where the
non-supply of accidentally omitted words renders all other words present in the language
totally meaningless, then it is permissible to supply such omitted words. Addition of
words in the phraseology of a provision can be made under such compelling
circumstances wherein non-insertion of missing words would lead to deprive the existing
words of all the meanings. Where non-addition of missing word would render the entire
provision so senseless that it cannot be acted upon and as such the provision is reduced to
nullity, then it is permissible to insert that missing word.
226
AIR 1988 SC 1369.
227
AIR 1969 SC 493.
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In Champa Kumari Singhi v Member, Board of Revenue, WB 228, it was observed that in
S 46 (7) (iv) of the Indian Income Tax Act, 1922, the words ‘ be reckoned’ were
inadvertently omitted from the language of the provision, which was supplied by
construction otherwise the provision would have become meaningless.
In Divisional Personnel Officer, Southern Rly., v TR Challappan229, rule 14 (1) of the

Railway Servants (Discipline and Appeal) Rules, 1968 was construed by the Supreme
Court and the words ‘where any penalty is imposed’ were substituted by the words
‘where any penalty is imposable’.
b. Avoiding rejection of words

According to this rule, each and every word used in the language of a provision must be
given effect to and no word should be rejected in course of interpreting the provision. It is
presumed that the Legislature has used every word in the language with a definite
purpose and no word has been unnecessarily inserted therein. Therefore, while construing
a provision, no word should be left out from assigning meaning. It cannot be so pleaded
that the legislative intent can be arrived at without considering the meaning and effect of
a particular word or words used in the language. This rule is based on the strong
presumption that Legislature is not deemed to waste its words or say anything in vain and
therefore a construction which attributes redundancy to the words used in the language of
a provision will not be accepted.
In State of Bombay v Ali Gulshan230, the question before the Supreme Court was the
interpretation of S 6 (4) of Bombay Land Acquisition Act, 1948 which provides that State
Government may requisition the premises for the purpose of State or any other public
purpose. It was argued that the words ‘any other public purpose’ are restricted t such
public purpose which is also a purpose of the State. The Supreme Court was not
impressed with this argument since the words referring to the State purpose already
existed in the language and there was no need for Legislature to repeat the same.
Therefore the words ‘any other public purpose’ must mean other purposes which may not
be State purpose. If the meaning of the words ‘any other public purpose’ is restricted to
mean State purpose only, then these words will be repetitive only and thus would become
mere surplus usage.
Departure from the Rule (Treating the Words as Superfluous and their Rejection is
permissible)
228
AIR 1970 SC 1108.
229
AIR 1975 SC 2216.
230
AIR 1955 SC 810.
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The plain dictionary meaning of the word ‘superfluous’ is ‘extra’ or ‘excessive’.

Sometimes the Legislature uses such words in the language of the provision which in fact
are extra or superfluous and are not required. Even if such words are erased, the provision
remains operative without affecting its meaning. There could be 2 reasons for insertion of
such superfluous words. Firstly, as a matter of abundant precaution, so that the provision
may not be misunderstood or misinterpreted by the courts; secondly, the unskilled
drafting due to which certain words are introduced leading to apparent ineffectiveness of
the language though the intention of Legislature was clear.
The basic principle of UT RES MAGIS VALEAT QUAM PEREAT requires that every
provision should remain operative and workable and hence the courts strongly lean
against reducing the statute to futility. Therefore, in cases where removal of superfluous
words makes the provision effective and operative, it is permissible to reject the surplus
words.
c. CASUS OMISSUS
It means the case of omission. The rule of CASUS OMISSUS provides that omissions in
a statute cannot, as a general rule, be supplied by construction. The omissions of
Legislature cannot be rectified by the courts. A matter which should have been provided
but actually has not been provided in a statute cannot be supplied by courts. no canon of
construction permits the courts to supply a lacuna in a statute left by the Legislature by
inadvertence, because such an attempt amounts to making of law, which is beyond the
powers of judiciary. The function of the courts is to interpret the law enacted by the
Legislature and to administer justice according to legislative intent.
In Parkinson v Plumpton231, the Catering Wages Act, 1943 prescribed minimum wages
payable to workers in catering establishment. The Schedules to the Act provided for
minimum wages when the employer supplied the worker with full board and lodging and
when the employer supplied the worker with neither full board nor lodging. In this case,
the plaintiff was a worker in catering establishment. She was provided with full board but
not lodging. She claimed that she was paid less than the minim wage payable under the
Act. Lord Goddard observed, “I think there is a CASUS OMISSUS and that the
draftsman has forgotten to provide for the case where board is provided but not lodging
within the meaning of the Schedule. I suppose it was thought that full board would only
be supplied when lodgings were provided, and, as I have said, lodging seems to put out of
account here. These people were there full time, and so, therefore, you have got this
unfortunate hiatus. One always tries to construe words so as to give them a sensible
construction and prevent their failure, but I do not know any canon of construction which
enables me to construe where the employer supplies the worker with neither board nor
231
(1954) 1 All ER 201.
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lodging to include a case where the employer supplies full board but no lodging. I can’t
rewrite the legislation. I must enter judgment for the defendant.”
In P K Unni v Nirmala Industries232, Rule 89 of Order XXI of CPC was construed. Rule
89 enables any person, claiming an interest in a property sold in execution of a decree, to
apply to have the execution sale set aside on his depositing, within thirty days from the
date of sale, five percent of the purchase money for payment to the purchaser and the
amount payable to the decree holder for recovery of which the sale was held. Art. 127 of
the Limitation Act 1963 provided that period of limitation for applying under R 89 was
thirty days. But by Act 104 of 1976, Art. 127 was amended and now the period was made
sixty days because it was thought that the period of 30 days was too short for arranging
money for making the deposit often causing hardship. However, the Parliament omitted
to make corresponding amendment to R 89 of O. XXI of CPC. Before the Supreme Court
it was contented that not only the period of limitation for making the application for
setting aside the sale, but also the period for making the deposit u/ R 89 must be taken to
have been extended to sixty days. But this was not accepted and it was held that though
an application for setting aside the sale can be made within sixty days but the deposit to
support that application u/ R 89 must be made within thirty days.
Departure from the Rule (when omitted words can be supplied)
CASUS OMISSUS is a sound rule of interpretation which has been framed with the
object of discouraging the courts from declaring the phraseology of a provision as
defective or suffering from omissions and seeking to correct or modify it by supplying
certain words or expressions. At the same time, the courts are bound to make sure that
every provision of law remains effective and workable. When the lacuna in the language
is of such nature that unless the omitted word is supplied, the statute cannot be operated
or the words existing in the language are rendered meaningless or it leads to such
absurdity that true intention of Legislature cannot be given effect to it is permissible to
supply the word.
In People’s Union for Civil Liberties v Union of India233, proviso attached to S 49 (7) of
POTA was construed which reads ‘Provided that after the expiry of a period of one year
from the date of detention of the accused for an offence under this Act, the provisions of
sub-section (6) of this section shall apply’. There appears to be an accidental omission or
mistake of not including the word ‘not’ after the word ‘shall’ and before the word
‘apply’. Unless such word is included, the provision shall lead to absurdity or become
meaningless.
232
AIR 1990 SC 933.
233
(2004) 9 SCC 580.
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In Jacob Mathew v State of Punjab234, S 304-A of the IPC, 1860 was construed by the
Supreme Court and CASUS OMISSUS was supplied. It was held that the word ‘gross’
has not been used in S 304-A, IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression
‘rash or negligent act’ as occurring in S 304-A, IPC has to be read qualified by the word
‘grossly’.
iii) Regard to Subject and Object
General
The words of a statute, when there is doubt about their meaning, are to be understood in the
sense in which the best harmonize with the subject of the enactment and the object which the
Legislature has in view. Their meaning is found not so much in a strict grammatical or
etymological propriety of language, nor even in its popular use, as in the subject or in the
occasion on which they are used, and the object to be attained.
The court should adopt an object oriented approach keeping in mind the principle that legislative
futility is to be ruled out so long as interpretative possibility permits. However, the object
oriented approach, cannot be carried to the extent of doing violence to the plain language used by
rewriting the section or substituting words in place of the actual words used by the Legislature.
In Workmen of Dimakuchi Tea Estate v Management of Dimakuchi Tea Estate235, S 2 (k) of

the Industrial Disputes Act, 1947 was construed. According to S 2 (k) ‘Industrial Dispute’ means
any dispute or difference between employers and employees or between employers and workmen
or between workmen and workmen which is connected with the employment or non-employment
or the terms of employment or with the conditions of labor, of any person. The expression ‘any
person’ was construed, having regard in the scheme and object of the Act, to be subject to two
crucial limitations.
• The dispute must be a real dispute between the parties to the dispute so as to be capable
of settlement or adjudication by one party to the dispute giving necessary relief to the
other, and
• The person regarding whom the dispute is raised must be one in whose employment, non-
employment, terms of employment, or conditions of labor the parties to the dispute have
a direct or substantial interest.
234
(2005) 6 SCC 1.
235
AIR 1958 SC 353, p. 364.
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In Santa Singh v State of Punjab236, in interpreting S 235 (2) of CrPC, 1973, which provides
that ‘if the accused is convicted, the Judge shall hear the accused on the question of sentence and
then pass sentence on him according to law’, the Supreme Court held that the section was
mandatory and that it was not confined to hearing oral submissions, but was also intended to
given an opportunity to the prosecution and the accused to place before the court facts and
material relating to various factors bearing on the question of sentence, and if they are contested
by either side, then to produce evidence for the purpose of establishing the same. This conclusion
was reached having regard to the object of Parliament in enacting S 235 (2) to bring the law in
conformity with the modern trends in penology and sentencing procedure.
In Siddharth Viyas v Ravi Nath Misra & Ors237, the Supreme Court has observed that the object
of rent law is to balance the competing claims of the landlord, on the one hand, to recover
possession of the building let out to the tenant, and of the tenant, on the other hand, to be
protected against arbitrary increase of rent or arbitrary eviction when there is acute shortage of
accommodation, and that thought it is for the Legislature to resolve such competing claims in
terms of statutory provisions, the object of the Act has to be kept in view by the Court. It was
accordingly held that mere use of the present tense in S 12 (3) of the UP Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972, is not intended to limit the applicability of
the provision to acquisition of accommodation by the tenant after the Act becomes applicable,
but also covers a situation where the tenant has acquired alternative accommodation before the
Act became applicable.
The same expression used in two different enactments in similar context may have different
meanings having regard to the object of each enactment. This is illustrated in V C Shukla v
State238, by the construction of the expression ‘interlocutory order’ in S 397 (2) of the CrPC,
1973, and S 11 of the Special Courts Act, 1979. In the former it is understood in a strict sense but
in the latter, in a wide sense having regard to the object of speedy trial.
Rule in Heydon’s case; purposive construction: mischief rule
When the material words are capable of bearing two or more constructions the most firmly
established rule for construction of such words “of all statutes in general (be they penal or
beneficial, restrictive or enlarging of the common law)” is the rule laid down in Heydon’s case
which has not attained the status of a ‘classic’. This rule is also known as ‘rule of purposive
construction’ or ‘mischief rule’.
But the rule cannot be used to ‘the length of applying unnatural meanings to familiar words or of
so stretching the language that its former shape is transformed into something which is not only
236
AIR 1976 SC 2386.
237
(2015) 2 SCC 701.
238
AIR 1980 SC 962.
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significantly different but has a name of its own’ especially when the language has no evident
ambiguity or uncertainty about it.
iv) Regard to Consequences
If the language used is capable of bearing more than one construction, in selecting the true
meaning regard must be had to the consequences resulting from adopting the alternative
constructions. A construction that result in hardship, serious inconvenience, injustice, absurdity
or anomaly or which leads to inconsistency or uncertainty and friction in the system which the
statute purports to regulate has to be rejected and preference should be given to that construction
which avoids such results. This rule has no application when the words are susceptible to only
one meaning and no alternative construction is reasonably open.
Hardship, inconvenience, injustice, absurdity and anomaly to be avoided
In Sardar Amrjit Singh Kalra v Pramod Gupta239, the context of Order XXII of CPC, 1908
wherein ‘the abatement of entire appeal, when the legal representatives of one of the appellants
who died during pendency of appeal are not brought on record in time’ was in question and a
Constitution Bench of the Supreme Court observed, “Laws of procedure are meant to regulate
effectively, assist and aid the object of doing substantial and real justice and not to foreclose
even an adjudication on the merits of substantial rights of citizens under personal property and
other laws. Procedure has always been viewed as the handmaid of justice and not meant to
hamper the cause of justice. Technical objects which tend to be stumbling blocks to defeat and
delay substantial and effective justice should be strictly viewed for being discouraged except
when mandate of the law inevitably necessitates it.
In S V Kondeakar v V M Deshpande240, in construing S 446 (1) of the Companies Act, 1956,

which provides that when a winding up order has been made or the official liquidator has been
appointed no suit or legal proceedings shall be commenced or continued against the company
except with the leave of the court, the Supreme Court held that assessment proceedings under the
Income-tax Act do not fall within the section. This conclusion was reached on the ground that
only such proceedings fall u/S 446 (1) which could appropriately be dealt with by the winding up
court u/S 446 (2) and ‘it would lead to anomalous consequences if the winding up court were to
be held empowered to transfer the assessment proceeding to itself and assess the company to
income-tax.
Inconsistency and repugnancy to be avoided; harmonious construction
A statute must be read as a whole and one provision of the Act should be construed with
reference to other provisions in the same Act so as to make a consistent enactment of the whole
statute. This prevents any inconsistency or repugnancy either within a section or between a
239
(2003) 3 SCC 272.
240
AIR 1972 SC 878.
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section and other parts of a statute. It is the duty of the courts to avoid ‘a head on clash’ between
two sections of the same Act and, ‘whenever it is possible to do so, to construe provisions which
appear to conflict so that they harmonize’.
In Sahara India Real Estate Corporation Ltd. & Ors. v SEBI & Anr.241, S 32 of the Securities
and Exchange Board of India Act, 1992, was construed. This section provides that the provisions
of the Act shall be in addition to and not in derogation of the provisions of any other law. The
Supreme Court held that the SEBI Act is a special Act dealing with a specific subject, which has
to b read in harmony with the provisions of the Companies Act, 1956, and that both the Acts will
have to work in tandem in the interest of the investors, especially when public money is raised by
issue of securities from the people at large.
In Venkataramana Devaru v State of Mysore242, the Supreme Court applied the rule in resolving
a conflict between Arts. 25 (2) (b) and 26 (b) of the Constitution and it was held that the right of
every religious denomination or any section thereof to manage its own affairs in matter of
religion (art. 26 (b)) is subject to a law made by a State providing for social welfare and reform
or throwing open of Hindu religious institutions of a public character to all classes and sections
of Hindus (Art. 25 (2) (b)).
In re, C P & Berar Motor Spirit & Lubricants Taxation Act243, the principle of harmonious
construction has very often been applied in construction of apparently conflicting legislative
entries in Schedule VII of the GOI Act, 1935 and the Constitution.
When reconciliation not possible
If two sections of an Act cannot be reconciled, as there may be absolute contradictions, it is often
said that the last must prevail244. But this should be accepted only in the last resort.
In Union of India v Dileep Kumar Singh245, the question was on S 47 and S 73 of Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The
Supreme Court held that S 47 of the Act was the ‘leading provision’, being a positive provision
and that S 73 was the ‘subordinate provision’, being a machinery provision, and accordingly S
73 must give way to S 47.
Avoiding uncertainty and friction in the system which the statute purports to regulate
Where the words of a statute are clear, they must, of course, be followed but where alternative
constructions are equally open that alternative is to be chosen which will be consistent with the
smooth working of the system which the statute purports to be regulating’ and that alternative is
241
(2013) 1 SCC 1, pp. 57,60.
242
AIR 1958 SC 255.
243
AIR 1939 FC 1.
244
KM Nanavati v State of Bombay, AIR 1961 SC 112, p. 137.
245
(2015) 4 SCC 421, pp. 428-429.
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to be rejected which will introduce uncertainty, friction or confusion into the working of the
system.
In State of Punjab v Ajaib Singh246, the Supreme Court applied similar principle in construing
the fundamental right u/Art. 22 (1) and (2) of the Constitution; and it was held that the said
Article applies to give protection against such arrests as are effected otherwise than under a
warrant issued by a court on the allegation or accusation that the arrested person has committed
some criminal or quasi-criminal act and that the physical restraint put upon an abducted person
in process of recovering and taking into custody and delivery of the person to the custody of an
officer-in-charge of the nearest camp u/S 4 of Abducted Persons (Recovery and Restoration) Act,
1949, is not arrest and detention within the meaning of Art. 22 (1) & (2). It was observed that ‘if
two constructions are possible then the court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew the other which will lead to absurdity or
give rise to practical inconvenience or make well-established provision of existing law
nugatory.’
v) Conjunctive and Disjunctive words
As per the dictionary meaning, the word that joins other words, phrases or clauses is called
conjunction. Egg. And, but, as well as are conjunctive words.
A disjunctive word is opposite of conjunctive word. The word’ or’ is an example of disjunctive
word.
The word ‘or’ is normally disjunctive and ‘and’ is normally conjunctive but at times they are
read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the
context.
In State of Bombay v RMC Chamarbaugwala247, S 2 (1) (d) (i) of Bombay Lotteries and Prize
Competition Control and Tax Act, 1948, it was construed by the Supreme Court, the word ‘or’
was read as ‘and’ to give effect to clear intention of the Legislature as expressed in the Act read
as a whole.
In Ishwar Singh Bindra v State of AP248, S 3 (b) (i) of the Drugs Act, 1940 defined drugs before
its amendments as: ‘All medicines for internal or external use of human beings or animals and all
substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of
disease in human beings or animals other than medicines and substances exclusively used or
prepared for use in accordance with the Ayurvedic or Unani Systems of medicine’. In this
definition, the italicized word ‘and’ was read disjunctively as the context showed that it was the
clear intention of the legislature.
246
AIR 1953 SC 10, p.14.
247
AIR 1957 SC 699.
248
AIR 1968 SC 1540.
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In Union of India & Ors v Rabinder Singh249, S 52 (f) of the Army Act, 1950, provides that any
person subject to the Act, who ‘does any other thing with intent to defraud, or to cause wrongful
gain to one person or wrongful loss to another person’, commits an offence in respect of
property. The Supreme Court held that the two parts of S 52 (f) are disjunctive, which can be
seen from the use of a comma and the word ‘or’ between the two parts of the clauses, and that if
the Legislature had intended both the parts to be read together, it would have used the word
‘and’. Hence, it was held that it is possible to charge someone u/S 52 (f) only for acting with
‘intent to defraud’, and it is not necessary to refer to the second part of the clause viz. causing
wrongful gain or wrongful loss, in the charge.
In J Jayalalitha v Union of India250, S 3 of the Prevention of Corruption Act, 1988 empowers

the Government to appoint as many special judges as may be necessary for such area or areas or
for such case or group of cases, as may be specified in the notification. Construing the italicized
‘or’ it was held that it would mean that the Government has the power to do either or both the
things, i.e., the Government may, even for an area for which a special judge has been appointed,
appoint a special for a case or group of cases. The case illustrates that the alternatives joined by
‘or’ need not always be mutually exclusive.
vi) Same word to bear Same meaning unless otherwise intended
When the Legislature uses same word in different parts of the same section or statute, there is a
presumption that the word is used in the same sense throughout. But this presumption is a weak
presumption and is readily displaced by the context. Even when the same word is used at
different places in the same clause of the same section it may not bear the same meaning at each
place having regard to the context of its use.
The rule imposes restriction on interpretation of a word by making the meaning dependent on the
context in which the particular word has been used. Different meanings cannot be assigned to the
same word in a statute to suit the convenience. It is only when the context requires, that there is a
scope of same word bearing a different meaning.
In Bhogilal Chunnilal v State of Bombay251, in construing the word ‘statement’ in S 157 of the
Indian Evidence Act, 1872, the Supreme Court referred to the use of the same in Ss. 17 to 21, 32,
39 and 145, and came to the conclusion that the word in all these sections meant ‘something that
is stated’ and communication was not necessary in order that it may be a statement; and the same
meaning was attributed to the word as occurring in S 157 of the Act. It was therefore, held that
notes prepared by a prosecution witness recording the conversation that took place between him
and other witnesses, was a statement which could be used for corroboration u/S 157, and it was
249
(2012) 12 SCC 787, p. 795.
250
AIR 1999 SC 1912.
251
AIR 1959 SC 356.
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observed that ‘Words are generally used in the same sense throughout in a statute, unless there is
something repugnant in the context.’
In Hyder Consulting (UK) Limited v Governor, State of Orissa252, the word ‘sum’ in S 31 (7) of
the Arbitration and Conciliation Act, 1996 was interpreted. S 31 (7) (a) provides that where an
award is made for the payment of money, the Arbitral Tribunal may include, in the ‘sum’ for
which the award is made, interest from the date of cause of action to the date of the award. It was
held that the word ‘sum’ used in this provision has not been qualified by using the word
‘principal’ before it, and hence may include ‘principal’ and ‘interest’ or one of the two, and once
the meaning of the word ‘sum’ is clear, the same meaning must be ascribed to the word in S 31
(7) (b) of the Act, which provides that a ‘sum’ directed to be paid by an award shall, unless the
award otherwise directs, carry interest at the rate of 18% per annum from the date of award to the
date of payment. Therefore, it was held that the ‘sum’ directed to be paid by the award u/S 31 (7)
(b) is inclusive of interest pendent lite, and that the Tribunal may direct interest to be paid on
such ‘sum’ for the post-award period.
vii) Use of Different Words / Different words are not used in same sense
When different words on the same subject matter are used by the Legislature in the same statute,
the presumption is that they are used in different senses.
When two words of different import are used in a statute in two consecutive provisions, it would
be difficult to maintain that they are used in the same sense.
In Brihanmumbai Mahanagarpalika & Anr. V Willingdon Sports Club & Ors. 253 , while
construing the word ‘gain’ u/S 3 (ff) of the Bombay Municipal Corporation Act, 1888, which
uses the words ‘profit or gain’, the Supreme Court relied on the dictionary meanings of the
words to hold that the word ‘gain’ is not synonymous with the word ‘profit’ as it is not restricted
to pecuniary or commercial profits, and that any advantage or benefit acquired or value addition
made by some activities would amount to gain.
In Econ Antri Ltd. v Rom Industries Ltd. & Anr.254, the Supreme Court has held that the words
‘of’, ‘from’ and ‘after’, may, in a given case, mean really the same thing, and accordingly, the
word ‘of’ occurring in Ss 138 (c) and 142 (b) of the Negotiable Instruments Act, 1881, is not to
be interpreted differently as against the word ‘from’ occurring in S 138 (a) of the Act. Therefore,
for the purposes of S 142 (b) of the Act, which prescribes that the complaint is to be filed within
30 days ‘of’ the date on which the cause of action arises, the starting day on which the cause of
action arises is also to be included while computing the period of 30 days.
viii) Rule of Last Antecedent
252
(2015) 2 SCC 189.
253
(2013) 16 SCC 260.
254
(2014) 11 SCC 769.
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The word ‘antecedent’ means ‘previous’ or ‘preceding event’; the rule of last antecedent says
that when a provision contains certain qualifying words, then those words are intended to qualify
those antecedents only which immediately precede them. To explain it further, the qualifying
words occurring in a statutory provision qualify immediately preceding expressions or last
antecedent only. It means that the application of such qualifying words is restricted to last
antecedent and cannot be extended to qualify other expressions present in the language.
Phrases and sentences in a statute are interpreted according to grammatical meaning drawn in
consonance with the context. As such this rule is subordinate to context and may be better stated
by saying that a qualifying phrase ought to be referred to the next antecedent which will make
sense with the context and to which the context appears properly to relate it.
In Ashwini Kumar Ghose v Arbinda Bose255, S 2 of the Supreme Court Advocates (Practice in
High Courts) Acts, 1951 was construed. It was held in this case by the Court that ‘the adjectival
clause ‘regulating the conditions etc.’, qualified the word ‘law’ and not the words ‘Bar Council
Act’.
In Irra Waddy Flotilla Company v Bhagwan Das256, S 1 of the Indian Contract Act, 1872 was
construed which reads, ‘Nothing herein contained shall effect the provisions of any statute, Act
or Regulation, not hereby expressly repealed, nor any usage or custom of trade, nor any incident
of any contract not inconsistent with the provisions of this Act’. It was observed that, ‘the words
‘not inconsistent with the provisions of this Act’ are not to be connected with the clause ‘nor any
usage or custom of trade’. Both, the reason of the thing and grammatical construction of the
sentence, if such a sentence is to be tried by any rules of grammar, seem to require that the
application of those words should be confined to the subject which immediately precedes them’.
In State of Bombay v RMD Chamarbaugwala257, S 2 (1) (d) of the Bombay Lotteries and Prize
Competitions Control and Tax Act, 1948 was considered which read: ‘prize competition
includes: (1) Crossword prize competition, (2) Missing word prize competition, (3) Picture prize
competition, (4) Number prize competition and (5) any other prize competition, for which
solution is or is not prepared before hand by the promoters or for which the solution is
determined by lot or chance’. It was held that the qualifying clause in the 5 th item beginning with
‘for which the solution’ was to apply to all the five items and observed that there is
grammatically no difficulty in reading the qualifying clause as lending color to such of those
items.
In Mongibai Hariram v State of Maharashtra258, while construing the definition of ‘premises’

in the Bombay Land Requisition Act, 1948, which reads ‘any building or part of a building let or
255
AIR 1952 SC 369.
256
(1891) ILR 18 Cal 620, p. 627 (PC).
257
AIR 1957 SC 699, P. 708.
258
AIR 1966 SC 882.
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intended to be let separately’, it was held that the words ‘let or intended to be let separately’ did
not qualify the word ‘building’ but only the words ‘part of a building’.
In Hitel P Dalal v Bratindranath Banerjee259, the jurisdiction of the Special Court in the Special
Court (Trial of Offences relating to Transactions in Securities) Act, 1992 is limited to offences
referred to in S d (2) of the Act which in so far as relevant provides: ‘Any offence relating to
transactions in securities after 1st day of April 1991 and on and before 6th June 1992’. In
interpreting S 3 (2) it was held that the period specified qualified the word ‘transactions’ and not
the word ‘offence’ and therefore the Special Court had jurisdiction if the transaction in securities
took place within the specified period irrespective of the date of the offence.
In Regional PF Commissioner, Bombay v Shree Krishna Metal Mfg. Co., Bhandara260, S 1 (3)
(a) of the Employees’ PF Act, 1952 was construed. The section read, ‘subject to the provision
contained in S 16, it (the Act) applies to every establishment which is a factory engaged in any
industry specified in Schedule 1 and in which fifty or more persons are employed’. The
contention before the Court was that the requirement that the workman employed should be fifty
and more governed the word ‘industry’ and not the word ‘factory’. In support of this it was urged
that the pronoun ‘which’ must under the ordinary rules of grammar qualify the noun immediately
preceding it and that took it to the word ‘industry’ rather than to the word ‘factory’. However,
this contention was rejected on the basis of the context and it was held that the requirement as to
the prescribed number qualified the word ‘factory’ and not the word ‘industry’.
ix) Legal Fiction
Fiction means ‘something imagined’. The expression ‘legal fiction’ denotes a ‘fiction in law’. It
is something which is not an actual reality but which the law recognizes and courts accept as
reality. Courts believe something to exist which in reality does not exist. It is presumption as to
existence of state of affairs which actually is not existent. For instance, a child in the womb of
mother is deemed to be in existence for the purpose of the rights of that child.
A legal fiction is created in a statute by way of inserting deeming provisions. The language of
such provisions usually employs the word ‘deem’ or ‘as if’.
Example for legal fiction created in statute:-
a. S 2 (d) of the CrPC, 1973, provides – ‘complaint’ means any allegation made
orally or in writing to a Magistrate with a view to his taking action under this
Code, that some person, whether known or unknown, has committed an offence,
but does not include police report.
Explanation – a report made by a police officer in a case which discloses, after
investigation, the commission of a non-cognizable offence shall be deemed to be
259
AIR 2001 SC 3897.
260
AIR 1962 SC 1536.
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a complaint, and a police officer by whom such report is made, shall be deemed to
be complainant.
The explanation attached to this sub-section uses the word ‘deem’. When
carefully read, this explanation goes to show that although a police report is not a
complaint, but in case of commission of a non-cognizable offence, a police report
shall be considered to be a complaint. Thus what is incorrect is believed to be
correct.
In M K Balakrishna Menon v Assistant Controller of Estate Duty, Ernakulam261, S 7 (3) of
Hindu Succession Act, 1956 was interpreted by Supreme Court. This section created a legal
fiction by using the words ‘as if the sthanam property had been divided per capita immediately
before the death of sthanamdar among himself and all members of his family’. It was held that
the purpose of fiction here was to determine the shares of the family members and heirs of
sthanamdar and not for limiting the devolution of sthanam property.
x) NON OBSTANTE Clause
The expression ‘NON- OBSTANTE’ means ‘notwithstanding’; a clause beginning with

‘notwithstanding anything contained in this Act or in some particular provision in the Act or in
some particular Act or in any law for the time being in force’, is sometimes appended to a
section in the beginning, with a view to give the enacting part of the section in case of conflict an
overriding effect over the provision or Act mentioned in the ‘NON-OBSTANTE’ clause.
The phrase ‘ notwithstanding anything in’ must be distinguished from the phrase ‘subject to’
which conveys the idea of a provision yielding place to another provision or other provisions to
which it is made subject. A NON-OBSTANTE clause must also be distinguished from the phrase
‘without prejudice’. Whenever a provision is enacted ‘without prejudice’ to another provision, it
does not have the effect of affecting the operation of the other provision and any action
undertaken it must not be inconsistent with such other provision.
In Ashiwini Kumar Ghosh v Arabinda Bose262, S 2 of the Supreme Court Advocates (Practice in
High Courts Act), 1951 contained a NON-OBSTANTE clause as – ‘Notwithstanding anything
contained in the Indian Bar Councils Act, 1926 or in any other law regulating the conditions
subject to which a person not entered in the roll of Advocates of a High Court may be permitted
to practice in that High Court’. The Calcutta High Court held that an advocate of the Supreme
Court was not entitled to act on the original side of that High Court. But this decision of the
Calcutta High Court was overruled and the Supreme Court observed that, “It should first be
ascertained what the enacting part of the section provides on a fair construction of the words
used according to their natural and ordinary meaning, and the NON-OBSTANTE clause is to be
261
AIR 1971 SC 2392.
262
AIR 1952 SC 369.
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understood as operating to set aside as no longer valid anything contained in relevant existing
laws which is inconsistent with the new enactment…. The enacting part of the statute must,
where it is clear, be taken to control the NON-OBSTANTE clause where both cannot be read
harmoniously.”
In R C Pondyal v Union of India263, it was held that a provision beginning with the words
‘notwithstanding anything in this Constitution’ added in the Constitution Amendment Act could
not be construed as taking away the provision outside the limitations on the amending power and
it has to be harmoniously construed consistently with the foundational principles and basic
features of the Constitution.
In Municipal Corporation, Indore v Ratnaprabha264, the Supreme Court considered S 138 (b)
of the Madhya Pradesh Municipal Corporation Act, 1956, which enacted that ‘the annual value
of any building shall notwithstanding anything contained in any other law for the time being in
force be deemed to be gross annual rent at which such building might reasonably at the time of
assessment be expected to let from year to year.’ Taking in view the NON-OBSTANTE clause
the Supreme Court held that the annual letting value determined u/S 138 (b) need not in every
case be limited to the standard rent which might be fixed for the building under the Rent Control
Act.
In RS Raghunath v State of Karnataka265, it was observed that, ‘A special enactment or rule

cannot be held to be overridden by a later general enactment or simply because the latter opens
up with a NON-OBSTANTE clause. There should be clear inconsistency between the two before
giving an overriding effect to the NON-OBSTANTE clause.’
xi) Mandatory and Directory Provisions
In legal terminology where something is required to be done and the consequences of failure to
do so are also provided then it is known as mandatory provision. There is no universal rule
regarding the directory or mandatory provisions except this that language alone most often is not
decisive, and regard must be had to the context, subject-matter and object of the statutory
provision in question in determining whether the same is directory or mandatory.
It is the duty of the courts to get the real intention of the legislature by carefully attending the
whole scope of the provision to be construed. They key to the opening of every law is the reason
263
AIR 1993 SC 1804.
264
AIR 1977 SC 308.
265
AIR 1992 SC 81.
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and spirit of the law, it is the ANIMUS IMPOTENTIA, the intention of the law maker expressed
in the law itself, taken as a whole266.
Directory and Mandatory Provisions distinguished
➢ In the case of mandatory enactment it is said that they must be stated or fulfilled exactly
but in the case of directory enactments only substantial compliance is sufficient.
There are 2 directory requirements regarding enactments:
• Which should be substantially complied with to make the Act valid,

• Even if not at all complied with they will have no effect on the Act.
The correct position appears to be that substantial compliance of an enactment is insisted, where
mandatory and directory requirements are lumped together, for in such a case, if mandatory
requirements are complied with, it will be proper to say that the enactment has been substantially
complied with notwithstanding the non-compliance of directory requirements.
➢ A provision is not mandatory unless non-compliance with it is made penal. A mandatory

provision must be obeyed and any act done in its breach will be invalid but if it is
directly, it will be valid.
It is a general rule that non-compliance of mandatory requirements results in nullification of the

Act. But there is an exception that if certain requirements or conditions are provided by a statute
in the interest of a particular person, the requirements or conditions, although mandatory, may be
waived by him if no public interest is involved and in such a case the act done will be valid even
if the requirement or condition has not been performed.
✓ Consequences provided by Statute
When on failure to comply with a prescribed requirement nullification as a consequence is

provided by the statute itself, there is no doubt that such statutory requirement must be
interpreted as mandatory.
In Secretary of State v Kuchwar Lime & Stone Co. Ltd.267, it was observed that the requirement
as to registration of certain documents prescribed by S 17 of the Registration act, 1908, or by any
provision of the Transfer of Property Act, 1882, is mandatory since 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.
266
Special Regerence No. 1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC 237.
267
AIR 1938 PC 20.
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In BOI Finance Ltd. v Custodian268, the violation of certain confidential unpublished directions,
issued by the RBI u/S 36 (1) (a) and (b) of the Banking Companies Act, which were known to
the Banks but not to others, prohibiting Banks from entering into certain transactions was held
not to affect the validity of the transactions but only to make the Banks liable for penalty u/S 46
of the Act.
✓ Use of Negative words
When the command is clothed in a negative form, it suggests that there is clear intention to
consider the enacted provision as mandatory. In M Pentiah v Muddalal Veera Mallappa269, it
was observed that ‘negative words are clearly prohibitory and are ordinarily used as a legislative
device to make a statute imperative.’
In Ashraf Khan & Anr. v State of Gujarat 270 , S 20-A (1) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987, provides that notwithstanding anything in the CrPC, ‘no’
information about the commission of an offence under the Act shall be recorded by the police
without the prior approval of the District Superintendent of Police. The Supreme Court held that
the Legislature, by using a negative word in S 20-A (1), had made its intention clear. Negative
words can rarely be held to be directory and, on the face of it, the requirement of prior approval
by the DSP, on principle, cannot be said to be directory in nature.
In Lachmi Narain v Union of India271, a provision requiring ‘not less than three months’ notice
was held to be mandatory.
But this principle is also subject to exceptions. For e.g., in Lila Gupta v Laxmi Narain 272 ,
directions relating to solemnization of marriages though using negative words have been used as
directory in cases where the enactments in question did not provide further consequence that the
marriage in breach of those directions shall be invalid.
In S 25-F (c) of the Industrial Disputes Act, 1947, the compliance of clause (a) and (b) was
understood as mandatory whereas compliance of clause (c) which was connected by the same
negative words, as in clauses (a) and (b), was held to be directory.
✓ Affirmative words when imply a negative
For reading the provision as mandatory, affirmative words stand at a weaker footing than the
negative words; but affirmative words may also be so limiting as to imply a negative.
268
AIR 1997 SC 1952.
269
AIR 1961 SC 1107, p. 1113.
270
(2012) 11 SCC 606.
271
AIR 1976 SC 714, p. 726.
272
AIR 1978 SC 1351.
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In Pix Bux v Moahamed Tahar273, the provisions of S 54, 59, 107 and 123 of the Transfer or
Property Act, 1882, prescribing modes of transfer by sale, mortgage, lease or gift may be
mentioned. The formalities prescribed by these provisions for effecting a transfer of the nature
mentioned in them are mandatory and the language used although affirmative clearly imports a
negative.
✓ Use of ‘shall’ or ‘shall and may’; ‘must’ and ‘should’
The use of the word ‘shall’ is ordinarily mandatory but it is sometimes not so interpreted if the
scope of the enactment, on consequences to flow from such construction would not so demand.
Normally the word ‘shall’ prima facie ought to be considered mandatory but it is the function of
the court to ascertain the real intention of the legislature by a careful examination of the whole
scope of the statute, the purpose it seeks to serve and the consequences that would flow from the
construction to be placed thereon. The distinction reflected in the use of the word ‘shall’ or
‘may’ depends on conferment of power. In certain context, ‘may’, does not always mean may.
May is a must for enabling compliance of provision but there are cases in which, for various
reasons, as soon as a person who is within the statute is entrusted with the power, it becomes
duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed
for non-performance of the duty.
In CN Paramasivam & Anr. v Sunrise Plaza & Ors.274, Rule 57 (2) of Schedule II to the Income
Tax Act, 1961, provides that the full amount of purchase money payable ‘shall’ be paid by the
purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of sale of
property. The Supreme Court relied on the word ‘shall’ as well as earlier decisions of the Court
on PARI MATERIA provisions in Order XXI of CPC, to hold that making of the deposit by the
intending purchaser is mandatory.
✓ Statutes imposing public duty
When a 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 a rigid adherence to
the statutory prescriptions may be a relevant factor in holding such prescriptions only directory.
In Remington Rand of India v Workmen275, it has been held while construing S 17 (1) of the
Industrial Disputes 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.
273
AIR 1934 PC 235.
274
(2013) 9 SCC 460.
275
AIR 1968 SC 224.
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In Ghisalal v Dhapubai276, consent of the wife before adoption by a male Hindu as required by
the proviso to S 7 of the Hindu Adoption and Maintenance Act, 1956 has been held to be
mandatory; mere presence of the wife at the time of adoption has not been held to be sufficient to
prove consent.
In LML Ltd. v State of UP277, it was held that when authority to be consulted is expected to take
a decision on the proposal sent to it forthwith and it whiles away the time, the conduct may invite
the doctrine of acceptance subsilentio.
✓ Formalities prescribed for making contracts or transfers
Provisions of the Constitution Acts and Municipal Acts providing the manner in which contracts
and transfers shall be executed have been held to be mandatory. Similarly, the mode of making
sale, mortgage, lease or gift prescribed by the Transfer of Property Act, and the formalities
prescribed for transfer of shares under the Company Law, have been held to be imperative. The
language in these cases is held mandatory either on the view that by holding it director to the
very object of the provisions will be defeated or on the view that the same implies a negative
prohibiting any mode of transfer other than permitted by the statute.
In Murudeshwara Ceramics Ltd. v State of Karnataka278, it was held that if the Act confers
power on the State Government to exempt any land from a restriction or prohibition on transfer
contained in the Act, exemption granted after the transfer will be ineffective if the Act
automatically invalidates the transfer made in violation of the restriction or prohibition but if a
declaration under the Act is a pre-requisite for such an invalidity the transfer will be effective if
the exemption is granted before such a declaration.
✓ Statutes conferring power; Express & Implied conditions; Judicial Review
Those statutes which confer power often contain certain express conditions for the exercise of
the conferred power and in the absence of or in addition to the express conditions. There are also
implied conditions for exercise of the power. If the express or implied conditions are mandatory,
exercise of statutory power in breach of these conditions will be illegal. Such an illegal exercise
of power can be challenged by the public law remedy of judicial review or by a private law
remedy of civil suit.
In State Inspector of Police, Vishakapatnam v Surya Sankaram Karri279, it was held that a
statutory functionary must act in a manner laid down in the statute. Thus issuance of an oral
order or direction is not contemplated under the administrative law and statutory functionaries
are enjoined with duty to pass written orders.
276
(2011) 2 SCC 298.
277
(2008) 3 SCC 128.
278
AIR 2001 SC 3017.
279
(2006) 7 SCC 172.
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In State of Karnataka v Vishwabharati House Building Co-op Society280, it has been said to be
well settled that a statutory tribunal which has been conferred the power to adjudicate a dispute
has implied power to implement and execute its order.
A statutory discretion or power, whether it be administrative or quasi-judicial, although

conferred in wide terms is subject to certain implied conditions or limitations. A violation of
these conditions or limitations even though there be no violation of any express condition can
give rise to judicial review.
✓ Manner of expression of exercise of power
The power to make an order must also be distinguished from the manner of expressing an order
which may have been prescribed with a view to give the prescribed manner of expression an
evidentiary value. In such a case the non-compliance with the prescribed manner of expression
does not invalidate the order if the same is proved otherwise to have been validly made.
✓ Statute conferring private rights and benefits
When certain requirements are prescribed by a statute as preliminary to the acquisition of a right
or benefit conferred by the statute, such prescriptions are mandatory for acquisition of the right
or benefit.
In Parekh Wadilal v CIT, Nagpur281, it was held that if it desired to have a partnership firm
registered under the Income-tax Act, the requirements of the Act and the rules framed under it
must be strictly complied with because, by securing registration under the Act, the partners of the
firm obtain the benefit of lower rates of assessment, and no tax is directly charged on the income
of the firm.
✓ Use of ‘may’; ‘it shall be lawful’; ‘shall have power’ – power coupled with duty
The words ‘may’ and ‘it shall be lawful’ are not words of compulsion. They are enabling words
and they only confer capacity, power or authority and imply discretion. They are both used in a
statute to indicate that something may be done which prior to it could not be done.
In Shyamal Ghosh v State of WB282, the Supreme Court has held that the use of the word ‘may’
in the explanation to S 162 of the CrPC makes it clear that it is not every omission or
discrepancy that amounts to a material contradiction, and that the word ‘may’ introduces an
element of discretion which has to be exercised by the court to decide whether it is a case of a
contradiction, or a material contradiction, which renders the entire evidence of the witness
untrustworthy and affects the case of the prosecution materially.
280
(2003) 2 SCC 412.
281
AIR 1967 SC 448.
282
(2012) 7 SCC 646.
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In ND Jayal v Union of India 283 , it was held that a power conferred by the Environment
(Protection) Act, 1986 having regard to its object cannot be treated as power simpliciter, but it is
a power coupled with a duty and so it is the duty of the State to make sure that the conditions or
directions under the Act are fulfilled.
✓ Use of ‘as he deems fit’; ‘thinks necessary’; ‘considers necessary’ – words conveying
discretion
Where a statute provides for the grounds on which a person is entitled to a certain relief and
confers power on a tribunal to pass orders ‘as it deems fit’, the exercise of the power to grant
relief is not dependent upon the discretion of the tribunal.
The words ‘as he deems fit’ do not bestow a power to make any order on consideration dehors
the statute which the authorities consider best according their notions of justice.
According to Robson284 view, ‘within certain limits, the individual who exercise discretion is
quite free but if he ventures outside those frontiers his power ends, if he takes into consideration
matters ‘fantastic and foreign to subject matter’, if he decides the matter, according ‘to his will
and private affections’, then he is regarded as having failed to exercise any discretion at all’.
✓ Use of ‘have regard to’
When in a statute, the words ‘have regard to’ occur, they should be construed in relation to the
context and the subject matter. These words ordinarily are understood as a guide and not a fetter.
When a court is enjoined to ‘have regard to’ certain provisions in the trial of a proceeding and no
regard is paid to them, the trial will not ‘be in accordance with law’ and such an error will be
liable to correction in appeal or revision’285.
xii) Rules of Construction of General Words
General
The normal rule is that the general words in a statute must receive a general construction unless
there is something in the Act itself such as the subject-matter with which the Act is dealing or the
context in which the said words are used to show the intention of the legislature that they must be
given a restrictive meaning286.
For example, in the case of India Carbon Ltd. v Superintendent of Taxes, Guwahati, the words
‘coal including coke in all its form’ were construed to include petroleum coke. It was held that a
283
AIR 2004 SC 867.
284
Robson: ‘Justice and Administrative Law, 3rd Edn. P. 407.
285
VK Verma v Radhey Shyam, AIR 1964 SC 1317.
286
Beckford v Wade (1805) 34 ER, p. 35 (PC).
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restricted meaning that these words were limited to coke derived from coal would have given no
weight to the generality of the words ‘in all its form’287.
In State of UP v Hariram288, the Supreme Court has held that the mere declaration of ‘vesting’
of vacant land declared in excess of ceiling u/S 10 (3) of the Urban Land (Ceiling and
Regulation) Act, 1976, would not give the State Government de facto possession of such land,
and hence is not saved u/S 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999,
which repeals the 1976 Act.
The word ‘person’ has at times been construed as meaning only males289, whereat at times it has
been given its full effect to include both males and females 290 , as also a company or a
corporation291, and in some cases even the Crown292, or the State293.
General words also receive a restricted meaning because of principle of legality as also when
used in association with other words by application of the rules of NOSCITUR A SOCIIS and
EJUSDEM GENERIS.
NOSCITUR A SOCIIS
The doctrine of NOSCITUR A SOCIIS means that a word should be known from its
accompanying or associating words. It has much relevance in understanding the import of words
in a statutory provision. In ascertaining the meaning of the word or a clause or sentence in the
statute in its interpretation, everything which is legally relevant should be admissible. The
philosophy behind it is that the meaning of the doubtful words may be ascertained by reference
to the meaning of words associated with it. This doctrine is broader than the doctrine of
EJUSDEM GENERIS.
This rule means that when two or more words which are susceptible of analogous meaning are
coupled together, they are understood to be used in their cognate sense. They take as it were
their color from each other, i.e., the more general is restricted to a sense analogous to a less
general294.
In Acqueous Victuals Pvt. Ltd. v State of UP295, the word ‘use’ in Entry 52 of List II which
occurred between ‘consumption’ and ‘sale’ was held to take color from the associate words and
287
AIR 1972 SC 154.
288
(2013) 4 SCC 280, pp.293-300.
289
Nairn v St. Andrews University, (1909) AC 147.
290
HM Edwards v AG of Canada, AIR 1930 PC 120.
291
Motipur Zamindari Co. Ltd. v State of Bihar, AIR 1953 SC 320.
292
Madras Electric Supply Corp. Ltd. v Boarland, (1955) 1 All ER 753.
293
Samatha v State of AP, AIR 1997 SC 3297.
294
Maxwell: Interpretation of Statutes, 11th Edn., p. 321.
295
AIR 1998 SC 2278.
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in order to attract octroi duty, to connote use of a commodity ‘for an indefinite period in such a
way that it came to rest finally and permanently within the municipal limits’.
In State of Karnataka v Union of India 296 , Art 194 (3) of the Constitution which refers to
Powers, Privileges and Immunities of a House of the Legislature of a State was construed. The
Supreme Court held that the word ‘Powers’ must take its color from words in immediate
connection with it and that it should be construed to refer not to legislative powers but to powers
of a House which are necessary for the conduct of its business.
In Devendra M Surti (Dr.) v State of Gujarat 297 , while dealing with the definition of
Commercial establishment in S 2 (4) of the Bombay Shops and Establishments Act, 1948 which
reads ‘commercial establishment means an establishment which carries on any business, trade or
profession’, the word ‘profession’ was construed with the associated words ‘business’ and
‘trade’ and it was held that a private dispensary of a doctor was not within the definition.
Rule of EJUSDEM GENERIS
According to the doctrine of EJUSDEM GENERIS, when particular words pertaining to a class,
category or genus are followed by general words, they are construed as limited to the things of
the same kind as those specified.
The Court has held that, generally, this rule applied under the following situations298:
✓ When the statute contains an enumeration of specific words;

✓ The subjects of enumeration constitute a class or category;
✓ That class or category is not exhausted by the enumeration;
✓ The general terms follow the enumeration; and
✓ There is no indication of a different legislative intent.
In Siddheshwari Cotton Mills (P) Ltd. v Union of India299, while construing the words ‘any
other process’ in S 2 (f) (v) of the Central Excises and Salt Act, 1944, this rule was applied. This
section defined ‘manufacture’ in relation to goods in Item no. 19-I of the Schedule to the Central
Excise Tariff Act, 1985 to include ‘bleaching mercerizing, dyeing, printing, water proofing,
rubberizing, shrink proofing, organdie processing or any other process’. It was held by the
Supreme Court that the processes enumerated contemplate processes which import change of a
lasting character to the fabric by either the addition of some chemical into the fabric or otherwise
then ‘any other process’ in the section must share one or other of these incidents which constitute
manufacture in the extended sense.
296
AIR 1978 SC 68.
297
AIR 1969 SC 63.
298
Amar Chandra v Collector of Excise, Tripura, AIR 1972 SC 1863, Grasim Industries Ltd. v Collector of
Customs, Bombay, AIR 2002 SC 1766.
299
AIR 1989 Sc 1019.
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In Commissioner of Income Tax v SMIFS Securities Ltd. 300 , the principle of EJUSDEM
GENERIS was applied. S 32 of the Income Tax Act, 1961, deals with depreciation of assets.
Explanation 3 to S 32 (1) defines ‘assets’ to mean inter alia, intangible assets, being know-how,
patents, copyrights, trademarks, licenses, franchises, ‘or any other business or commercial rights
of similar nature’. The Supreme Court held that ‘goodwill’ will fall under the expression ‘any
other business or commercial right of a similar nature’, and hence be an ‘asset’ in terms of
Explanation 3 (b) to S 32 (1).
In Animal Welfare Board of India v A Nagaraja & Ors.301, the words ‘or otherwise’ not being
construed this principle was applied while interpreting S 11 (1) (a) of the Prevention of Cruelty
to Animals Act, 1960, which states that if any person beats, kicks, overrides, overdrives,
overloads, tortures ‘or otherwise’ treats any animal so as to subject it to unnecessary pain or
suffering, he commits the offence of treating animal cruelly. The Supreme Court held that the
words ‘or otherwise’ are not used as words of limitation and that the Legislature intended the
expression to cover all situations where animals are subjected to unnecessary pain or suffering
which may not fall within the meaning of the preceding clause. Hence, jallikattu, bullock cart
races and other such events were held to fall within the ambit of S 11 (1) (a) of the Act.
In Manga v State of Uttarakhand 302 , S 141 of IPC, 1860, was in question which defines
‘unlawful assembly’ to be an assembly of five or more persons, if the common object of the
persons composing that assembly is inter alia, to commit any mischief or criminal trespass, ‘or
other offence’. The Supreme Court REFUSED to apply the principle of EJUSDEM GENERIS to
the words ‘other offence’, and thereby restrict it only to minor offences such as mischief or
criminal trespass. The words ‘other offence’ were therefore held to mean all other offences
which are punishable under the IPC in light of the definition of ‘offence’ in S 40 of the IPC.
The rule of EJUSDEM GENERIS has to be applied with care and caution. It is not an inviolable
rule of law, but it is only permissible inference in the absence of an indication to the contrary,
and where context and the object and mischief of the enactment do not require restricted
meaning to be attached to words of general import, it becomes the duty of the courts to give
those words their plain and ordinary meaning.
It may also be noticed that the rule of EJUSDEM GENERIS has, it appears, no inverse
application. General words preceding the enumeration of specific instances are not governed by
this rule and their import cannot be limited by any such principle. At any rate, when the
Legislature before enumerating specific examples uses the words ‘without prejudice to the
generality of the foregoing provision’ the preceding general provision cannot be restricted by
applying the rule of EJUSDEM GENERIS.
300
(2012) 12 SCC 488.
301
(2014), 7 SCC 547,
302
(2013) 7 SCC 629.
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Words of Rank
As an outcome of the rule of EJUSDEM GENERIS, there is another rule that statutes which deal
with persons or things of inferior rank are not extended to those of superior degree by
introduction of general words and the general words following particular words will not cover
anything of a class superior to those to which the particular words relate303. Thus, it has been
held that duty imposed on ‘copper, brass, pewter, and tin and all other metals not enumerated’
did not cover silver or gold, these being of superior kind to the particular metals enumerated304.
REDDENDO SINGULA SINGULIS
Where there are general words of description, following an enumeration of particular things such
general words are to be construed distributively, REDDENDO SINGULA SINGULIS; and if the
general words will apply to some things and not others, the general words are to be applied to
those things to which they will, and not to those to which they will not apply.
In other words, the different portions of a sentence, or different sentences, are to be referred
respectively to the other portion or sentences, to which we can see they respectively relate even
if strict grammatical construction should demand otherwise.
Thus, ‘I devise and bequeath all my real and personal property to A’ will be construed,
REDDENDO SINGULA SINGULIS by applying ‘devise’ to ‘real’ property and ‘bequeath’ to
‘personal’ property305 and in the sentence: ‘If any one shall draw or load any sword or gun’ the
word ‘draw’ is applied to ‘sword’ only and the word ‘load’ to ‘gun’ only, because it is
impossible to load a sword and draw a gun306.
In Koteshwar Vittal Kamath v K Rangappa Baliga & Co.307, this rule has been applied in the
construction of the Proviso to Art 304 of the Constitution which reads: Provided that no Bill or
amendment for the purpose of clause (b) shall be introduced or moved in the Legislature of a
State without the previous sanction of the President. It was held by the Supreme Court that the
word ‘introduced’ referred to ‘Bill’ and the word ‘moved’ to ‘Amendment’.
xiii) EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS
This maxim means that ‘Express mention of one thing implies the exclusion of another’. Where
two expressions are used in a statute one of which generally includes the other, the more general
expression excludes the less general.
303
Canterbury’s (Archbishop) case,(1596) 76 ER 519, Copland v Powell (1823) 130 ER 149.
304
Casher v Holmes, (1831) 109 ER 1263.
305
OSBORNE, Concise Law Dictionary, 7th Edn., p. 281.
306
WHARTON, Law Lexicon, 14th Edn., p. 850.
307
AIR 1969 SC 504.
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In Khemka & Co. v State of Maharashtra308, this principle was applied while interpreting S 9
(2) of the Central Sales Tax Act, 1956. The first part of the provision vested powers of the State
officials to act on behalf of the Central Government for assessing, re-assessing and enforcing
payment of tax while the latter part of the provision provided that this will be as if the tax or
penalty payable under the Central Act is a tax or penalty under the general Sales Tax Law of the
State. The Supreme Court held that the penalty provisions in the Central and State legislations
were special provisions in each Act and were not part of the general Sales Tax Law of the Centre
or the State. Therefore, the principle of EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS was
applicable here.
xiv) EXPRESSUM FACIT CESSARY TACITUM
This maxim is a synonym of the aforesaid maxim and means that where there is express mention
of certain things, then anything not mentioned is excluded.
It is a principle of logic and common sense and not merely a technical rule of construction.
xv) GENERALIA SPECIALIBUS NON DEROGANT & GENERALIBUS SPECIALIA

DEROGANT
There are two co-related maxims, GENERALIA SPECIALIBUS NON DEROGANT and
GENERALIBUS SPECIALIA DEROGANT. The first maxim means general things do not
derogate from special things while the second maxim means that special things derogate from
general things.
According to GENERALIA SPECIALIBUS NON DEROGANT, a general Act is not construed as

repealing a particular or special Act. Even if the particular Act is earlier in time but if it deals
with a special object, a later enacted general law will not abrogate the particular Act, unless a
contrary intention is expressly indicated.
According to MAXWELL, ‘A general law does not abrogate an earlier special one by mere
implication. Where there are general words in a later Act capable of reasonable and sensible
application without extending them to subject specially dealt with by earlier legislation, you are
not to hold that earlier and special legislation indirectly repealed, altered or derogated from
merely by force of such general words, without any indication of a particular intention to do soc.
In such cases it is presumed to have only general cases in view, and not particular cases which
have been already otherwise provided for the special Act’.
In Harish Chandra Hegde v State of Karnataka 309, it was held that Karnataka Scheduled Castes
and Scheduled Tribes (Prohibition of Transfer or Certain Lands) Act, 1978 being a special Act
would override the provisions of Town Planning Act, 1882 which is a general Act. Therefore, S
308
AIR 1975 SC 1549.
309
(2004) 9 SCC 780.
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51 of the Town Planning Act, 1882 was held to be not applicable to proceedings u/S 4 & 5 of the
Act even when the alienation had been made prior to the enforcement of the Act.
Exception to this rule is legislative intent. i.e., unless a contrary intention is expressly indicated
in a general law, later enactment will not abrogate or repeal the earlier special Act.
If a special provision is made on a certain subject, that subject is excluded from the general
provision. This is what the maxim GENERALIBUS SPECIALIA DEROGANT means. Special
law excluding remedy under general law must be strictly construed. In a case of acquisition of
title by adverse possession, it was held that it is permissible for a tribal to acquire title over
another tribal’s land by adverse possession but in view of the specific prohibition in the special
law, the general law cannot prevail and adverse possession by a non-tribal is not permissible310.
310
Amarendra Pratap Singh v Tej Bahadur Prajapati, (2004) 10 SCC 65.
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Operation of Statutes
1. Commencement
2. Retrospective Operation
a. General Principles
i. Power to make retrospective laws
ii. Statutes dealing with substantive rights
iii. Statutes dealing with procedure
iv. Statements of the rule against retrospectivity
v. Language not always decisive
b. Statutes regulating succession
c. Statutes regulating transfers and contracts
d. Statutes of limitation
e. Fiscal statutes
f. Penal statutes
g. Statutes prescribing posterior disqualification on past conduct
h. Statutes conferring prospective benefit on antecedent facts: Remedial statutes
i. Declaratory statutes
j. Statutes regulating appeals
k. Statutes affecting finality of orders
l. Pending proceedings
i. Alteration of substantive rights
ii. Alterations in matters of procedure
3. Operation Controlled on Considerations of Constitutionality: Presumption against exceeding
Constitutional Powers
a. Legislative Powers
b. Presumption of Constitutionality
c. Rule of Construction
4. Operation Controlled on Considerations of Territorial Nexus: Presumption against exceeding
Territorial Powers
a. Principle of Territorial Nexus
i. General
ii. Legislation under the Government of India Act, 1935
iii. Legislation under the Constitution of India
b. Rule of Construction
5. Other relevant considerations relating to Operation
a. Presumption that Legislation is territorial
b. Operation as to foreigners: regard to principles of International Law in that respect
i. Regard to International agreements or conventions and International Law
ii. Acts passed to give effect to international treaties and conventions
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➢ Commencement
According to S 3 (13) of General Clauses Act, 1897, ‘Commencement’, used with reference to
an Act, means the day on which the Act comes into force. According to S5, General Clauses Act,
‘unless provided otherwise, a Central Act comes into operation on the day it receives the
Presidential assent and is construed as coming into operation immediately on the expiration of
the day preceding its commencement’.
Thus, if the President gives assent to a Central Act on 26th January at 10.30 a.m., it would be
construed to have come into operation on the midnight between 25th and 26th January. Under the
various State General Clauses Acts a State Act comes into force on the day when the assent of
the Governor or the President, as the case may be, is first published in the Official Gazette of the
State.
The commencement of an Act at times, is
• Postponed to some specified future date or to such date as the appropriate government
may, by notification in the Official Gazette, appoint; or
• Provision is made for appointment of different dates for coming into force of different
parts of the same Act.
An Act cannot be said to commence or to be in force unless it is brought into operation by

legislative enactment or by the exercise of authority by a delegate empowered to bring it into
operation311.
A provision in a Bill does not come into operation unless the enacting process is over and the
resultant Act containing that provision is brought into operation. But an Act can provide the
provisions of a Bill on a given subject will come into operation on their introduction in the
Legislature. Thus, in Pieco Electronics & Electricals Ltd. v Collector of Central Excise312, it
was held that S 4 of the Provisional Collection of Taxes Act, 1931 provides that a declared
provision (which refers to a provision relating to increase of a duty of Customs and Excuse with
a declaration that it is in public interest that the provision should have immediate effect) will
have the force of law immediately on the expiry of the day on which the Bill containing the
provision is introduced and it will cease to have the force of law when the provisions of the Act
come into operation as an enactment.
In Fuerst Day Lawson Ltd. v Jindal Exports Ltd.313, it was held that when an Act is preceded by
an identically worded Ordinance and the Act contains a provision that ‘all actions and orders
under the Ordinance are deemed to have been under the Act’, for all practical purposes the Act
311
Union of India v Sukumar Sen Gupta, AIR 1990 SC 1692 & State of Orissa v CHandrashekhar Singh, AIR 1970
SC 398.
312
JT 1997 (10) SC 368.
313
AIR 2001 SC 2293.
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will be deemed to be in operation and effective from the date of commencement of the
Ordinance.
In Panchugopal Barua v Umesh Chandra Goswamy314, it was held that an Act not applicable to
an area or a State cannot be made to apply there by judicial fiat but if a provision in such an Act
embodies a principle of justice, equity or good conscience the principle so embodies may be
applied to a case arising from an area or state to which the Act does not extend, if the fact
situation of the case so requires.
➢ Retrospective Operation
i. Power to make retrospective laws
The Union Parliament and State Legislatures have plenary powers of legislation within the fields
assigned to them and subject to certain constitutional and judicially recognized restrictions can
legislate prospectively as well as retrospectively315. Competence to make a law for a past period
on a subject depends upon present competence to legislate on that subject. By retrospective
legislation, the Legislature may make a law which is operative for a limited period prior to the
date of its coming into force and is not operative either on that date or in future316. The power to
make retrospective legislation enables the Legislature to obliterate an amending Act completely
and restore the law as it existed before the amending Act317. This power has also been often used
for validating prior executive and legislative acts by retrospectively curing the defect which led
to their invalidity and thus even making ineffective judgments of competent courts declaring the
invalidity. It is not necessary that the invalidity must be cured by the same Legislature which had
passed the earlier invalid Act. Thus, if a state Legislature passes an Act on a subject which falls
outside its competence and within the competence of Parliament and is for that reason held
invalid, Parliament can by passing a retrospective Act which incorporates the State Act cure the
invalidity318.
ii. Statutes dealing with substantive rights
It is a cardinal principle of construction that every statute is prima facie prospective unless it is
expressly or by necessary implication made to have retrospective operation. There is a
presumption of prospectivity articulated in the legal maxim NOVA CONSTITUTIO FUTURIS
FORMAM IMPONERE DEBET NON PRAETERITIS, i.e., ‘a new law ought to regulate what is
to follow, not the past’, and this presumption operates unless shown to the contrary by express
provision in the statute or is otherwise discernible by necessary implication319. But the rule in
314
JT 1997 (2) SC 554.
315
VS Hooda v State of Haryana, AIR 2005 SC 137.
316
District Mining Officer v TISCO, AIR 2011 SC 3134.
317
State of TN v Arroran Sugars Ltd., AIR 1997 SC 1815.
318
P Kannadasan v State of TN, AIR 1996 SC 2560.
319
Monnet Ispat & Energy Ltd. v Union of India & Ors., (2012) 11 SCC 1.
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general is applicable where the object of the statute is to affect vested rights or to impose new
burdens or to impair existing obligations. Unless there are words in the statute sufficient to show
the intention of the Legislature to affect existing rights, it is ‘deemed to be prospective only’.
If rights created in favor of any person, whether they are property rights or rights arising from a
transaction in the nature of contract or rights protected under a statute, are to be taken away by
any legislation, then that legislation will have to say so specifically by giving its provisions a
restrospective effect.
In Suhas H Pophale v Oriental Insurance Co. Ltd.320, this principle was applied by Supreme
Court to protect a ‘deemed tenant’ u/S 15 A of the Bombay Rent Act, 1947, from eviction as an
‘unauthorized occupant’ under the Public Premises (Eviction of Unauthorized Occupants) Act,
1971. It was held that a ‘deemed tenant’ u/1947 Act continued to be protected under its
succeeding Act, being the Maharashtra Rent Control Act, 1999, in view of the definition of
‘tenant’ u/S 7 (15) (a) (ii) thereof, and he therefore cannot be said to be in ‘unauthorized
occupation’ of the premises. His right as a ‘deemed tenant’ cannot be destroyed by giving
restrospective effect to the provisions of the Public Premises Act since there is neither such
express provision therein, nor is it warranted by any implication.
A close attention must be paid to the language of the statutory provision for determining the
scope of the retrospectivity intended by Parliament321.
Another principle flowing from presumption against retrospectivity is that ‘one does not expect
rights conferred by the statute to be destroyed by events which took place before it was
passed322.
Only in some cases, a distinction is made between an existing right and a vested right and it is
said that the rule against retrospective construction is applied only to save vested rights and not
existing rights. This distinction, however, has not been maintained in other cases. The word
‘retrospective’ has thus been used in different senses causing a certain amount of confusion. The
real issue in each is as to the scope of particular enactment having regard to its language and the
object discernible from the statute read as a whole.
iii. Statutes dealing with procedure
Statutes dealing with matters of procedure are presumed to be restrospective unless such a
construction is textually inadmissible. The rule that an Act of Parliament is not to be given
restrospective effect applies only to statutes which affect vested rights. It does not apply to
statutes which only alter the form of procedure or the admissibility of evidence, or the effect
320
(2014) 4 SCC 657.
321
Union of Inda v Raghubir Singh, AIR 1989 SC 1933.
322
Birmingham City Council v Walker, (2007) 3 All ER 445.
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which the courts give to evidence. If the new Act affects matters of procedure only, then, prima
facie, it applies to all actions pending as well as future.
Maxwell expressed this rule as – ‘No person has a vested right in any course of procedure. He
has only the right of prosecution or defense in the manner prescribed for the time being by or for
the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is
altered, he has no other right than to proceed according to the altered mode.
In Employees’ State Insurance Corp. v Dwaraka Nath Bhargava323, it was held that S 45 B of
ESIC Act, 1948 enables the ESIC to recover arrears of contribution from the employers as
arrears of land revenue, to be procedural and applicable to arrears falling due before coming into
force of the section.
iv. Statements of the rule against retrospectivity
The classification of a statute as either substantive or procedural does not necessarily determine
whether it may have a retrospective operation. A statute of limitation is generally regarded as
procedural but if its application to a past cause of action has the effect of reviving or
extinguishing a right of suit such an operation cannot be said to be procedural. It has also been
seen that the rule against retrospective construction is not applicable merely because a part of the
requisites for its action is drawn from a time antecedent to its passing. For these reasons the rule
against retrospectivity has also been stated avoiding the classification of statutes into substantive
and procedural and avoiding use of words like existing or vested.
In Secretary of State for Social Security v Tunnicliffe324, the Court laid a simple rule that, ‘the
true principle is that the Parliament is presumed not to have intended to alter the law applicable
to past events and transactions in a manner which is unfair to those concerned in them unless a
contrary intention appears. It is not simply a question of classifying an enactment as
retrospective or not retrospective. Rather it may well be a matter of degree – the greater the
unfairness, the more it is to be expected that the Parliament will make it clear if that is intended.
This was approved by House of Lords in Yamashita’s case325, in which during the pendency of
a claim in arbitration the Arbitration Act, 1980 was amended by inserting S 13-A which
empowered the arbitrators to dismiss a claim if there had been inordinate and inexcusable delay
on the part of the claimant in pursuing the claim which made fair resolution of the issues difficult
or caused serious prejudice to the respondent. Now the question arose whether the delay by the
claimant in pursuing the claim before the date of enactment of S 13-A could be taken into
account in considering the question of dismissal under that section and this question was
answered in the affirmative. However, this decision was overruled by House of Lords in Plewa v
323
AIR 1997 SC 3518.
324
(1991) 2 All ER 712.
325
(1994) 1 All ER 20.
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Chief Adjudication Officer326, in which the question was related to the construction of S 53 of
the Social Security Act, 1986. S 53 enabled the Secretary of the State to recover over-payment of
pension from either the recipient or from third parties on whose misrepresentation or failure to
disclose over payment was made. This provision which created a new obligation on third parties
for repayment was new. The Court of Appeal by applying the test of fairness to the section held
it to be retrospective. But the House of Lords held that the section created new obligation and the
presumption against retrospectivity applied. The section, therefore, did not apply to over-
payments made before its enactment. The over-payments before the new Act came into operation
were thus held to be recoverable only under the repealed Acts from the recipient being liabilities
incurred before the appeal.
This test of fairness was referred to by the Supreme Court in Vijay v State of Maharashtra327,
wherein, a new law which enacted that ‘no person shall be a member of a Panchayat or continue
as such who has been elected as a councilor of Zila Parishad or as a member of the Panchayat
Samiti’ was held to be retrospective and applicable to existing members of a Panchayat. The
Court observed that, ‘it is now well-settled that when a literal reading of the provision giving
retrospective effect does not produce absurdity or anomaly, the same would not be construed
only prospective. The negation is not a rigid rule and varies with the intention and purport of the
legislation, but to apply it in such a case is a doctrine of fairness. When a new law is enacted for
the benefit of the community as a whole, even in absence of a provision the statute may be held
to be retrospective in nature.
v. Language not always decisive
Although the language used is the most important factor in question on applicability of a
particular statute to past events but it cannot be said that use of present tense or present perfect
tense is decisive of the matter that the statute does not draw upon past events for its operation.
For example, the words ‘if a person has been convicted’ were construed to include anterior
convictions. Similarly, the words ‘has made’, ‘has ceased’, ‘has failed’ and ‘has become’ may
denote events happening before or after coming into force of the statute and all that is necessary
is that the vent must have taken place at the time when action on that account is taken under the
statute. The word ‘dying intestate’ were interpreted by the Judicial Committee not as connoting
the future tense but as a mere description of the status of the deceased person without any
reference to the time of his death. The words, ‘held on lease’, may be only descriptive of land
and may apply to lands held on lease prior to or after the coming into force of the Act. The
words, ‘when a person dies’, may include a person who died prior to the coming into force of the
Act.
326
(1994) 3 All ER 323.
327
(2006) 6 SCC 289.
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In each case the intention of the Legislature is to be gathered from the language used, the object
of the statute, nature of affected rights and the circumstances in which the statute is passed.
b. Statutes regulating succession
When any statute regulated the order of succession, it applies only to those successions which
open after the coming into force of law that alters the order of succession. Those statutes which
regulate the succession are not applicable to already opened succession because the effect of its
application will be to divest the estate from persons in whom it had become vested prior to
coming into force of the new statute.
In Eramma v Veerupana328, it was held that S 8 of Hindu Succession Act, 1956 enacting the
property of a male Hindu ‘dying intestate’ which devolve according the provisions, will not be
applicable wherein the Succession is already opened before the Act.
In Kotturuswami v Veerava329, S 14 of the Hindu Succession Act, 1956, was considered which
enacts that ‘any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and not as a limited
owner’. On its terms the section is retrospective but the Hindu female should be possessed of the
estate at the time the Act came into force. The section does not have any retrospective operation
larger than its language permits. Therefore, it was held that if the female Hindu has alienated the
estate prior to coming into force of the Act, neither she or her alienee would get the right of full
ownership under the section.
c. Statutes regulating transfers and contracts
Those statutes which prescribe formalities for effecting a transfer are not applicable to transfer
made prior to their enforcement. Similarly statutes dispensing with formalities which were
earlier necessary for making transfers have not the effect of validating transfer, which were
lacking in these formalities and which were made prior to such statutes.
When a transfer is made in contravention of a statutory prohibition it is invalid and it is not

validated by repeal of the statute containing a prohibition.
In Ahmad Raza v Abid Husain330, an oral mortgage created before the Transfer of Property Act,
1882 came into force and held valid according to the then existing law and therefore enforceable
even after the TP Act coming into force, because the Act, on its own terms is not retrospective
and, hence, does not affect any right or liability arising out of legal relation constituted before the
Act came into force, or any relief in respect of any such right or liability.
328
AIR 1966 SC 1879.
329
AIR 1959 SC 573.
330
ILR 48 All 484 (PC).
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However, certain posterior laws seriously affect the performance of existing contracts and the
most common example is where a contract is frustrated by supervening impossibility brought
about by subsequent statutes or by governmental steps taken under them331.
It is also held that, ‘a statute altering existing contracts and retrospective in that sense need not
necessarily be construed to be so retrospective as to affect a breach of contract or its consequence
which has taken place before its operation.
d. Statutes of limitation
Statutes of limitation do not create any right but prescribe periods within which legal
proceedings may be instituted for enforcement of rights which exist under the substantive law
and when these prescribed periods expire the right of suit comes to an end. Therefore, if a right
of action had become barred under an earlier Limitation Act, it cannot be revived by a later
Limitation Act even if it provides a larger period of limitation then that provided by the earlier
Act.
When any later Act provides for a shorter period of limitation than that provided by the earlier
Act and if a right of suit is subsisting according to the earlier Act on the date when the later Act
comes into force, it will not be taken to be extinguished332.
S 30 of the Limitation Act, 1963 provides that when a later Act enacts shorter periods, it is usual
to postpone its coming into effect for some reasonable time, or to make provision for a time gap
within which the benefit of the earlier Act can be taken.
Therefore, the statutes of limitation are retrospective in so far as they apply to all legal
proceedings brought after their operation for enforcing causes of action accrued earlier, but they
are prospective in the sense that they neither have the effect of reviving a right of action which
was already barred on the date of their coming into operation, nor do they have the effect of
extinguishing a right of action subsisting on that date. However, a statute by, express or implied
provision, may revive a barred claim by retrospectively extending limitation.
e. Fiscal statutes
Fiscal legislation imposing liability is generally governed by the normal presumption that it is no
retrospective. It is a cardinal principle of tax law that the law to be applied is that in force in the
assessment year unless otherwise provided expressly or by necessary implication. Assessment
creates a vested right and an assessee cannot be subject to reassessment unless a provision to that
effect inserted by amendment is either expressly or by necessary implication retrospective333.
331
Satyabrata v Mugneeram, AIR 1954 SC 44.
332
New India Insurance Co. Ltd. v Smt. Shanti Mishra, AIR 1976 SC 237.
333
Controller of Estate Duty Gujarat-I v. MA Merchant, AIR 1989 SC 1710.
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In Banarsidas v ITO, Distt. IV, Calcutta 334 , it was held that a provision which in terms is
retrospective and has the effect of opening up liability which had become barred by lapse of
time, will be subject to the rule of strict construction.
In the absence of a clear implication such a legislation will not be given a greater retrospectivity
than is expressly mentioned; nor will it be construed to authorize the Income-tax authorities to
commence proceedings which before the new Act came into force, had by the expiry of the
period then provided become barred335.
In Govinddas v Income Tax Officer336, S 171 (6) of the Income-Tax Act, 1961 was held to be
not applicable to assessment made on a HUF for any assessment year prior to 1st April, 1962,
when the Act came into force. S 171 (6) creates joint and several liability of the members to pay
the tax assessed on a HUF if the income-tax officer after completion of the assessment finds the
family has already effected a partition whether total or partial. It was held that as the liability
created by this section was not limited to the extent of the joint family properties coming to the
hands of a member and made him personally liable, it was a new liability and the section would
not be construed to apply to assessments completed under the old Act.
There is no fixed formula for the expression of legislative intent to retrospectivity to a taxation
enactment. Though the Legislature has enormous power to make retrospective taxing laws, yet
when a retrospective Act is entirely arbitrary and irrational it may be declared invalid as
offending Art 14 of the Constitution337. But the retrospective operation would have to be found
to be unduly oppressive and confiscatory before it can be held to be so unreasonable as to violate
constitutional norms of Art 14 and 19 of the Constitution338.
f. Penal statutes
Penal statutes are generally considered prospective. Those penal statutes which create offences
or which have the effect of increasing penalties for existing offences will only be prospective by
reason of the restriction imposed by Art 20 of the Constitution.
When an Act creates a new offence it will bring into its fold only those offenders which commit
all ingredients of the offence after the Act comes into operation. In Maruram v Union of
India339, S 433A of the CrPC was interpreted. This section requires that where a sentence of
imprisonment for life is imposed on conviction of a person for an offence for which death is one
of the punishments, such person shall not be released from prison unless he had served at least
fourteen years of imprisonment, and it was held that this section shall be applicable to sentences
334
AIR 1964 SC 1742.
335
National Agricultural Co-op Mktg. Federation of India Ltd. v Union of India, AIR 2003 SC 1329.
336
AIR 1977 SC 552.
337
Tata Motors Ltd. v State of Maharashtra, AIR 2004 SC 3618.
338
R C Tobacco (P) Ltd. v Union of India, (2005) 7 SCC 725
339
AIR 1980 SC 2147.
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imposed after the coming into force of the section and not to persons convicted before its coming
into force.
In Pyare Lal Sharma v MD., J & K Industries Ltd.340, Regulation 16.14 of the J & K Industries
Employees Service Rules was considered. This regulation was amended and certain more
grounds for termination of service of an employee were added. The Supreme Court held that the
period of unauthorized absence prior to the date of amendment could not be taken into
consideration for terminating the services of an employee. The Court observed: “it is the basic
principle of natural justice that no one can be penalized on the ground of a conduct which was
not penal on the day it was committed.”
In Sukhdev Singh v State of Haryana 341 , S 42 (2) of the Narcotic Drugs and Psychotropic
Substances Act, 1985, prior to its amendment, provided that where an officer takes down any
information in writing u/S 42 (1) or records ground for his belief under the proviso thereto, he
shall ‘forthwith’ send a copy thereof to his immediate official superior. The word ‘forthwith’ was
substituted for ‘within seventy-two hours’ by Act 9 of 2001 with effect from 2.10.2001 thereby
bringing more certainty to the requirement. The Supreme Court observed that amendments to
criminal would not intend that there should be undue delay in disposal of criminal trials or that
there should be a retrial just because the law has changed. In this case, information regarding an
alleged commission of an offence was received by the officer on 4.2.94, and the trial had already
been concluded on 4.7.98, prior to the coming into force of the Amendment Act of 2001. Since
the law, as it existed at the time of commission of the offence, would govern the rights and
obligations of the parties the un-amended S 42 (2) was held to apply.
g. Statutes prescribing posterior disqualification on past conduct
It is said that if a statute increased penalty on second conviction of an offence, a conviction

before the commencement of the statute could not be taken into account 342. If the object of a
statute is not to inflict punishment but to protect the public from the activities of undesirable
persons who bear the stigma of a conviction or misconduct of such a person before the operation
of the statute may be relied upon343.
h. Statutes conferring prospective benefit on antecedent facts: Remedial statutes
A prospective disqualification under a statute results from anterior misconduct, is not always
taken as sufficient to make the statute retrospective. Similarly the fact that a prospective benefit
under a statutory provision is in certain cases to be measured by or depends on antecedent facts
does not necessarily make the provision retrospective.
340
AIR 1989 SC 1854.
341
(2013) 2 SCC 212.
342
R v Austin, (1913) 1 KB 551.
343
Queen v Vine, (1875) 10 QB 195 & State of Bombay v Vishnu Ramchandra, AIR 1961 SC 307.
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In Bourcher Pierre Andre v Superintendent, Central Jail, Tihar, New Delhi 344, the Supreme
Court held that the benefit to set off pre-conviction detention period against the term of
imprisonment conferred by S 428 of the Criminal Procedure Code, 1974 ‘where an accused
person, has, on conviction been sentenced to imprisonment for a term’ is also available where the
sentence was imposed before the commencement of the Code to reduce the unserved portion of
the sentence and that in so construing the section it was not given any retrospective effect for it
did not affect the sentence already undergone but affected only that part of the sentence which
remained to be served in future.
Since remedial statutes are to be construed liberally, the inhibition of the rule against
retrospective construction may be applied with less insistence. Those statutes which provide for
new remedies for enforcement of existing rights will apply to future as well as past cause of
action because such statutes do not affect existing rights and are, therefore, classified as
procedural.
i. Declaratory statutes
The presumption against retrospective operation is not applicable to declaratory statutes. For
modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the
common law, or the meaning or effect of any statute. Such Acts are usually held to be
retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament
deems to have been a judicial error, whether in the statement of the common law or in the
interpretation of statutes. Usually, if not invariably, such as Act contains a preamble, and also the
word ‘declared’ as well as the word ‘enacted’345.
But the use of the words ‘it is declared’ is not conclusive that the Act is declaratory for these
words may, at times, be used to introduce new rules of law and the Act in the latter case will only
be amending the law and will not necessarily be retrospective. An Explanatory Act is generally
passed to supply an obvious omission or to clear up doubts as to the meaning of the previous
Act. It is well settled that if a statute is curative or merely declaratory of the previous law
retrospective operation is generally intended. The language ‘shall be deemed always to have
meant’, or ‘shall be deemed never to have included’ is declaratory, and is in plain terms
retrospective. In the absence of clear words indicating that the amending Act is declaratory, it
would not be so construed when the pre-amended provision was clear and unambiguous. An
amending Act may be purely clarificatory to clear a meaning of a provision of the Principal Act
which was already implicit. A clarificatory amendment of this nature will have retrospective
effect and, therefore, if the principal Act was existing law when the constitution came into force,
the amending Act also will be part of the existing law.
344
AIR 1975 SC 164.
345
Satnam Overseas (Export) v State of Haryana, AIR 2003 SC 66, Central Bank of India v Their Workmen, AIR
1960 SC 12 & CRAIES: Statute Law, 7th Edn., p. 58.
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In Mithilesh Kumari v Prem Bihari Khare346, S 4 of the Benami Transactions (Prohibition) Act,
1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was not passed to
clear any doubt existing as to the common law or the meaning or effect of any statute. The
conclusion, however, that S4 applied also to past benami transactions may be supportable on the
language used in the section.
In Commissioner of Income-Tax, Bombay v Podar Cement Pvt. Ltd.347, the Supreme Court held
that amendments introduced by the Finance Act, 1987 in so far they related to S 27 (iii), (iiia)
and (iiib) which redefined the expression ‘owner of house property;, in respect of which there
was a sharp divergence of opinion amongst the High Courts, was clarificatory and declaratory in
nature and consequently retrospective.
In Zile Singh v State of Haryana348, substitution of the word ‘upto’ for the word ‘after’ in the
proviso to S 13A (added in 1994) in the Haryana Municipal Act, 1973 by the Haryana Municipal
(Second Amendment) Act, 1994 was held to be correction of an obvious drafting error to bring
about the text in conformity with the legislative intent and, therefore, retrospective. Even without
the amendment of the proviso, the court in all probability would have read and interpreted the
section as corrected by the amendment.
j. Statutes regulating appeals
The right of appeal has been recognized by judicial decisions as a right which vests in a suitor at
the time of institution of original proceedings. An appeal is defined as the right of entering a
superior court and invoking its aid and interposition to redress an error of the court below.
After the institution of original proceedings if any change in the law relating to appeal occurs
which adversely affects this vested right of appeal is presumed not to be retrospective.
In Colonial Sugar Refining Co. v Irving349, an action was brought in the SC of Queensland in
1922. The Order in Council of 1860 at that time gave a right of appeal to His Majesty in Council
from the judgment of the SC. The SC delivered the judgment in 1903. But about 10 days before
this judgment the Judiciary Act, 1903 came into force by which His Majesty in Council ceased to
be a Court of Appeal from decisions of the Sc and the only appeal under this Act lay to the HC
of Australia. However, against the judgment of SC, an appeal was laid before the Privy Council
and then the question arose whether the Judiciary Act, 1903 was retrospective so as to take away
the right of appeal to the Privy Council in an action brought before coming into the force of this
Act. The PC sustained the right of appeal and observed: “to deprive a suitor in a pending action
of an appeal to a superior tribunal which belonged to him as of right, is a very different thing
from regulating procedure. In principle, their lordships see no difference between abolishing an
346
AIR 1989 Sc 1247.
347
AIR 1997 SC 2523.
348
(2004) 8 SCC 1.
349
(1905) Ac 369 (PC).
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appeal altogether and transferring the appeal to a new tribunal. In either case there is an
interference with existing rights contrary to the well-known general principle that statutes are not
to be held to act retrospectively unless a clear intention to that effect is manifested.
The Supreme Court applied this principle in Garikapati v Subbiah Choudhary 350 and the
following propositions were deduced here:
• The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a
series of proceedings all connected by an intrinsic unity and are to be regarded as one
legal proceeding;
• The right of appeal is not a mere matter of procedure but is a substantive right;
• The institution of the suit carries with it the implication that all rights of appeal then in
force are preserved to the parties thereto till the rest of the carrier of the suit;
• The right of appeal is a vested right and such a right to enter the superior court accrues to
the litigant and exists as on and form the date the lis commences and although it may be
actually exercised when the adverse judgment is pronounced, such right is to be governed
by the law prevailing at the date of the institution of the suit or proceeding and not by the
law that prevails at the date of its decision or at the date of filing of appeal;
• This vested right of appeal can be taken away only by a subsequent enactment if it so
provides or by necessary intendment and not otherwise.
Whether the change in law abolishes altogether the right of appeal available at the date of
initiation of original proceedings, or whether it merely hampers its exercise by imposing
restrictions, the same principle of construction applies.
The right of appeal that vests at the commencement of original proceeding is limited to the
various stages of the same proceeding, for example, suit, appeal or second appeal etc. But
this right is not available in the case of subsequent original proceeding even if the same is
somewhat connected with the original one.
k. Statutes affecting finality of orders
The principle regarding statutes affecting finality of orders was laid down by the Privy Council
in Delhi Cloth & General Mills Ltd. v CIT., Delhi351. An order, which on the date it is made
final, givers rise to vested rights and a subsequent change in law giving rise to new right of
appeal or revision is presumed not to affect the finality of orders already made.
Alteration in law relating to appeals when it reduces already existing rights of appeal is, as
already seen, presumed to be prospective and will not affect pending proceedings; but if such
alteration increases rights of appeal, it will be presumed to be retrospective applying to orders
350
AIR 1957 SC 540.
351
AIR 1927 PC 242.
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subsequently made in pending proceedings, though it will not affect finality of orders already
made.
l. Pending proceedings
i. Alteration of substantive rights
A retrospective statute which affects rights in existence is not readily construed to affect
adjudication of pending proceedings. The courts insist that to have that result the language
should be sufficiently clear, although it need not be express. The golden rule of construction is
that, in the absence of anything in the enactment to show that it is to have retrospective
operation, it cannot be construed as to have the effect of altering the law applicable to a claim in
litigation at the time when the Act was passed.
ii. Alterations in matters of procedure
As a litigant has no vested right in any matter of procedure, alterations in procedural law are
generally held to be retrospective in the sense that they apply to future as well as to pending
actions.
➢ Operation Controlled on Considerations of Constitutionality: Presumption against

exceeding Constitutional Powers
a. Legislative Powers
Art 246 and Lists I, II and III in the Seventh Schedule of the Constitution confer legislative
powers on Parliament and State Legislatures. Parliament has exclusive power to make laws with
respect to any of the matters in List I while State Legislatures have exclusive power to make
laws with respect to matters in List II, whereas both the Parliament and State Legislatures have
power to make laws with respect to matters in List III. List I is known as the Union List, List II
as the State List and List III is the Concurrent List. Residuary power of Legislation is vested in
Parliament by virtue of Art 246 (6) and entry 97 in List I. the power of State Legislatures to
make laws is subject to the power of Parliament to make laws with respect to matters in Lists I
and III.
A matter mentioned in an entry in any list is construed to cover all ancillary or subsidiary matters
which can reasonably be said to comprehended in it. Entries are given widest possible
construction and where wide construction of any entry leads to a conflict or overlapping with
another entry in the same or different list, the rule of harmonious construction is applied so as to
reconcile the conflict and to give effect to all of them352.
In Naga Peoples Movement of Human Rights v Union of India 353 , it was said that while
examining the legislative competence of Parliament to make a law, all that is required to be seen
352
Cal. Gas (Prop) Ltd. v State of W.B., AIR 1962 SC 1044.
353
AIR 1998 SC 461, p. 446.
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is whether the subject matter falls in List II which Parliament cannot enter, for in view of the
residuary power vesting in the Parliament, other matters are not outside the legislative
competence of the Parliament. In pith and substance of the Legislation resolves the question
whether the Legislature has kept itself within the jurisdiction assigned to it or has encroached
upon a forbidden field. Where pith and substance of the Legislation is covered by an entry within
the permitted jurisdiction of the Legislature, any incidental encroachment in the rival field is to
be disregarded.
According to Art 254 of the Constitution of India, a law made by a State Legislature with respect
to a matter in Concurrent List if repugnant to a law made by the Parliament will be void to the
extent of repugnancy unless the State law has received the assent of the President in which case
it will prevail in that State.
The doctrine of pith and substance which permits incidental encroachment in the rival field
makes it possible that a law made by the State Legislature on some matters in List II makes some
incidental encroachment on some matter in List I. Such an incidental encroachment will be valid
if the field of encroachment is not covered but if the field is already covered, such an
encroachment will be void to the extent of repugnancy. If subsequently the field is covered by a
law made by the Parliament, then that incidental encroachment will become void.
Repugnancy arises when the superior legislation evinces an intention to cover the entire field
leaving no room for the rival legislation to operate in that field. In case of direct conflict between
competing legislation when these conflicting legislations cannot be reconciled and it becomes
impossible to give effect to both, repugnancy arises.
Neither the Parliament nor the State Legislature can violate any provisions of the Constitution of
India.
b. Presumption of Constitutionality
There is a presumption of constitutionality of the rule. The court ought not to interpret the
statutory provisions, unless compelled by their language, in such a manner as would involve its
unconstitutionality, since the legislature or the rule making authority is presumed to enact a law
which does not contravene or violate the constitutional provisions. Therefore, there is a
presumption in favor of constitutionality of a legislation or statutory rule unless ex facie it
violates the fundamental rights guaranteed under Part III of the constitution. If the provision of a
law or the rule is construed in such a way as would make it consistent with the Constitution and
another interpretation would render the provision or the rule unconstitutional, the Court would
lean in favor of the former construction354.
354
M L Kamra v New India Assurance Co. Ltd. (1992) 2 SCC 36.
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In Chiranjit Lal Chowdhary v Union of India355, it was observed that, ‘There is a presumption
that the legislature does not exceed its jurisdiction and burden of establishing that the Act is not
within the competence of the Legislature, or that it has transgressed other constitutional
mandates, such as those relating to fundamental rights, is always on the person who challenges
its vires’.
c. Rule of Construction
If on one construction a given statute will become ultra vires the powers of the legislature
whereas on another constructions, which may be open, the statute remains effective and
operative, the court will prefer the latter, on the ground that the legislature is presumed not to
have intended an excess of its jurisdiction. This rule is applicable only when two views are
possible as to the meaning of the statutory language
As the general words are construed in a limited sense to avoid the statute becoming
unconstitutional, in the same way the words may be construed in the wider sense when the
narrow construction renders the law unconstitutional and that result can be avoided by giving the
words a wider meaning.
When any enactment cannot be saved by construing it to be consistent with its constitutionality,
then it is to be seen whether it can be saved partly. When a part of the Act is inconsistent with the
higher law in the Constitution then it can be saved partly if the test of severability is satisfied.
➢ Operation Controlled on Considerations of Territorial Nexus: Presumption against

exceeding Territorial Powers
a. Principle of Territorial Nexus
i. General
Non-Sovereign Legislatures like those of colonies, Australian States or
Canadian Provinces are incompetent to legislate with extra-Territorial effect.
This means that a law made by such a legislative must bear a real Territorial
connection with the subject-matter with which it is dealing.
ii. Legislation under the Government of India Act, 1935

S 99(1) of the GOI Act, 1935 provided that the Federal Legislature was
empowered to ‘make laws for the whole or any part of British India’ and the
Provincial Legislatures were empowered to ‘make laws for the province or
any part thereof’. S 99 (2) enumerated certain matters and provided that no
Federal law shall, on the ground that it would have extra-territorial operation,
be deemed to be invalid in so far as it applied to those enumerated matters.
Both the Federal and the Provincial Legislatures were thus, subject to the rule
forbidding extra-territorial Legislation in the sense that presence of a
355
AIR 1951 SC 41.
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‘sufficient’ or ‘real’ territorial connection with British India in respect of

Federal Laws and with the Province concerned in respect of Provincial laws,
was necessary to bring a law within their Legislative competence.
If sufficient territorial nexus or connection existed, then the Legislation was to

be valid and in this case it would be entirely immaterial to see whether the
liability imposed was proportionate or disproportionate to the territorial
connection.
iii. Legislation under the Constitution of India

Art 245 of the Constitution of India provides that ‘no law made by Parliament
shall be deemed to be invalid on the ground that it would have extra territorial
nexus. Therefore, Legislation made by the Parliament cannot be questioned on
the ground that it has extra-territorial operation.
Sufficiency of the territorial connection involves a consideration of two

elements, namely:
a. The connection must be real and not illusory; and
b. The liability sought to be imposed must be pertinent to that
connection.
If the nexus is rational on a consideration of the aforesaid two elements, any
further examination of the sufficiency of nexus cannot be a matter of
adjudication before the court356.
b. Rule of Construction
The general rule is that a Legislature is presumed not to have exceeded its
constitutional powers and a construction consistent with those powers is to be put
upon the laws enacted by the Legislature. The corollary of this principle is that if on
one construction of the statute offends the rule forbidding extra-territorial legislation,
and if, by another construction, which may be open such a result is avoided the latter
construction will be preferred.
It is well settled that the laws enacted by the Legislature having no extra territorial
powers of legislation like those of colonies, Canadian Provinces, Australian States,
and States in the Indian Republic must for their validity satisfy the test of real
territorial nexus.
➢ Other relevant considerations relating to Operation

a. Presumption that Legislation is territorial
356
Khyerbari Tea Co. Ltd. v State of Assam, AIR 1964 SC 925.
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Even when the legislative competence is not restricted on considerations of territorial

nexus, it is presumed that statutes are not intended, in the absence of contrary
language or clear implication, to operate on events taking place or persons outside the
territories which the statutes are expressed to apply.
b. Operation as to foreigners: regard to principles of International Law in that respect

i. Regard to International agreements or conventions and International Law
The presumption that a statute is not intended to apply to persons outside the
territories of the State enacting it, is particularly strong in case of foreigners, for
as to them the normal presumption is further strengthened by another
presumption that the legislature intends to respect the rules of International law.
ii. Acts passed to give effect to international treaties and conventions
When the terms of a statute are clear and unambiguous, effect must be given to
them whether or not they carry out the State’s treaty obligations, for the
sovereign power of legislation extends to breaking treaties and any remedy for a
breach of an International obligation lies in a forum other than the State’s
municipal courts.
However, when the terms of the legislation are not clear and capable of more
than one meaning, the treaty itself becomes relevant because there is a prima
facie presumption that Parliament does not intend to act in breach of
International Law. If one of the meanings which can be reasonable ascribed to
the legislation is consonant with the treaty obligation and another or others are
not, the meaning which is consonant is to be preferred.
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Expiry and Repeal of Statutes
Parliament enacts a law. The law once enacted continues to be in force till the Legislature desires
it to be so. Since the Parliament is the maker of law, it also has the power to withdraw any law
from operation at any time. The birth of a law, its life span and the date on which it would come
to an end is determined by the Legislature. The Parliament may fix the lifetime of a statute by
using express words to that effect in the statute itself. Where such a span is not provided, the law
remains operative for indefinite length of time. When Legislature is satisfied that some law or
any of its provisions has become obsolete, the Legislature will obliterate the same.
Kinds of Statutes on the basis of life
On the basis of life time, the statutes can be classified into –
➢ The statutes which survive for a known period. Such statutes are called ‘Temporary
Statutes’.
➢ The statutes which have no fixed life span and they remain operative for indefinite
period. Such statutes are called ‘Perpetual Statutes’.
Perpetual & Temporary Statutes
A statute may be perpetual or temporary. A statute becomes perpetual when no time is fixed for
its duration357, and such a statute remains in force until it is repealed either by express provision
or by implication. A perpetual statute is not perpetual in the sense that it cannot be repealed but it
is perpetual because it is not abrogate by efflux of time or by non-user.
A statute is temporary when its duration is for a specified time and it expires on the expiry of the
specified time unless it is repealed earlier. If the purpose of a statute is temporary the statute
cannot be regarded as temporary when no fixed period is specified for its duration. After a
temporary statute expires, it cannot be made effective by merely amending the same. Revival of
the expired statute can be done only by re-enacting a statute in similar terms or by enacting a
statute expressly saying that the expired Act is herewith revived.
Effect of Expiry of Temporary Statutes
S 6 of the General Clauses Act, 1897 which in terms is limited to repeals is not applied when a
temporary statute expires. The effect of expiry depends upon the construction of the Act. This
topic can be taken up under the following headings:
A. Legal proceedings under Expired statute

B. Notifications, Orders, Rules made under temporary statute
357
Jotindranath v Province of Bihar, AIR 1949 FC 175 & District Mining Officer v TISCO, AIR 2001 SC 3134.
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C. Expiry does not make the statute dead for all purpose
D. Repeal by a temporary statute
A. Legal Proceedings under Expired statute
A question often arises whether the legal proceedings under the expired statutes can be initiated
or continued after the Act has expired. Very often the Legislature itself enacts a saving provision
in the temporary Act which is similar in effect to S 6 of the General Clauses Act, 1897.
However, if such a saving provision is not present the normal rule is that proceedings taken
against a person under a temporary statute ipso facto terminate as soon as the statute expires358.
Therefore, in the absence of a saving provision when a statute expires, a person cannot be
prosecuted and convicted for an offence against the Act and if the prosecution has not ended
before the date of expiry of the Act, it will automatically terminate as a result of the termination.
In R v Wicks359, the appellant Wicks was tried and convicted for violating the Defense (General)
Regulations, 1939, made under the Emergency Powers (Defense) Act, 1939 in 1944. The trial
took place in May, 1946 when the Emergency Power (Defense) Act had come to an end because
of its expiry in February 1946. S 11 (1) of the amended Act read: ‘Subject to the provision of the
section this Act shall continue in force until the expiration of the period of 6 months beginning
from 24th day of Aug 1945 and shall then expire’. S 11 (3) of the Act provided that ‘the expiry of
the Act shall not affect the operation thereof as respects things previously done or omitted to be
done’. Now the question arose whether these words in S 11 (3) authorized the prosecution and
conviction of the offender notwithstanding the expiration of the Act. The court of Appeal said:
‘But for the provisions in S 11 (3) it could hardly be contented that a person could be convicted
of an offence against the Act after its expiration’. As to the effect of S 11 (3) it was contended
that the sub-section operated only on matters past and completed while the Act was in force.
However, the court refuted this argument and said, ‘while, no doubt it does cover completed acts
or transactions, we think the language is wide enough to make provisions of the Act apply, or, in
the language of the section, to operate, in respect of any act done before the expiration, even
though not perfected or completed till afterwards.
In Rayala Corporation v Director of Enforcement360, Rule 132-A of the Defense of India Rules,
1962, which related to the prohibition of dealings in foreign exchange was by the Amendment
Rules, 1965, ‘omitted except as respects things done or omitted to be done under that rule’. The
question was whether a prosecution in respect of contravention of Rule 132-A could be
commenced after the Rule was omitted. The answer was given in negative by the Supreme Court
and it was held that initiation of a new proceeding will not be a thing done or omitted to be done
under the rule but a new act of initiating a proceeding after the rule had ceased to exist.
358
S Krishnan v State of Madras, AIR 1951 SC 301.
359
(1946) 2 All ER 529.
360
AIR 1970 SC 494.
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In Attorney General for India v Amratlal Prajivandas361, during the period of emergency, when
the fundamental right under Art 22 was suspended the Parliament added S 12A in the
Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA). This
section was to have effect during the emergency only and it enabled detention of a person in
violation of clauses (4) & (5) of Art 22. These detention orders were to be withdrawn after the
emergency when the section itself expired. However, such orders were made the foundation for
taking action under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property)
Act, 1976 (SAFEMA), while challenging the notices under SAFEMA, it was contended that the
detention orders u/S 12A of COFEPOSA were void being violative of fundamental right u/A 22
and could not be relied upon for SAFEMA. However, this contention was not held good on the
ground that the detention orders u/S 12A, COFEPOSA were ‘thing done’ under that section and
could not be treated void after expiry of S 12A because of the saving clause 1A of Art 359 ‘as
respects things done or omitted to be done’ during the period S 12A was in operation.
B. Notifications, Orders, Rules made under temporary statute
The normal rule is that when a temporary Act expires, any notification, appointment, order,
scheme, rule, bye-laws made or issued under the statute will also come to an end with the expiry
of the Act and will not be continued even if the provisions of the expired Act are re-enacted; t
reason being that S 24 of the General Clauses Act, 1897, does not apply to such a situation.
Similarly, a person’s detention under a temporary statute relating to preventive detention will
automatically come to an end on the expiry of the statute362.
C. Expiry does not make the statute dead for all purpose
Expiry does not make the statute dead for all purposes even in the absence of a saving clause.
The nature of the right and obligation resulting from the provisions of the temporary Act and
their character may have to be regarded in determining whether the said right or obligation is
enduring or not. Therefore, in State of Orissa v Bhupendra Kumar363, it was held that a person
who has been prosecuted and sentenced during the continuance of a temporary Act for violating
its provisions cannot be released before he serves out his sentence, even if the temporary Act
expires before the expiry of full period of the sentence.
In Steavenson v Oliver364, u/S 4 of VI Geo. 4, C. 133, every person who held a commission or
warrant as surgeon or assistant surgeon became entitled to practice as an apothecary without
having passed the usual examination. This statute was temporary and expired on 1st August,
1826. It was held that a person who had acquired a right to practice as an apothecary under the
361
AIR 1994 SC 2179.
362
S Krishnan v State of Madras, AIR 1951 SC 301.
363
AIR 1962 SC 945.
364
(1841) 151 ER 1024.
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Act without passing the usual examination was not deprived of that right on expiration of the
Act.
D. Repeal by a temporary statute
When a temporary statute effects a repeal of an existing statute, a question arises whether the
repealed statute revives on the expiry of the repealing statute. S 11 (1) and S 38 (2) (a) of the
Interpretation Act, 1899 have no application to a case of expiry of a repealing Act. Similarly, S 6
(a) of the General Clauses Act, 1897 has no application on expiry of a repealing statute. But in S
7 of the General Clauses Act, which corresponds to S 11 (1) of the Interpretation Act, the
language is slightly different. However, having regard to the context and the setting of the
section it appears also to be inapplicable to a case of expiry of a repealing statute.
Therefore, a statute which is repealed by a temporary statute will revive or not on the expiry of
the repealing statute will depend upon the construction of the repealing statute.
Regarding the effect of the repealing of an earlier Act made by a temporary Act, it was observed
in State of Orissa v Bhupendra Kumar365, that ‘the intention of the temporary Act in repealing
the earlier Act will have to be considered, and no general or inflexible rule in that behalf can be
laid down. In Warren v Windle366, it was observed that, ‘a law, though temporary in some of its
provisions, may have a permanent operation in other respects. The statute 26 Geo.3,c. 108
professes to repeal the statute 19 Geo.2,c.35, absolutely, thought its own provisions, which it
substituted in place of it, were to be only temporary. In similar principle, in State of Haryana v
Amarnath Bansal367, it was held that the Jind State Civil Service Regulations, 1945 which were
repealed by Pepsu Ordinance no. 16 of Samvat 2005 did not revive after six months when the
Ordinance expired for the intention in repealing the Regulations was to repeal them absolutely.
When it is held on construction that the repealing section in a temporary statute expires with the
expiry of the Act, the repeal will be construed only as a temporary repeal.
Repeal may be Express or Implied
The general rule is that ‘the power of a legislative body to repeal a law is co-extensive with its
power to enact such a law’. However, this general rule is subject to any constitutional restriction.
The Legislature which has no power to enact a law on a particular subject-matter has also no
power to bind itself or it successor as to the course of future legislation for to acknowledge such
a power will mean that a legislature can curtain its own or its successor’s power which are
conferred by the Constitution and which cannot be restricted or taken away except by an
amendment of the Constitution.
365
AIR 1962 SC 945.
366
(1803) 102 ER 576
367
AIR 1997 SC 718.
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When a general Act says that its provisions shall apply unless ‘expressly excluded’ by any
special law it does not mean that the exclusion must be by express words only, it may be by
necessary implication also. In Hukumdev v Lalitnarain368, S 29 of the Limitation Act, 1963 was
considered. S 29 provides that Ss 4 to 24 of the Act shall apply only in so far as they are not
‘expressly excluded’ by special or local laws. It was held by the Supreme Court that the S 5 of
the Act does not apply to election petitions presented to the High Court u/ S 80-A of the
Representation of the People Act, 1951, as amended by Act 47 of 1966. The Supreme Court
observed that ‘even in a case where the special law does not exclude the provisions of Ss 4 to 24
of the Limitation Act by an express reference, it would nonetheless be open to the court to
examine whether and to what extent the nature of those provisions, or the nature of the subject-
matter and scheme of the special law, exclude their operation.
The court is to interpret the repeal and saving clauses in such a manner so as to give a pragmatic
and purposive meaning thereto. For example, it is one thing to say that commencement of
arbitration proceedings is dependent upon the facts of each case as that would be subject to the
agreement between the parties. It is also another thing to say that the expression ‘commencement
of arbitration proceedings’ must be understood having regard to the context in which the same is
used. But it would be a totally different thing to say that arbitration proceedings commence only
for the purpose of limitation upon issuance of a notice and for no other purpose369.
Express Repeal
The word ‘express’ means ‘clearly and definitely stated’. Therefore, when an earlier Act is
repealed by later distinct and repealing Act, it is called ‘express repeal’. The later enactment
declares in unequivocal terms that an existing law is sought to be repealed with effect from a
particular day.
Essentials of express repeal
➢ There must be a subsequent repealing Act.

➢ Such subsequent Act must seek to repeal an earlier Act.
➢ Specific words must be used in the subsequent repealing Act showing clear intendment to
effect repeal of an earlier Act.
➢ Usually any one of the following forms are employed to intend the express repeal –
o “…. is hereby repealed”
o “…. shall cease to have effect”
o “…. shall be inoperative”
o “…. shall be invalid”
o “…. all provisions inconsistent with this Act are hereby repealed”
368
AIR 1974 SC 480.
369
Milkfood Ltd. v GMC Ice Cream (P) Ltd., (2004) 7 SCC 288.
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Any particular form of words is not necessary to bring about an express repeal. The most
common words for express repeals include ‘is or are hereby repealed’, ‘shall cease to have
effect’, and ‘shall be omitted’, etc. when a new provision is ‘substituted’ in place of an existing
provision or a new provision is made in supersession of an existing provision, then the
declaration of invalidity of new provision on the ground of want of competence will also
invalidate the repeal. However, if the declaration of invalidity is on other grounds the repeal will
be effective although the new provision is declared invalid unless from the totality of
circumstances and context it is found that there was no intention to repeal in the event of the new
provision being struck down370.
Sometimes the Legislature does not enumerate the Acts which it sought to repeal but only says
that ‘all provisions inconsistent with this Act’ are hereby repealed. About this repealing
provision it is said that it merely substitutes for the uncertainty of the general law an express
provision of equal uncertainty.
There is another uncertain formula when the later Act provides that a particular earlier Act ‘shall
to the extent necessary to give effect to the provisions of this Act be deemed to have been
repealed or modified’. Such an uncertain formula was found in the case of Palani Ammal v
Viswanath Chettiar371. In this case, in S 13 of Madras City Tenants Protection Act, 1922 such a
formula was used to restrict the application of the Transfer of Property Act. The Supreme Court
held that determination of tenancy by forfeiture as envisaged by S 111 (g) of the Transfer of
Property Act must be deemed to have been repealed or modified because its applicability by
itself, especially S 9, will nullify and make it inoperative.
It has also been held that ‘where a provision of an Act is omitted by an Act and the said Act
simultaneously re-enacts a new provision which substantially covers the field occupied by the
repealed provision with certain modification, in that even such re-enactment is regarded having
force continuously and the modification or changes are treated as amendment coming into force
with effect from the date of enforcement of re-enacted provision372.
An amending Act which limits the area of operation of an existing Act by modifying the extent
clause, results in partial repeal of the Act in respect of the area over which its operation is
excluded373.
Implied Repeal
In this case, the Legislature does not use the words to precisely show its intention to repeal a law.
instead, it enacts a law which is so contradictory to an existing law that both cannot be given
370
Indian Express Newspapers v Union of India, (1985) 1 SCC 641.
371
AIR 1998 SC 1309.
372
CIT v Venkateshwara Hatcheries, AIR 1999 SC 1225.
373
Ekambarappa v EPTO, AIR 1967 SC 1541.
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effect to. This implies abrogation of the existing law. thus, implied repeal is the result of
inconsistent subsequent legislation. The implied repeal takes place in two ways:-
➢ When subsequent Act is so inconsistent with earlier Act that only one of the two can
remain in force.
➢ When a subsequent Act covers whole subject matter of the earlier Act and intended to be
a substitute for the earlier Act.
In Atal Tea Co. Ltd. v Regional PF Commr.374 , it was held that repeal may be express or
implied. If provisions of a later enactment are so inconsistent or repugnant with the provisions of
an earlier one that the two cannot stand together, the earlier Act can be said to have been
repealed by implication. There is no real distinction in essence between repeal and an
amendment. In this case question was relating to S 14-B of Employees Provident Funds and
Miscellaneous Provisions Act, 1952. This section was amended in 1988. By way of amendment,
power of Commissioner to levy damages was curtailed. Formerly it was up to 100% and not it is
as per sliding table under para 32-A of the scheme. Point is whether this curtailment of power is
prospective or applied also in connection with defaults prior to amendment for which no action
was initiated prior to amendment. It was held that there is no saving clause. There is a
presumption against retrospectivity. This rule may be overcome not only by express words in the
Act but also by circumstances sufficiently strong to displace it. The amended and un-amended
S14B are really incompatible and inconsistent with one another so far as rates of levy of damages
are concerned. By this amendment, provisions of S 14B so far as it conferred the discretionary
power to determine the rates at which damages would have to be levied, can be said to have been
repealed by implication. The discretionary power to levy damages stands curtailed by virtue of
amendment.
Doctrine of implied repeal is based on the presumption that the Legislature knows existing
laws and it did not intend to create confusion by enacting and retaining conflicting provisions.
Implied repeal may operate on a part of statute or on its entirety. If repugnancy relates to a part
of statute, that part of statute will stand repealed only to the extent of repugnancy.
Repeal shall not be inferred if two Acts can be read together and some application may be made
of words in earlier Act.
Presumption against implied repeal
There is a presumption against repeal by implication. Reason is based on the theory that
Legislature while enacting a law has complete knowledge of existing laws on the same subject
matter and therefore, when it does not provide a repealing provision, it gives out an intention not
to repeal existing legislation.
374
1998 (79) FLR 372 Cal HC.
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Test of implied repeal
In the absence of clear words, repeal should not be readily concluded. The following aspects
must be thoroughly considered:
➢ Whether the earlier and later laws are in direct conflict with each other.
➢ Whether the contradiction is so serious that no reconciliation is possible.
➢ Whether subsequent Act is so inconsistent with earlier Act that both the laws cannot
harmoniously co-exist and only one of the two can remain in force.
➢ Whether two laws occupy the same field. In Harish Chandra v State of MP375, it was
held that if two laws operate in the same field without collision, they cannot be said to
occupy the same field and there will be no inconsistency and no implied repeal, unless
later law intends to be exhaustive code.
➢ Whether Legislature intended to lay down an exhaustive code in respect of subject matter
replacing earlier law.
Implied repeal could therefore be inferred only when the earlier and later law operate in the same
field and occupy the same field but are so inconsistent with each other that both of them cannot
co-exist in harmony and only one can survive. Implied repeal may also be concluded when
legislative intent is to bring exhaustive code in respect of subject matter replacing earlier law. In
such cases, the earlier law is deemed to have been repealed by implication.
In State of MP v Kedia Leather and Liquor Ltd. and Others376, it was observed that the doctrine
of implied repeal is based on the theory that the Legislature, which is presumed to know the
existing law, did not intend to create any confusion by retaining conflicting provisions and
therefore, when the court applies the doctrine, it does not more than give effect to the intention of
the Legislature by examining the scope and the object of the two enactments and by comparison
of their provisions. The matter in each case is one of the construction and comparison of the two
statutes. The court leans against implying repeal. Unless two Acts are so plainly repugnant to
each other that effect cannot be given to both at the same time, repeal will not be implied, or that
there is necessary inconsistency in the two Acts standing together. To determine whether a later
statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the
true meaning and effect of earlier Act. Until this is done, it is impossible to ascertain whether any
inconsistency exists between two enactments.
General principles of implied repeal
➢ Only prior legislation is repealed by implication

Where the provisions of subsequent Act directly contradict the provisions of the earlier Act
and there is no possibility of reconciliation between them or when the subsequent Act covers
375
AIR 1965 SC 932.
376
2004 (1) Mh. LJ. SC 306.
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whole subject matter of the earlier Act, implied repeal may be inferred. It may be appreciated
that in these circumstances, it is the previous law which stands repealed by implication, not
the later one.
➢ Implied repeal may not operate on entire statute

It is not necessary that the whole statute is impliedly repealed. Implied repeal may affect only
a part of the earlier Act. Where certain provisions of later enactment are similar to or are in
agreement with the earlier law and both can stand and operate together, there is no implied
repeal in respect of such provisions. The question of implied repeal in such cases shall be
confined to only those provisions of previous Act which have been contradicted in the later
Act.
➢ Implied repeal of earlier law can be inferred only when subsequent law occupies the same
field, yet contradicts the earlier one
Implied repeal cannot be inferred if the previous law and later law can be read together and
both of them can be applied, may be to a limited extent, without interference. There could be
implied repeal of earlier legislation when the later law operates in the same field and
occupies the same field, but cannot co-exist with it due to inconsistency and contradiction.
In Delhi Municipality v Shivshankar377, it was held that the Prevention of Food Adulteration
Act, 1954 and Rules made there-under relating to vinegar were not impliedly repealed by the
subsequent Essential Commodities Act, 1955. Although both contained regulating provisions
and laid down standards of quality and composition of vinegar, it cannot be said that the two
laws could not stand together. The former does not render compliance with latter impossible,
nor compliance of former involves violation of latter.
➢ Implied repeal may be concluded when exhaustive Code is intended

When legislative intent is to replace earlier law by an exhaustive Code in respect of subject
matter, implied repeal of earlier Act may be inferred. In such cases, the earlier law stands
repealed by implication.
➢ Prior special law is not repealed by later general law

Ordinarily, a prior particular law or special law is not readily inferred to be repealed by a
later general law. The basis of this doctrine is the principle of ‘GENERALIA SPECIALIBUS
NON DEROGANT’ which means that general things do not derogate from special things.
Therefore, in the absence of clear and unequivocal words, a special law cannot be abrogated
by a subsequent general Act.
377
AIR 1971 SS 815.
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In Paradip Prot Trust, Paradip v Their Workmen378, S 36 (4) of Industrial Disputes Act,
1947 was in question which provides that a party cannot be represented by a legal
practitioner before a Labour Court, Tribunal or National Tribunal except with consent of
other parties and with leave of Labour Court , Tribunal or National Tribunal. Industrial
Disputes Act, 1947 is a special law. Subsequently, Advocates Act, 1961 was enacted S 30 of
which provides that every advocate shall be entitled as a right to practice in all courts and
before any Tribunal. It was held that the provision u/S 36 (4) of IDA was not affected by S
30 of AA.
➢ A prior general law may be affected by subsequent particular Act

Where the subject matter of a later particular Act was being governed by a general Act, such
general law may be affected by later special law. to explain it further, where certain matters
were being dealt with by a general law and subsequently the Legislature enacts a special law
on such matters, then earlier general law is affected by the later special law. the basis of this
doctrine is the principle of GENERALIBUS SPECIALIA DEROGANT which means that
special things derogate from general things. In such case, operation of particular Act may
have effect of partially repealing general Act.
In Ratanlal Adukia v Union of India379, S 80 of Railways Act, 1890 provided for a forum
where a suit for compensation for loss of life of or personal injury to, a passenger or for loss,
destruction, damage, deterioration or non-delivery of goods or animals against railway
administration may be brought. S 80 was held to be special provision of a self contained
Code and it impliedly repealed in respect of suits covered by it the general provisions of S 20
of the CPC, 1908.
➢ Affirmative enactment is not repealed by a subsequent affirmative Act

One affirmative enactment is not easily taken to be repealed by another later affirmative
enactment. But if later Act is precise negative of whatever authority existed under earlier Act,
the repeal shall be inferred.
➢ Conferral of similar powers under two enactments at different levels does not result in
implied repeal of earlier Act
If he similar powers are conferred by two legislations at different levels, then implied repeal
of earlier Act cannot be inferred.
In Ramchandra Mawalal v State of UP 380 , the Central Govt. made notification under
Essential Commodities Act, 1955 fixing higher rate of price of an essential commodity. State
378
AIR 1977 SC 36.
379
AIR 1990 SC 104.
380
(1984) SCC 28.
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Govt. issued an order under Defense of India Rules clarifying that the higher rate could not
be charged in respect of the stock already existing since prior to upward revision of rate. It
was held that the State Govt. was competent to issue the order. It was observed that there is
no legal bar to creating two sources of power to achieve the same purpose and that there was
no real inconsistency as the order of State was supplementary to Centre’s notification.
➢ Implied repeal can be inferred if later law imposes different punishment for same offence
Where an offence created by an earlier Act is again described in a later Act and the later Act
varies the procedure or imposes different punishment for that offence, in such a case the
earlier Act stands repealed by implication. But where offence described in later Act is
different form offence described in earlier Act, this principle has no application.
In State of MP v Veereshwar Rao381, S 26 of General Clauses Act provides that where an act
of omission constitutes an offence under two or more enactments, then the offender shall be
liable to be punished under either or any of those enactments; but shall not be punished twice
for the same offence. Art 20 (2) of the Constitution directs that no person shall be prosecuted
and punished for the same offence more than once. But these provisions apply only when two
offences are same. But if offence under two enactments is not identical, none of these
provisions shall apply.
Effect and Consequences of repeal
A previous law may be repealed either expressly or by implication. In both the cases, the
consequences are the same. Following are the effects of repeal of an enactment:
➢ Later Act abrogates prior one.

➢ Repealed Act ceases to exist and does not remain in force with effect from the date of appeal.
➢ As per general law, except in relation to the past and closed transactions, a statute after repeal
is completely obliterated as if it had never been enacted. As such all rights and causes of
action under repealed statute are destroyed.
➢ When an Act is repealed, all laws passed under it stand repealed unless there is a saving
provision.
➢ No proceedings can be commenced or continued under an Act after its repeal. However,
those cases remain unaffected by such repeal in which the proceedings have been brought to
finality prior to repeal of the statute. The cases already contemplated shall not be reopened by
the reason of repeal of law under which prosecution was made.
➢ As a general rule, after repeal of a statute, the law which was in force at the commencement
of the repealed statute, revives. Thus, where on statute ‘A’ is repealed by a second statute
‘B’, and subsequently statute ‘B’ is also repealed by a third statute ‘C’, the effect is that the
first statute ‘A’ revives, unless contrary is provided in the third statute ‘C’. however, this
381
AIR 1957 SC 592.
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common rule has been abrogated in by Ss 6 (a) and 7 of General Clauses Act, 1897. As a
result, the present position is that the first Act is not so revived unless third Act makes an
express provision to that effect.
➢ A law can be retrospectively amended to validate the transactions made under it, even after
its repeal.
➢ In State of Rajasthan v Mangilal Pindwal382, there was rule which permitted the Govt. to
effect compulsory retirement of a Govt. Servant by paying three month’s salary. This rule
was subsequently repealed and in its place, another rule was substituted. During the period
earlier rule was in operation, a government servant was retired on payment of an amount as
salary. When calculated later, the amount paid to that govt. servant was found to be short of
three month’s salary. Meanwhile the rule, under which compulsory retirement was given,
came to be repealed. As per the terms of the rule, the retirement was invalid because of non-
payment of full amount of three month’s salary. Therefore, in order to validate the action, an
amendment was brought to the rule after its repeal. This amendment was indeed retrospective
but was effective for the period during which the old rule remained in operation. According
to amendment, govt. could retire a govt. servant forthwith without paying him three month’s
salary but entitling him to claim salary after retirement. The amendment was held to be valid
and it was observed that since the repeal of law takes effect from the date of repeal and law
repealed remains in operation for the period before its repeal without assistance of any saving
clause for transaction past and closed, it can be retrospectively amended to affect such
transactions even after its repeal.
➢ When an existing statute is repealed by a temporary statute, it is a temporary repeal. After
expiry of such temporary Act, the repealed Act revives. In State of Haryana v Amarnath
Bansal383, Jind State Civil Service Regulation, 1945 was repealed by Pepsu Ordinance No.
16 of Samvat 2005. The Ordinance survived for a period of six months, after which it
expired. It was held that the Regulations did not revive after expiration of the Ordinance
because the intention in repealing the Regulations was to repeal them absolutely.
➢ According to common law the effect of repeal is that the statute is completely obliterated and
all rights under repealed statute are destroyed. However, the rights and liabilities accrued
under a law do not extinguish due to repeal of that law. In Amadalavalasa Cooperative
Agriculture and Industrial Society Ltd. v Union of India, it was held that the Liability to take
insurance policy for full value of factory or goods under Emergency Risks (Factories) Act,
1962 and Emergency Risks (Goods) Act, 1962 was absolute and could be enforced after
expiry of these Acts, even if the full value of goods or factory was determined by authorized
officer under these Acts after their expiry.
➢ S 6 of General Clauses Act, 1897 provides the effect of repeal as under:
382
AIR 1996 SC 2181.
383
AIR 1997 Sc 718.
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Where this Act, or any Central Act or regulation made after commencement of this Act,
repeals any enactment hitherto made or hereafter to be made, then, unless a different
intention appears, the repeal shall not
o Revive anything not in force or existing at the time at which the repeal takes
effect; or
o Affect the previous operation of any enactment so repealed or anything duly done
or suffered there-under; or
o Affect any right, privilege, obligation or liability acquired or incurred under any
enactment so repealed; or
o Affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or
o Affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
And any such investigation, legal proceeding or remedy may be instituted or continued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act
or Regulation had not been passed.
Amending Act and its Effects on Principal Statute
Amending Act is an Act which seeks to amend the provisions of any existing statute.
Amendment includes abrogation or deletion of a provision in an existing statute. However, the
Amending Act does not necessarily repeal or obliterate the provisions of the old Act. It may
contain essential provisions of a repealed Act.
When a subsequent Act amends an earlier Act in such a way as to incorporate itself, or
incorporate a part of itself into earlier Act, then earlier Act must thereafter be read and construed
as if the altered words had been written into it with ink and pen and old words are scored out so
that thereafter there is no need to refer to amending Act at all.
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Statutes affecting the Crown or the State
The Rule of Common Law
The rule of Common law can be studied under two heads –
b. Extent of the rule
General Principles
The rule of English law is that ROY N’ EST LIE PAR ASCUN STATUTE< SI IL NE SOIT
EXPRESSMENT NOSME which means ‘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 subjects and not for the King’.
In Willion v Berkeley384, ‘it is to be intended that when the King gives his assent he does not
mean to prejudice himself or to bar himself of his liberty and his privileges, but he assent that it
be a law among his subjects’.
There is one exception to the rule which is that the Crown may be bound by ‘necessary
implication’. If it is manifest from the very terms of the statute that it was the intention of the
Legislature that the Crown should be bound then the result is the same as if the Crown had been
expressly named. It is therefore, inferred that the Crown by assenting to the law agreed to be
bound by its provisions385.
In Magdelen College, Cambridge Case386, Lord Coke indicated three kinds of statutes which
bound the King without specially naming him:
1. Statutes for maintenance of religion, learning and the poor;

2. Statutes for suppression of wrong; and
3. Statutes that tend to perform the will of a founder or donor.
However, these generalizations have not been approved by modern writers and in this regard it
has been said that ‘the question whether the Crown is bound by a statute, in which express
provision is not made, is treated today as one to be answered by reference purely to the
provisions of the statute in question or the Code, of which it forms a part387.
The safest rule to decide whether a given statute binds the Crown ‘by necessary implication’,
which perhaps will be valid in all cases, is to read the statute as a whole and to see whether it is
384
(1562) 1 Plowed 223.
385
Bombay Province v Bombay Municipal Corpn., AIR 1947 PC 34.
386
(1616) 11 Co.
387
HALSBURY’S LAW OF ENGLAND, 3rd Edn.,Vol. 36, p. 431.
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manifest form the very terms of the statute, that it was the intention of the Legislature that the
Crown should be bound.
The House of Lords in Lord Advocate v Dumbarton District Council388, accepted the decision
of Privy Council given in Bombay Province’s case. Here in this case the contractors were
employed by the Ministry of Defense with the approval of the relevant Crown agency. While
carrying on certain work on Crownland adjoining a highway, contractors encroached upon a part
of the highway. The local highway authority and the local planning authority by issuing notices
claimed that the encroachment on the highway and the work undertaken by them were contrary
to the provisions of the Roads (Scotland) Act, 1947 and the Town and Country Planning
(Scotland) Act, 1872. It was held by the House of Lords that the Crown was not bound by these
Acts on the basis of the rule that the Crown is not bound by and Act unless named therein
expressly or by necessary implication.
Extent of the Rule
The protection of the rule of presumption that the Crown is not bound by statutes extends to
three classes of persons:
a. The Sovereign personally

b. His servants or agents acting as such, and
c. Persons, who though not strictly servants or agents
are considered to be in CONSIMILI CASU.
Persons in CONSIMILI CASU with servants of the Crown are persons who though independent
of the Crown perform, exclusively or to a limited degree, the regal Governmental functions such
as, the administration of justice, the carrying on of war, the making of the treaties of peace, the
repression of crime etc.
Class (b) covers not only officers of the State with ministerial status but all subordinate officials
as also servants holding statutory offices.
A good illustration is that of Mersey Docks & Harbour Board v Cameron389, in which a non-
profit earning statutory corporation, not under control of Crown or a Minister and whose
revenues were not Crown revenues claimed immunity from local rates and the question arose
before the House of Lords whether such a corporation could claim Crown privileges on the
ground that it was performing a public duty. Such privileges were not accorded to the
corporation. It was observed that ‘Long series of cases have established that where property is
occupied for the purposes of the Government of the country, including under that head the police
and administration of justice, no one is rate-able in respect of such occupation. And this applies
388
(1990) 1 All ER 1.
389
(1861-73) All ER Rep. 78 (HL).
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not only to property occupied for such purposes by the servants of the great departments of State,
such as the Post office; the House Guards; or the Admiralty – in all of which cases the occupants
might strictly be called the servants of the Crown; but also to property occupied by local Police;
to county buildings – or, occupied as a country court; or for a jail. In these latter cases it is
difficult to maintain that the occupants are, strictly speaking, servants of the sovereign, so as to
make the occupation that of Her Majesty; but the purposes are all public purposes of that kind
which, by the Constitution of this Country, fall within the province of Government and are
committed to the sovereign; so that the occupiers, though not strictly servants of the sovereign,
might be considered in CONSIMILI CASU.
In Bank Voor Handel EN Scheepvaart v Administrator of Hungarian Property390, Lord Tucker

deduced five propositions applicable to class (b) & (c) –
• The immunity extends at least to include all those officers of the State and their
subordinate’s who no perform pursuant to statutory authority, functions of public govt.
which were formerly the peculiar prerogative of the Crown.
• Such functions include the making and carrying on of war and the making of treaties of
peace and other consequential international arrangements and the performance thereof.
• It is immaterial whether the person in respect of whom the immunity is claimed is
himself an officer of the State with Ministerial status, or is a subordinate official of such
Minister, or is himself an executive officer of lower status than that of a Minister.
• The immunity extends to such persons only so long as they are acting in the capacity
described above.
• This immunity also extends to persons who do not come within the class described above
but are the owners or occupiers of property exclusively used for purposes of Govt.
The immunity only protects such persons in respect of liability or disability arising in respect of
the ownership or occupation of such property. This is the class (c) above and generally referred
to as in CONSIMILI CASU.
The Rule in India
In Bombay Province v Bombay Municipal Corporation391, the common law rule that the Crown
was not bound by a statute unless named expressly or by necessary implication was applied by
the Privy Council before the Constitution was adopted. But it continued to apply to India even
after the Constitution in the form that the State is not bound by a statute unless it is so provided
in the express terms or by necessary implication. However, in State of WB v Corporation of
Calcutta392 , this view was over ruled. In this case it was held that the common law rule of
construction was not accepted prior to the Constitution throughout in India and even in the
390
(1954) 1 All ER 969 (HL).
391391
AIR 1947 PC 34.
392
AIR 1967 SC 997.
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Presidency towns it was not regarded as an inflexible rule. It was further held that the rule of
Common Law which was based on prerogative of the Crown had no relevance to a democratic
republic and was inconsistent with the rule of law based on the doctrine of equality enshrined in
the Constitution. As a result of this decision, the rule that applies in India is, that a ‘general Act
applies to citizens as well as to State unless it expressly or by necessary implication exempts the
State from its operation’. The facts of the case were that the State of WB was carrying on trade
of a daily market without a license and paying the prescribed fee as required by S 218 of the
Calcutta Municipal Act, 1952. According to S 541 of the Act carrying on trade or business
without a license was an offence punishable with fine and fine levied is taken by the Corporation
in full satisfaction of the demand on account of the license. It was held that the State was bound
by these provisions of the Act and was liable for the offence as it had not taken a license to carry
on the business.
In Lucknow Development Authority v MK Gupta 393 , it was held that the above state rules
applies to Govt. bodies and corporations constituted under special Acts. The Consumer
Protection Act, 1986 applied to a statutory authority and a Govt. or a semi-Govt. body or a local
authority in the same way as it applied to private bodies for the Act does not either expressly or
impliedly indicate that these bodies are excluded from the purview of the Act.
In State of Bihar v Sonabati Kumari 394 , it was held that if a State disobeys a temporary
injunction, its property is liable to be attached under Order 39, Rule 2 (3) of the CPC, 1908. The
State is bound by the Code of Civil Procedure, the scheme of the Code being that subject to any
special provision made in that regard as respects the Govt., it occupies the same position as any
other party to a proceeding before the Court.
In cases where an Act does not apply to the Govt. an agency or instrumentality of the Govt.
which is not a department of the Govt., will be bound by the Act especially when it is welfare
legislation. Therefore, in Hindustan Steel Works Construction Ltd. v State of Kerala395, the
HSWCL, a company fully owned by the Central Govt. was held to be bound by the Kerala
Construction Workers Welfare Fund Act, 1939.
In Kapila Hingorani v State of Bihar396, it has been held that the State is normally not liable to
pay the salaries of employees of a Govt. Company or a Govt. Corporation even vicariously. But
when non-payment of salaries results in violation of fundamental right to life and liberty of
employees on a large scale, the corporate veil can be pierced and the State can be made liable for
having control over the affairs of the Govt. Co. or Corp. and it was duty bound to see that the
human rights of the employees are not infringed.
393
AIR 1967 SC 997.
394
AIR 1961 SC 221.
395
AIR 1997 SC 2275.
396
(2003) 6 SCC 1.
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Statutes affecting Jurisdiction of Courts
I. General Principles
1. Exclusion must be explicitly expressed or clearly implied.
2. Three classes of cases
3. Cases of breach of statutory duty
4. Omission to exercise statutory power
II. The Extent of Exclusion
1. Construction of Exclusionary Clauses

2. Cases of Nullity
3. Rule of Conclusive Evidence
III. Exclusion of Jurisdiction of Superior Courts
Exclusion must be explicitly expressed or clearly implied
The provisions excluding jurisdiction of civil courts and provisions conferring jurisdiction on
authorities other than civil courts are strictly construed.
There is a strong presumption that civil courts have jurisdiction to decide all questions of civil
nature. Therefore, the exclusion of jurisdiction of civil courts is not to be readily inferred and
such exclusion must either be ‘explicitly expressed or clearly implied’. For a court which would
otherwise have jurisdiction in respect of the subject matter concerned, ouster cannot be implied.
Ouster must be expressed397. In this case S 2 (1) (e) and (f) of Arbitration and Conciliation Act,
1996 defining ‘court’ and ‘international commercial arbitration’ and it was held that the courts in
India would have jurisdiction even in respect of an international commercial arbitration.
The existence of jurisdiction in civil courts to decide questions of civil nature is the general rule
and exclusion is an exception of this rule. Therefore, the burden of proof to show that jurisdiction
is excluded in any particular case is on the party who raises such a contention398.
The civil courts are courts of general jurisdiction and people have a right, unless expressly or
impliedly barred, to insist for free access to the courts of general jurisdiction of the State. On this
basis only the rule is made that exclusion of jurisdiction of civil courts is not to be readily
inferred.
Criminal courts are also courts of general jurisdiction and exclusion of jurisdiction of ordinary
criminal courts can be brought about by setting up courts of limited jurisdiction in respect of the
397
Bhatia International v Bulk Trading SA, AIR 2002 SC 1432.
398
Ramayya v Laxminarayn, AIR 1934 PC 84.
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limited field, but only if the vesting and the exercise of that limited jurisdiction is clear and
operative and there is an adequate machinery for the exercise of limited jurisdiction399.
It has been held that like other rules of construction the rule against exclusion of jurisdiction of
courts is attracted only where two or more reasonably possible construction are open on the
language of the statute and not where the legislative intent is plain and manifest to oust the
jurisdiction400.
It has been held that a suit to evict a tenant whose tenancy has expired by efflux of time is also a
suit to enforce a right under S 108 (q) of Transfer of Property Act and is not a suit solely arising
from a contract and is not barred401.
The Supreme Court has strictly construed Art 363 of the Constitution which bars the jurisdiction
of all courts including the Supreme Court in any dispute arising out of any provision in a treaty
etc., or in any dispute in respect of any right, liability or obligation arising out of ‘any of the
provisions of the Constitution relating to any such treaty etc.’ In the case of Madhav Rao
Scindia v Union of India 402 , it was held that a dispute that an order of the President de-
recognizing all the Rulers of Indian States passed under Art 366 (22) was in excess of authority
and beyond his powers and that the Rulers were entitled to the Privy Purse under Art 291, was
not barred by Art 363. In the said article the words ‘relating to’ were given a restricted meaning
and it was observed that the words ‘provisions of this Constitution relating to any such treaty etc;
meant provisions having a dominant and immediate connection with the treaty etc.
However, by the Constitution (26th Amendment) Act 1971 which deleted Art 291 and inserted
Art 363 A and amended the definition of Ruler in Art 366 (22) the effect of the above stated case
was taken away. This Constitution Amendment Act abolishing Privy Purses was held valid403.
Three Classes of Cases
In Wolverhampton New Waterworks Co. v Hawkesford404, Willes, J. stated: “There are three
classes of cases in which a liability might be established, founded upon statute. One is where
there was a liability existing at common law, and that liability is affirmed by a statute which
gives a special and peculiar form of remedy different from the remedy which existed at common
law; there, unless the statue contain words which expressly or by necessary implication exclude
the common law remedy, the party suing has his election to pursue either that or the statutory
remedy. The second class of cases is, where the statute gives the right to sue merely, but
provides no particular form of remedy the party can only to proceed by action at common law.
399
Bhimsen v State of UP, AIR 1955 SC 435.
400
Kilhota Hallohan v Zachilhu, AIR 1993 SC 412.
401
Raptakos Brett & Co. v Ganesh Property, AIR 1998 SC 3085.
402
AIR 1971 SC 530.
403
Raghunath Rao Ganpat Rao v Union of India, AIR 1993 SC 1267.
404
(1859) 6 CB (NS) 336.
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but there is a third class, viz., where a liability not existing at common law is created by a statute
which at the same time gives a special and particular remedy for enforcing it – the remedy
provided by the statute must be followed, and it is not competent to the party to pursue the
course applicable to cases of the second class.
For the first and third of three classes of cases, it has to be ascertained whether the statute in
question deals with and regulates an already existing right or liability or whether it creates a new
right or liability which has no existence apart from the statute. If the statute is of the first
category, the special remedy provided therein, subject to any provision for the exclusion of
ordinary remedy, will only be construed as an alternative one405.
A statute falling in the second of three classes of cases, prescribes no special remedy and
whether it creates new rights and liabilities are regulates the already existing ones, the normal
remedy through the medium of civil courts, which are courts of general jurisdictions remains
always open.
However, when a new right or liability is created by a statute which gives a special remedy for
enforcing it, the ordinary remedy of approaching the civil court is implied excluded.
In Premier Automobiles’ case406, it was held by the Supreme Court that if an industrial dispute
relates to the enforcement of a right or an obligation created under the Act then the only remedy
available to the suitor is to get the adjudication under the Act.
In Rohtas Industries Ltd. v Rohtas Industries Staff Union407, it was held that for wrongs created
by the Act the only remedy is what is provided in the Act. Therefore, in case of a strike which is
illegal the employer can have the workers punished u/S 26 but he has no right to claim
compensation for loss of business caused by the illegal strike.
In Mudakappa v Rudrappa408, it was held that the decision of the tribunal is made final and civil
courts’ jurisdiction was impliedly excluded. Therefore, the question whether the joint family or
one of the members was the tenant fell within the exclusive jurisdiction of the tribunal.
In Firm Radhakishan v Ludhiana Municipality409, under the Punjab Municipal Act, 1911 a
dispute regarding rate of terminal tax payable on a particular commodity which depended upon
the determination of character of the commodity arose and it was held that the order of the
Municipal Committee imposing the tax could not be challenged in a civil court.
405
Northern India Caterers Ltd. v State of Punjab, AIR 1967 SC 1581.
406
Premier Autobmobiles Ltd. v Kamlakar Shantaram Walke, AIR 1975 SC 2238.
407
AIR 1976 SC 425.
408
AIR 1994 SC 1190.
409
AIR 1963 SC 1547.
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Cases of Breach of Statutory Duties
There is no universal rule by reference to which the question of maintainability of a civil action
can infallibly be answered. In Doe d. Bishop of Rochester v Bridges410, it was observed that
‘When an Act creates an obligation and enforces the performance in a specified manner, we take
it to be a general rule that performance cannot be enforced in any other manner. If an obligation
is created but no mode of enforcing its performance is ordained, the common law may, in general
find a mode suited to the particular nature of the case.
In Pasmore v Oswaldtwistle Urban District Council411, the House of Lords approved the rule
stated in aforesaid case. In this case the question was as to maintainability of an action for
mandamus for enforcing the statutory duty of local authority u/S 15 of Public Health Act, 1875,
to provide sufficient number of sewers for draining their district. S 299 of the Act provided a
remedy for enforcing the statutory duty by a complaint to the Local Govt. Board and, therefore,
it was held that there was no remedy outside the Act. It was observed that ‘the principle that
where a specific remedy is given, it thereby deprives the person who insists upon a remedy of
any other form of remedy than that given by the statute, is one which is very familiar and which
runs through the law.
In Hague v Dy. Governor of Parkhurst Prison 412 , it was held that when a prisoner was
segregated in violation of the Prison Rules made under the Prisons Act, 1952, he had no cause of
action for claiming damages for breach of statutory duty.
Omission to Exercise Statutory Power
Subject to exceptional cases, the normal rule is that an omission by a public authority to exercise
a statutory power conferred for the benefit of the public does not give rise to breach of duty
sounding in damages.
In Stovin v Wise, a motor accident took place at a road junction partly because the view was
obstructed by an earth bank adjacent to the road. Although u/Ss 41 & 79 of the Highways Act,
1980 the local authority had statutory power to remove the earth bank but it took no steps in that
direction. It was held by the House of Lords that there was no common law duty on the authority
to exercise the power and omission to exercise it did not give rise to a claim for damages in
negligence. It was laid down that minimum preconditions for basing a duty of care upon the
existence of statutory power in respect of an omission to exercise the power, if it could be done
at all, were:
• That in the circumstances it would have been irrational for the authority not to have
exercised the power, so that in effect there was a public law duty to act and
410
109 ER 1001.
411
(1898) AC 387.
412
(1991) 3 All ER 733.
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• That there was exceptional grounds to hold that the policy of the statute conferred a right
to compensation on persons who suffered loss if the power was not exercised.
• These precautions were accepted and were also found to be satisfied by the Supreme
Court in Union of India v United India Insurance Co. Ltd.413 In this case, an express
train had collided with a passenger bus at an unmanned level crossing and the Union of
India owning the Railway was held guilty of negligence being in breach of its common
law duty for failing to convert the unmanned level crossing into a manned level crossing
having regard to the volume of traffic and in providing proper signboard for warning the
road traffic. The Union of India was also held liable for omission to exercise the power
under S 13 of the Railways Act which provides that the Central Govt. may require a
railway administration to erect fences, screen gates etc.
The Extent of Exclusion
Construction of Exclusionary Clauses
The absence of a provision to enable an authority or tribunal for holding an inquiry on a

particular question is indicative that jurisdiction of civil courts on that question is not excluded. It
has been held that the very provision setting up hierarchy of judicial tribunals for the
determination of a question is sufficient in most cases for inferring that the jurisdiction of the
civil courts to try the same matter is barred414.
When jurisdiction of civil courts on a particular matter is excluded by transferring that

jurisdiction from civil courts to tribunals or authorities, it is presumed that such tribunals or
authorities can draw upon that principles of procedures of CPC, though not expressly made
applicable, to ensure fair procedure and just decision unless such principles are inconsistent with
the provisions of the Act constituting them415.
It is the duty of persons upon whom statutory powers are conferred to keep strictly within those
powers. If such persons act in excess of their powers, they are to the extent to which they exceed
their powers, deprived of any protection conferred upon them by the statute in question, and will
be subject to the ordinary remedies existing at common law. An injunction may be granted to
restrain an act in excess of statutory powers and a person injured by such an act may be entitled
to recover damages from the persons purporting to exercise the power416.
In Firm Radha Kishan v Ludhiana Municipality417, the dispute was as to rate of terminal tax
payable on a particular commodity which depended upon the determination of the character of
the commodity, it was held that the order of Municipal Committee imposing the tax could not be
413
AIR 1998 SC 640.
414
Desika Charyulu v State of AP, AIR 1964 SC 806.
415
Rajasthan SRTC v Poonam Pahwa, AIR 1997 SC 2951.
416
Halsbury’s Laws of England, 3rd Edn., Vol.30, pp.686,687.
417
AIR 1963 SC 1547,
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challenged in civil court. The challenge will be permissible only if the assessment is
constitutionally invalid or is entirely without jurisdiction.
In Mafatlal Industries Ltd. v Union of India418, in dealing with refund provisions in the Central
Excises and Salt Act, 1944 and the Customs Act, 1962, a nine Judge Bench of the SC by
majority laid down the following general propositions:
a. A claim for refund of tax on the ground that it has been collected by misinterpreting or
misapplying the provisions of the taxing Act or the rules and notifications made there-
under has to be preferred in accordance with the provisions of the Act before the
Authorities and within the limitation specified therein and no suit is maintainable in that
behalf.
b. Where a refund is claimed on the ground that the provision of the Act under which it was
levied is or has been held to be unconstitutional, the claim can be made by a suit or by
way of a writ petition for such a claim is outside the purview of the Act; and
c. A claim for refund can succeed only when the claimant establishes that he has not passed
on the burden of the tax to others.
In the case of Commissioner of Income Tax v Parmeshwari Devi Sultania419 by an order passed
u/S 132 (5) of the Act certain ornaments recovered on search and seized from the premises of an
assessee were directed to be retained. However, the step mother of the assessee, instead of
applying u/S 132 (11), which provided a remedy for challenging the order, brought a suit for
partition of the ornaments which in substance was a suit for challenging the proceedings and the
order u/S 132 (5). It was held that suit was barred u/S 293.
When there is a non-compliance with fundamental provisions of the Act or fundamental

principles of judicial procedure which makes the proceedings before the tribunal or authority
illegal and void, a civil suit to challenge the order or decisions passed in such a proceeding is not
barred.
Special provisions curtailing the normal period of limitation for suit or prosecution have also
been strictly construed.
The extent of exclusion is really a question of construction of each particular statute. In the
matters of construction, the applicable general principles are subordinated to the actual words
used by the legislature.
Cases of Nullity
When can order passed by a tribunal or authority of limited jurisdiction be held to be a nullity?
The answer is supply by the original or pure theory of jurisdiction. The jurisdiction of a tribunal
418
1997 (5) SCC 536.
419
AIR 1998 SC 1276.
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is determinable at the commencement of a proceeding and if jurisdiction is properly assumed any

order passed thereafter will be within jurisdiction and conclusive thought it may erroneous in fact
or law. The pure theory of jurisdiction gave place to modern theory of jurisdiction according to
which defects of jurisdiction can arise even during or at the conclusion of a proceeding. The
courts make a distinction between jurisdictional questions of fact or law and questions of fart or
law which are not jurisdictional. If a question of fact or law is jurisdictional, the tribunal though
competent to inquire into that question cannot decide it conclusively, and a wrong determination
of such a question results in making the final decision is excess of jurisdiction. But if a question
of fact or law in non-jurisdictional, the tribunal’s decision is final and conclusive. It can be said
that tribunal cannot by a wrong determination of a jurisdictional question of fact or law exercise
a power which the legislature did not confer upon it420. However, in this theory the demarcation
between jurisdictional and non-jurisdictional questions of fact or law is not clear.
In Ujjam Bai v State of UP 421 , it was held that the adjudication by a tribunal of limited
jurisdiction is void, when –
a. Action is taken under an ultra vires statute;

b. The subject-matter of adjudication is beyond its competence or the order passed is such
which it has no authority to pass;
c. The adjudication is procedurally ultra vires being in violation of fundamental principles
of judicial procedure, and
d. Jurisdiction is assumed by wrongly deciding jurisdictional questions of law or fact.
A consideration of following points is relevant here:-
i. An exclusionary clause using the formula ‘an order of the tribunal under this Act shall
not be called in question in any court ineffective to prevent the calling in question of
an order of the tribunal if the order is really not an order under the Act but a nullity.
ii. Cases of nullity may arise when there is lack of jurisdiction at the stage of
commencement of enquiry e.g. when,
a. Authority is assumed under an ultra vires statute;
b. Tribunal is not properly constituted;
c. The subject-matter or the parties are such over which the tribunal has no authority
to inquire; and
d. There is want of essential preliminaries prescribed by the law for commencement
of the inquiry.
iii. Cases of nullity may also arise during the course or at the conclusion of the inquiry.
These cases are also cases of want of jurisdiction if the word ‘jurisdiction’ is
understood in a wide sense. For example –
420
R v Shoredich Assessment Committee, (1910) 2 KB 859.
421
AIR 1962 SC 1621.
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a. When a tribunal has wrongly determined a jurisdictional question of fact or law;

b. When it has failed to follow the fundamental principles of judicial procedure;
c. When it has violated the fundamental provisions of the Act;
d. When it has acted in bad faith;
e. When it grants a relief or makes an order which it has no authority to grant or
make; and
f. When by misapplication of the law it has asked itself the wrong question.
Rule of Conclusive Evidence
By enacting rules of conclusive evidence or conclusive proof, the legislature may make certain
matters non-justiciable. For example, if by legislative command proof of A is made conclusive
evidence or conclusive proof of B, the moment existence of A is established the Court is bound
to regard the existence of B as conclusively established and evidence cannot be let in to show the
non-existence of B. In effect the existence or non-existence of B after proof of A ceases to be
justiciable422.
In the case of Izhar Ahmed v Union of India423, the Supreme Court has laid down the test for
determining whether a rule of irrefutable presumption is a rule of evidence or a rule of
substantive law.
The effect of a conclusive evidence clause is subject atleast to two qualifications:
i. A conclusive evidence clause may be held to be invalid as an unreasonable restriction

of the fundamental rights.
ii. The insertion of such clauses in statutes conferring power may fail to shut out basic
defect of jurisdiction in exercise of the power. It may also be ineffective to bar an
attack on the ground of fraud or colorable exercise of power.
Exclusion of Jurisdiction of Superior Courts
The jurisdiction conferred by the Constitution can be taken away only by amending the
Constitution and not by statutory enactments.
In Kilhota Hollohon v Zachilhu424, it has been held that even a provision in the Constitution
conferring finality to the decision of an authority is not construed as completely excluding
judicial review under Art 136, 226 and 227 of the Constitution but limiting it to jurisdictional
errors viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance
with rules of natural justice and perversity.
422
Lilavati Bai v Bombay State, AIR 1957 SC 521.
423
AIR 1962 SC 1052.
424
AIR 1993 SC 412.
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It was held in Raj Krushna Bose v Vinod Kanungo425, that if the Legislature states that the
decision or order of a court or tribunal shall be final and conclusive, the remedies available under
the Constitution remain unfettered.
The High Courts of India apart from exercising supervisory powers under the Constitution,
exercise a similar power u/S 115 of CPC, 1908, over all subordinate courts. This power of
revision u/S 115, which can be excluded by legislative enactments, is construed as not readily
excluded except by express provision to that effect.
425
AIR 1954 SC 202.
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Construction of Taxing statutes and evasion of statutes
I. Strict Construction of Taxing Statutes

a. Taxing Statutes
b. General Principle of Strict Construction
c. Illustrations
d. Qualifications of Rule of Strict Construction
II. Evasion of Statutes
Strict Construction of Taxing Statutes
Taxing Statutes
A tax is imposed for raising general revenue of the State for public purposes. In contrast to tax, a
fee is imposed for rendering services and bears a broad co-relationship with the services
rendered.
Taxes are distributed between the Union and States by various entries in List I and List II of the
Constitution. Parliament can under its residuary power in entry 97 of List I levy a tax not
mentioned in these lists.
A taxing statute means a statute or an Act making compulsory imposition whether of tax or fee.
There are following three stages in the imposition of tax:
i. Declaration of liability in respect of persons or property;

ii. Assessment of tax that qualifies the sum which the person liable has to pay;
iii. Methods of recovery if the person taxed does not voluntarily pay.
General Principle of Strict Construction
A taxing statute is to be strictly construed426.
If the person sough to be taxed comes within the letter of the law, he must be taxed, however
great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking
to recover the tax, cannot bring the subject within the letter of the law, the subject is free,
however apparently within the spirit of law the case might otherwise appear to be. If there be
admissible in any statute, what is called an equitable construction, certainly, such a construction
is not admissible in a taxing statute where you can simply adhere to the words of the statute427.
426
Hansraj & Sons v State of J & K, AIR 2002 SC 2692.
427
Partington v AG (1869) LR 4 HL 100.
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There is nothing like implied power to tax. The source of power which does not specifically
speak of taxation cannot be interpreted by expanding its width as to include therein the power to
tax by implication or by necessary inference.
The judicial opinion of binding authority flowing from several pronouncements of the
Supreme Court has settled following principles –
• In interpreting a taxing statute, equitable considerations are entirely out of place. Taxing
statutes cannot be interpreted on any presumption or assumption. A taxing statute has to
be interpreted in the light of what is clearly expressed. It cannot import provisions in the
statute so as to supply any deficiency. It cannot imply anything which is not expressed.
• 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, and
• If the words are ambiguous and open to two interpretations, the benefit of interpretation
is to be given to the subject.
In State of WB v Kesoram Industries428, it has been held that there is nothing unjust in the tax
payer escaping if the letter of the law fails to catch him on account of the legislature’s failure to
express itself clearly.
TCS v State of AP429, it has been held that although normally a taxing statute is to be strictly
construed but when the statutory provision is reasonably akin to only one meaning, principle of
strict construction may not be adhered to.
Another important principle pertinent here is that of avoidance of double taxation by the same
Act. The principle is that if the words of the Act on one construction result in double taxation of
the same income, that result will be avoided by adopting another construction which may
reasonably be open. On the basis of this general rule it is said that several heads of income
mentioned in the Income tax laws are mutually exclusive and a particular income can come
under only one of the heads.
Another important principle relating to the Income tax Act is that the charging section and the
computation provisions together constitute an integrated code. It has been held that when there
is a case to which the computation provisions cannot apply at, it can be concluded that such a
case was not intended to be brought within the charging section430.
The Court Fees Act is also strictly construed. If the fee is heavy, the Act may seriously restrict
the rights of a person to seek his remedies in a court of justice and as access to justice is the basis
428
(2004) 10 SCC 201.
429
(2005) 1 SCC 308.
430
CIT v BC Srinivasa Setty, AIR 1981 SC 972.
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of the legal system, in a case where there is reasonable doubt, the benefit of construction must go
to him who says that the lesser court fee alone be paid431.
Illustrations
In CIT v Karamchand Premchand Ltd.432, the assessee carried on business both within and
outside taxable territories in India. When he sustained losses in business which was carried on
outside taxable territories he contended that those losses should be set off against profits in
taxable territories for computation of his taxable income. Third proviso to S 5 of the Business
Profit Tax, 1947 provided that the Act was not to apply to any income, profits or gains of
business accruing or arising within any part of India to which the Act did not extend, unless such
income, profits or gains were received in or brought into the taxable territories. This section was
construed by the Supreme Court and the court felt that the matter was not free from difficulty
and gave the benefit of construction to the assessee by holding that the language of the proviso
did not exclude the outside business from consideration but only exempted the income thereof,
unless received or deemed to be received in taxable territories.
In Philip John Plasket Thomas v CIT433, S 16 (3) (a) (iii) of the Income tax Act, 1922 which
provided for inclusion in computing the total income of the husband, so much of the income of a
wife as arises ‘from assets transferred directly or indirectly to the wife by the husband otherwise
than for adequate consideration’ was construed. It was held that for the application of the above
provision the relationship of wife and husband must exist at the time when income accrued to the
wife and also at the time when the transfer of assets was made. Income accruing to a wife from
assets transferred to her prior to the marriage could not be taken into account for computing the
total income of the husband even in respect of any period after the marriage.
In Atlas Cycles Industries Ltd. v Haryana State434, a provision extending to newly included
areas in a municipality ‘rules, bye-laws, orders, directions and powers’ was held not to cover a
‘notification’ imposing a tax on the principle that a taxing provision has to be strictly construed.
In State of Maharashtra v Mishrilal435, Art 1, Schedule 1 of the Bombay Court Fees Act, 1959
was construed by the Supreme Court and it was held that the words ‘value of subject matter in
dispute in appeal’ on which an appellant is required to pay court fee in appeal did not include the
amount of interest pendent lite awarded by the decree under appeal.
Applying the well settled principle of statutory interpretation of a taxing statute that a subject
will be liable to tax and will be entitled to exemption from tax according to the strict language of
the taxing statute, the Supreme Court, in the case of Topman Exports v Commissioner of
431
Lakshmi Ammal v Madhav Krishnan, AIR 1978 SC 1607.
432
AIR 1960 SC 1175.
433
AIR 1964 SC 587.
434
AIR 1972 SC 121.
435
AIR 1964 SC 457.
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Income Tax, Mumbai436, held that if, as per the words used in Explanation (baa) to S 80HHC
r/w the words used in clauses (iii-d) and (iii-e) of S 28 of Income Tax Act, 1961, the assessee
was entitled to deduction u/S 80HHC on export profits, the benefit of such deduction cannot be
denied to the assessee.
Qualifications of Rule of Strict Construction
When the statutory provision is reasonably open to only one meaning, no question of strict
construction of a taxing statute arises. Strict construction of a taxing statute does not mean that
where the subject falls clearly within the letter of law, the court can avoid the tax by putting a
restricted construction on the basis of some supposed hardship or on the ground that the tax or
penalty imposed is heavy or oppressive. Where two views are possible, the one in favor of the
assessee must be adopted437. The interpretation favoring the assessee which has been acted upon
and accepted by Revenue for a long period should not be disturbed except for compelling
reasons438.
When the intention to tax is clear, it cannot be defeated by a mere defect in phraseology on the
ground that the provision could have been more artistically drafted.
Where the literal interpretation leads to absurd or unintended results, the language of the statute
can be modified to accord with the legislative intention and to avoid absurdity also applies in
interpreting a taxing statute.
The object of the legislature has to be kept in view and a construction consistent with it has to be
placed on the words used if there is ambiguity, is also applicable in construing a taxing
statement.
A taxing statute must be construed reasonably and receive purposive construction so as to give
effect to purport and object they seek to achieve. The Interest Tax Act is a taxing statute. It has
been held that the Act must receive purposive construction and the Union of India cannot direct
or permit the bankers or the financial institutions to raise interest439.
Consideration of public policy is also held to be relevant in interpreting and applying a taxing
statute. It has been held that payments tainted with illegality cannot be treated as money wholly
and exclusively spent for the purpose of business for being allowed as a deduction in
computation of profits of the business for taxation purposes under the Income Tax Act440.
It has been held that although equity and taxation are quite strangers but a construction which
results in equity rather than in injustice, should be preferred to the literal construction.
436
(2012) 3 SCC 593.
437
Union of India v Onkar S Kanwar, (2002) 7 SCC 591.
438
Birla Cement Works v CBDT, AIR 2001 SC 1080.
439
Indian Bank’s Assn. v Devkala Consultancy Service, AIR 2004 SC 2615.
440
M Venkataraman & Co. (P) Ltd. v CIT, AIR 1998 SC 563.
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In interpreting a provision to plug leakage and prevent tax evasion, a construction which would
defeat its purpose should be eschewed and a construction which preserves its workability and
efficacy should be preferred.
A provision of exemption from tax in a fiscal statute is to be strictly construed. It is a well known
principle that a person who claims an exemption has to establish it and the rule of strict
construction does not negative its application. There is ample authority for the view that this
principle applies to exemptions granted in taxing law as well 441 . There are two opinions
regarding construction of exemptions:
i. One view says that an exemption in case of ambiguity should be liberally construed in
favor of the subject confining the operation of the duty;
ii. Second view says that exemptions from taxation have a tendency to increase the
burden on the other members of society and should, therefore, be deprecated and
construed in case of doubt against the subject.
Evasion of Statutes
It is permissible to evade an Act of Parliament in the sense that a person may not do that which
the Act prohibits but he is free to do anything which though equally advantageous to him as that
which is prohibited is nevertheless outside the prohibition, penalty or burden imposed by the
Act442.
If a statute prohibits the doing of A, the courts are powerless to extend the prohibition to cover B
when the legal significance of A and B are different and distinct even if both A and B in
substance produce similar results.
It is not permissible to evade an Act of Parliament by resorting to a fraudulent device or by

covering the reality by a non-genuine transaction, for example, if a person does and Act which is
really A, but covers the reality by giving to it the color B, the courts will go behind the form and
enforce the prohibition.
The word ‘evade’ is ambiguous in nature and may mean either of two things – it may mean an
evasion of the Act by something which, while it evades the Act, is within the sense of it or it may
mean an evading of the Act by doing something to which the Act does not apply.
The word ‘evade’ is also capable of being used in two sense – one suggests under-hand dealing
and another means nothing more than the intentional avoidance of something disagreeable.
441
CIT v Ram Krishna Deo, AIR 1959 SC 239.
442
Yorkshire Rly. Wagon Co. v Maclure, (1882) 21 Ch. D 309.
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A person is free to arrange his business in such a way so that he is able to avoid a law and its evil
consequence so long as he does not break that or any other law443.
In McDowell & Co. Ltd. v Commercial Tax Officer444, it was observed that the proper way to
construe a taxing statute, while considering a device to avoid tax, is not to ask whether the
provisions should be construed literally or liberally, nor whether the transaction is no unreal and
not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the
transaction is such that the judicial process may accord its approval to it. It is neither fair nor
desirable to expect the legislature to intervene and take care of every device and scheme to avoid
taxation. It is up to the court to take stock to determine the nature of the new and sophisticated
legal device to avoid tax and consider whether the situations created by the devices could be
related to the existing legislation with the aid of emerging techniques of interpretation.
In Juggi Lal v CIT 445 , a transaction by which compensation was paid for termination of
managing agreement to a partnership firm when simultaneously substantially the same partners
in the shape of a private company became the managing agents, was held to be a sham and stage-
managed and the amount of compensation was taxed as income.
In Union of India v VD Dwivedi446, it has been held that the bar for any further employment
under the Govt., which applies to the member of the Public Service Commission after he demits
his office, under Art 319 (1) (e) of the Constitution cannot be evaded by labeling the
employment as ‘full-time non official consultant’ and by giving a contract in place of a letter of
employment.
In Shanti Prasad v Director of Enforcement447, it was held that when alternative constructions
are open, a statute should be so construed as to give effect to its object or policy the courts to the
extent the language permits will be slow to adopt such a construction which may lead to large
scale evasion of the Act resulting in its object being defeated. On this principle it was held that
the words ‘resident of India’ occurring in S 4 (1) of the FERA, 1947 were used in the sense
‘resident of India’. By holding otherwise the Act would have become inapplicable to acts done
outside India by residents of India resulting in large-scale evasion of the Act and a virtual
nullification of its object.
443
Ghatge and Patil Concern’s Employees’ Union v Ghatge and Patil Trasnporters, AIR 1968 Sc 503.
444
(1985) 3 SCC 230.
445
AIR 1969 SC 932.
446
AIR 1997 SC 1313.
447
AIR 1962 SC 1764.
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Construction of Remedial and Penal statutes
I. Distinction between Remedial and Penal Statutes

II. Liberal Construction of Remedial Statutes
b. Illustrative cases
III. Strict Construction of Penal Statutes
IV. MENS REA in Statutory Offences
V. Vicarious Liability in Statutory offences
Distinction between Remedial and Penal Statutes
Remedial Statutes Penal Statutes

Known as welfare, beneficent or social justice Provided for penalties for disobedience of the
oriented legislation. law and are directed against the offender in
Actuated with some policy, with beneficial relation to the State by making him liable to
object, directed to cure certain immediate imprisonment, fine, forfeiture or other penalty.
mischief, bring in social reform by
ameliorating the condition of certain class of
persons who according to present day notions
may not have been fairly treated in the past.
Such legislations prohibit certain acts by
declaring them invalid and provide for redress
or compensation to the persons aggrieved.
Receives liberal construction in favor of the Receives a strict construction. The doubt is
class of persons for whose benefit the statute resolved in favor of the alleged offender.
was enacted.
E.g. Welfare Legislations like Factories Act E.g. Indian Penal Code
A statute may in certain aspects be a penal enactment and in certain others a remedial one. In
respect of those provisions which are sanctioned on the pain of punishment for a crime the rule
of strict construction in the limited sense may be applied. At any rate, as undue effort to construe
such a provision liberally to promote the beneficent purpose behind it may be effectively counter
balanced on consideration that a breach thereof leads to penal consequences448.
448
Buckingham & Carnatic Co. v Venkatiah, AIR 1964 SC 1272.
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Liberal Construction of Remedial Statutes
On construing a remedial the courts ought to give to it ‘the widest operation which its
language will permit. They have only to see that the particular case is within the mischief to
be remedied and falls within the language of the enactment.
The labor and welfare legislations should be broadly and liberally construed and while
construing them due regard to the Directive Principle of State Policy (Part IV) of the
Constitution and to any international convention on the subject must be given by the courts.
If a section of a remedial statute is capable of two constructions, the one which furthers the
policy of the Act and is more beneficial to those in whose interest the Act may have been
passed should be preferred.
The liberal construction must flow from the language used and the rule does not permit
placing of an unnatural interpretation on the words contained in the enactment nor does it
permit the raising of any presumption that protection of widest amplitude must be deemed to
have been conferred upon those for whose benefit the legislation may have been enacted.
In case there is any exception in the beneficent legislation which curtails its operation, the
Court in case of doubt should construe it narrowly so as not to unduly expand the area or
scope of exception.
A beneficial legislation, as is well known, should not be construed in such a manner as to

bring within its ambit a benefit which was not contemplated by the legislature.
In Sadhoo v Haji Lal Mohd. Biri Works449, the SC interpreted S 31 (2) (a) of the Beedi and
Cigar Workers (Conditions of Employment) Act, 1966. This S 31 (2) (a) provides that the
employees discharged, dismissed or retrenched may appeal to the prescribed authority. It was
held that by the liberal construction of the section there need to be no written order of
termination to enable the employee to appeal and that an employee who was terminated by
stopping him to enter the place of work could appeal to the prescribed authority.
449
(1986) 1 SCC 32.
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In Central Railway Workshop, Jhansi v Vishwanath450, the question before the Court was
whether time-keepers, who prepared pay sheet of the workshop staff, maintain leave account,
dispose of settlement case and maintain records for other statistical purposes, were workers
as defined in the Factories Act, 1948. The Factories Act u/S 2 defined a worker ‘as a person
employed directly or through any agency, whether for wages or not in any manufacturing
process or in cleaning any part of the machinery or premises used for a manufacturing
process or any other kind of work incidental to or connected with the manufacturing process.
The Court liberally construed the definition of worker and held the time-keepers were
workers being employees in a kind of work incidental to or connected with the
manufacturing process.
In Bhagirath v Delhi Administration451, the SC held that the beneficent provisions of S 428,
Cr.PC directing set-off of the period of pre-conviction detention against the ‘term’ of
imprisonment is applicable even to cases where the sentence is imprisonment for life and that
such a sentence is also imprisonment ‘for a term’ within the section.
In Motor Owner’s Insurance Co. Ltd. v JK Modi452, the words ‘any one accident’ occurring
in S 95 (2) (a) of the MV Act, 1939, was construed. Having regard to the beneficial purpose
of the Act, the words were construed to signify as many accidents as the number of persons
involved in the accident to enable the limit of Rs. 20,000/- payable by the insurance company
to apply to each person injured.
In Buckingham and Carnatic Co. v Venkatiah453, the SC construed the words of the S 73 of
ESIC Act, 1948 wherein it states – ‘no employer shall dismiss, discharge, or reduce or
otherwise punish an employee during the period the employee is in receipt to sickness benefit
etc.’, limited the prohibition of punitive action the period during which the employee was ill
and that the prohibition so imposed was further limited to such dismissal, discharge etc.,
which was the result of a decision of the employer embodies in an order passed by him and
did not include within its fold automatic termination of employee’s services resulting from a
contract or from a Standing order by virtue of the employee’s absence without leave for the
specified period. Rejecting the argument in support of the extension of the prohibition so as
to include even such termination of services, it was observed ‘The liberal construction must
ultimately flow from the words used in the section. if the words used in the section are
capable of two constructions one of which is shown patently to assist the achievement of the
object of the Act, courts would be justified in preferring that construction to the other which
may not be able to further the object of the Act. But, on the other hand, if the words in the
450
AIR 1970 SC 488.
451
AIR 1985 SC 1050.
452
AIR 1981 SC 2059.
453
AIR 1964 SC 1271.
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section are reasonably capable of only one construction, the doctrine of liberal construction
can be of no assistance’.
In MP Mineral Industry Association v Regional Labour Commissioner454, while dealing with

entry 8 in the Schedule to the Minimum Wages Act, 1948, which reads – ‘Employment in stone-
breaking or stone-crushing’ – the Supreme Court held that the entry was confined to stone
breaking and stone crushing employment in stone quarries and that it did not include the
breaking or crushing of stones incidental to mining operations. The plea for an extended meaning
of the entry based on the rule of liberal construction failed, as in view of the court the alternative
construction was not reasonably open.
In Magilal v Suganchand455, S 4 (a) of MP Accommodation Control Act, 1955 was construed

wherein the Section restricted the right of a landlord to file a suit only on certain specified
grounds, one of which was ‘that the tenant has failed to make payment to the landlord of any
arrears of rend within one month of the service upon him of a written notice of demand’. In this
case the tenant failed to pay the arrears within one month of the demand but did pay the same
before the filing of the suit for an ejectment. It was held by the Supreme Court that the condition
of a suit u/S 4 (a) was satisfied and that said clause did not require that the non-payment should
continue till the date of the suit. The Court pointed out that thought the Legislature intended to
give protection to defaulting tenant it cannot follow from this tat it must be deemed to have given
the protection of widest amplitude and no such assumption can be made to support an unnatural
construction of the words used.
454
AIR 1960 SC 1068.
455
AIR 1965 SC 101.
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Strict Construction of Penal Statutes
The principle that a statute enacting an offence or imposing a penalty is to be strictly

construed is not of universal application which must necessarily be observed in every case. It
is now only of limited application and it serves in the selection of one when two or more
constructions are reasonably open. The rule was originally evolved to mitigate the rigor of
monstrous sentences for trivial offense and although that necessity and that strictness has
now almost vanished, the difference in approach made to a penal statute as against any other
statute still persists.
The settled rule of construction penal sections is that ‘if there is a reasonable interpretation
which will avoid the penalty in any particular case we must adopt that construction. If there
are two reasonable constructions we must give the more lenient one.’
If two possible and reasonable constructions can be put upon a penal provision, the Court
must lean towards the construction which exempts the subject from penalty rather than the
one which imposes penalty. It is not competent to the Court to stretch the meaning of an
expression used by the Legislature in order to carry out the intention of the Legislature.
Interpretation of penal provisions must be in consonance with the principles of underlying

fundamental rights. Any provision which visits an accused with adverse consequences
without affording him any remedy to disprove an item of evidence which stands against his
innocence, is inconsistent with the philosophy enshrined in Art 21. It was held by the
Supreme Court the court should so interpret such a provision as to dilute it to make it
amendable to Art 21 of the Constitution.
Such a drastic penal statutes as deal with crimes of aggravated nature which could not
effectively be controlled by the ordinary criminal law should be more strictly construed.
When words employed in a penal statute are not clear the principle ‘against double
penalization’ would be applied. Failure to comply with a statute may attract penalty. But only
because a statute attracts penalty for failure to comply with the statutory provisions, the same
in all situations would not call for a strict construction.
In applying and interpreting a penal statute, public policy is also taken into consideration.
And the rule of construction does not prevent the Court in interpreting a statute according to
its current meaning and applying the language to cover developments in science and
technology not known at the time of passing of the statute.
The following are some of the propositions important in relation to strict construction of
penal statutes:-
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➢ If the prohibitory words in their know signification cover only some class of persons or
some well defined activity, their import cannot be extended to cover other persons or
other activity on considerations of policy or object of the statute.
➢ If the prohibitory words are reasonably capable of having a wider as also a narrower
meaning and if there is no indication in the statute or in its policy or object that the words
were used in the wider sense, they would be given the narrower meaning. Where, on the
other hand, after full consideration it is found that the prohibitory words are equally open
to two constructions, one of which covers the subject and the other does not, the benefit
of construction will be given to the subject.
➢ If the prohibitory words in their own signification bear a wider meaning which also fits in
with the object or policy of the statute, the words will receive that wider meaning and
their import will not be restricted even if in some other context they can bear a narrower
meaning.
➢ If the literal reading of the prohibitory words produces an unintelligible or non-sensual or
socially harmful result, but the statute read as a whole gives out its meaning clearly,
effect will be given to that meaning by curing a mere defect in phraseology and even by
rejecting words as surplasage.
A provision cannot be presumed to include something on mere likelihood of evasion of that

provision.
In Tolaram v State of Bombay456, S 18 of the Bombay Rents, Hotels and Lodging Houses
Rates (Control) Act, 1947 was construed. This section provided that ‘if any landlord received
any fine, premium or other like sum or deposit or any consideration other than the standard
rent in respect of the grant, renewal or continuance of a lease of any premises, such landlord
shall be punished’. It was held by the Supreme Court that the section envisaged the existence
of a lease and the payment in respect thereof, and did not prohibit the taking of money by
owner of an incomplete building in consideration of binding himself by an oral agreement to
grant a lease on completion of the building to the person from whom the money was taken.
In London and North Eastern Railway v Berriman 457 - the Railway Employment
(Prevention of Accident) Act, 1900, gave power to the Board of Trade to make rules ‘with
the object of reducing or removing the dangers and risks incidental to railway services’ on
certain subjects one of them being ‘Protection to Permanent Way-men, when relaying or
repairing permanent way’; and provided that a railway company acting in contravention of
the rules would be liable to a fine not exceeding £50 for each offence on conviction. One of
the rules framed under the Act required the railway companies to provide the persons or
456
AIR 1954 SC 496.
457
(1946) 1 All ER 255.
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apparatus for giving warning of approaching train to workmen engaged in ‘relaying or

repairing the permanent way’. The question was whether a railway company was guilty of a
breach of the statutory duty in not providing look-out precautions when some workmen, who
were engaged in only ‘cleaning’ and ‘oiling’ an apparatus between the running lines were
knocked down and killed by an oncoming train. The House of Lords held that ‘cleaning and
oiling’ was not embraced within the word ‘repairing’ and that there was no breach of
statutory duty on the part of Railway Company.
In Shanti Prasad Jain v Director of Enforcement458 - S 4 (1) of FERA, 1947 provided that
subject to certain conditions, no person resident in India shall outside India buy or borrow
from, or sell or lend to or exchange with, any person any foreign exchange’. In settlement of
certain contracts with a person resident in India certain German Firms paid foreign currency
to the account of an Indian in a bank in Germany on conditions that the account could only
be operated for paying to those German Firms the price of new machinery to be purchased
from them by the Indian, after obtaining import license from the Indian Govt. It was held by
the Supreme Court that the deposit being a contingent deposit there was no present debt and
no relationship of creditor and debtor between the Indian and the German Bank and that the
bank held the money as a sort of stake-holder and, therefore, the transaction did not amount
to lending of foreign exchange prohibited under the Act.
In M N Nambiar v State of Kerala459, Supreme Court construed s 5 (1) (d) of the Prevention
of Corruption Act, 1947. This Section provided that ‘a public servant is said to commit the
offence of criminal misconduct in the discharge of his duty, if he, by corrupt or illegal means
or by otherwise abusing his position as a public servant, obtains for himself or for any other
person any valuable things or pecuniary advantage’. It was contended that construing the
sub-section strictly clause (d) did not cover the case of a benefit which was not derived from
a third person but was derived by causing loss to the Govt. by abuse of power. The Supreme
Court negative the contention on the ground that comprehensive language used in the clause
covered such a benefit and that the wide meaning of the language could not be limited by
construction as it well accorded with the spirit of the statute.
In Chitan J Vaswani v State of WB460, S 18 of the Suppression of Immoral Traffic Act, 1956
was construed. S 18 (1) authorized a magistrate to direct eviction of an ‘occupier of premises
within a distance of two hundred yards of any public place if after notice and hearing the
person concerned the magistrate is satisfied that the premises are used as a brother or for
carrying on prostitution’. Ss 2 of the same section empowered a Court convicting a person of
any offence u/S 3 or 7 to pass orders u/Ss (1) without further notice to such person to show
cause as required in that Ss. It was held that Ss (2) was not limited to premises within two
458
AIR 1962 SC 1764.
459
AIR 1963 SC 1116.
460
AIR 1975 SC 2473.
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hundred yards of any public place and it enabled making of an order of eviction of the nature
mentioned in Ss (1) in respect of all premises in respect of which conviction was recorded
u/S 3 and 7.
In Municipal Corporation of Delhi v Laxmi Narain Tandon461, definition of ‘Sale’ in the

Prevention of Food Adulteration Act, 1954 was construed in a sense having regard to the
mischief intended to be remedied. It was held that the ‘sale’ in the Act would include all
commercial transactions where under an adulterated article of food was supplied for
consumption by one person to another person. Therefore, supply or offer of food by an
hotelier to a customer when a consolidated charge was made for residence and other
amenities including food fell within the definition of sale.
In J K (Bombay) Ltd. v Bharti Matha Mishra462, it was held that the expression ‘officer or
employee of a company’ applies not only to the existing officer or employee under
Companies Act, 1956 but also includes past officers or employees where such an officer or
employee either
• Wrongfully obtains possession of any property, or

• Wrongfully withholds the same after the termination of his employment.
The expression would also include the ‘legal heirs or representative’. It was held by the court
that the penal statutes should not be so liberally construed with the aid of presumptions,
assumptions and implications as to rope in for the purposes of prosecution such persons
against whom the prosecution is not intended by the statute and initiation of prosecution
would be in violation of Art 21 of the Constitution and against public policy.
461
AIR 1976 SC 621/
462
AIR 2001 SC 649.
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MENS REA in Statutory Offences
The principle related to MENS REA is expressed in the maxim ‘ACTUS NON FACIT REUM
NISI MENS SIT REA’ which means that the existence of a guilty intent is an essential
ingredient of a crime at common law.
MENS REA is the state of mind stigmatized as wrongful by the criminal law which when
compounded with the relevant prohibited conduct constitutes a particular crime. Crimes
involving MENS REA are of two types:
• Crimes of basic intent, and

• Crimes of specific intent.
In crimes of basic intent, the MENS REA does not go beyond the ACTUS REUS. While in
crimes of specific intent, MENS REA goes beyond the contemplation of the prohibited act
and foresight of its consequences and has a purposive element.
Ignorance of law is no defense in criminal law but if the law is not published in any manner
whatsoever, to enable a person to find it out by appropriate inquiry, the absence of
knowledge of prohibition may afford a defense of absence of MENS REA.
The offences created by statutes either involve the existence of MENS REA as an essential
element of the offence or the statute dispenses with the MENS REA and creates strict liability
for the offences. Therefore, when the offence is committed the question arises as to the type
of offence, which can be answered on the true construction of the statute. There is a
presumption that MENS REA, an evil intention, or knowledge of the wrongfulness of the act,
is an essential ingredient of every offence, but that presumption is liable to be displaced
either by the words of the statue creating the offence of by the subject matter with which it
deals and both must be considered.
In Sherras v De Rut Zen463, J. WRIGHT found that there are three classes of cases where the
Legislation normally enacts absolute prohibition:
• First is a class of acts which are not criminal in any real sense but are acts which are
prohibited in public interest under a penalty, and instances of this class are found in
the Revenue Statutes, Adulteration Acts, Game Acts, etc.;
• Second class comprehends some and perhaps all public nuisances;
• Third class of cases are those where, although the proceeding may be criminal in
form, they are really only a summary mode of enforcing a civil right.
463
(1895) 1 QB 918.
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Those offences in respect of which MENS REA is not required to be established are usually
of a minor character and sentences passed for them are not of a severe type.
The principle that MENS REA is presumed to be necessary gives rise to another principle that
the courts should be slow to impute to Parliament so harsh an intention as to impose criminal
liability on a citizen acting lawfully because another citizen, over whom he has no control,
acts unlawfully.
In applying the rule of construction, it should be enquired that whether putting the defendant
under strict liability will assist in the enforcement of the statute or not. Where it can be
shown that the imposition of strict liability would result in prosecution and conviction of a
class of persons whose conduct could not in any way affect the observance of law, even
where the statute is dealing with a grave social evil, strict liability is not likely to be intended.
If the statute deals with a grave social evil and a construction consistent with the existence of
MENS REA as a necessary ingredient of the offence would largely frustrate the effective
enforcement and the purpose of the statute, it may be inferred that the legislature intended to
provide for strict liability.
In Sherras v De Rut Zen464, S 16 of the Licensing Act, 1872 was construed. The Section
provided that ‘if any licensed person –
a. Knowingly harbors or knowingly suffers to remain on his premises any constable during
any part of the time… such constable being on duty, or
b. Supplies any liquor or refreshment whether by way of gift or sale to any constable, he
shall be liable to a penalty’;
A licensee of a public house supplied liquor to a constable while he was on duty. However, it
was proved that the constable had removed his armlet indicating that he was off duty and the
licensee served him in the bona fide belief that it was the case. It was held that the licensee
had no intention of doing a wrongful act and, therefore, was not guilty. Although the word
‘knowingly’ appeared Ss (1) and omitted in Ss (2) but its omission is Ss (2) was held as not
excluding MENS REA as a consistent part of the crime u/Ss (2).
In Lim Chin Aik v Reginam465, the appellant was charged for having ‘contravened’ S 6 (2)
of the immigration Ordinance, 1959, (Singapore) by ‘remaining in Singapore’ when he had
been ‘prohibited’ by an order made by the Ministry containing such prohibition. The Privy
Council allowed the appeal and laid down that before the appellant could be said to have
contravened an order of prohibition, it should be shown that he was aware of it and that the
464
Supra.
465
(1963) 1 All ER 223.
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presumption of existence of MENS REA was not displaced in that case merely on the ground
that the ordinance dealt with a social evil of immigration or that the relevant sections did not
contain the word ‘knowingly’ or the phrase ‘without reasonable cause’ which occurred in
other sections of the same ordinance.
In Kalpanath Rai v State466, the Supreme Court considered S 3 (4) of the TADA Act, 1987
which provided that ‘whosoever harbors any terrorist shall be punishable with imprisonment
which shall not be less than five years but which may extend to imprisonment for life. It was
held by the Court that the section provided for harsh punishment and could not be held to
have excluded MENS REA and a person giving shelter to a terrorist without knowing that he
was a terrorist could not be punished under the section.
In Nathulal v State of MP467, a dealer in food grains was prosecuted u/S7 of the Essential
Commodities Act for contravening the MP Grain Dealers Licensing Order, 1958, for carrying
on business in food grains without a license. It was found that the accused had applied for a
license and he was under the impression that the license was issued to him and that order of
rejection of his application was not communicated to him and that he went on sending the
returns on the footing that he was a licensee to the authority concerned. The Supreme Court
acquitted the accused and held that the Act which imposed heavy penalties could not be
construed to dispense with MENS REA as the object of the Act could not be defeated on such
a construction.
In Sarjoo Prasad v State of UP 468 , it was held that any person, whether employer or
employee contravening the provisions of S 7 of the Food Adulteration Act, 1954 is liable to
punishment u/S 16 and it was not necessary for the prosecution to establish that the person
concern has guilty knowledge or intention or that he knew that the article was adulterated.
In R S Joshi v Ajit Mills469, a provision in a Sales Tax Act prohibited collection of any sum
by way of tax which was not payable as tax or which was in excess of tax payable and
contravention of this prohibition was made punishable offence and the person contravening
was also made liable to forfeit the sum collected in contravention of the prohibition. It was
held by the Supreme Court that the principle ‘No MENS REA no crime’ had no application to
economic offences. It was also held that the word ‘collected’ did not include amounts
gathered tentatively to be given back if found non-eligible and ‘shall be forfeited’ meant
‘shall be liable to be forfeited’ leaving a discretion to the authorities not to forfeit the sums
returned to persons from whom they were collected.
466
AIR 1998 SC 201.
467
AIR 1966 SC 43.
468
AIR 1961 SC 631.
469
AIR 1977 SC 2279.
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Vicarious Liability in Statutory offences
The maxims ‘RESPONDENT SUPERIOR’ and QUI FACIT PER ALIUM FACIT PER SE’ have
no place in the criminal law. the general rule of criminal law is that criminal liability in a master
that might result either as a principle or an accessory, springs from authorization and not simply
from the relationship of master and servant. However, the Legislature may in an infinite variety
of ways provide that there is to be criminal liability in one who has personally no MENS REA or
in one who has not committed ACTUS REUS.
In State of Gujarat v Kansara Maniram Bhikalal470, it was held by the Supreme Court that for
an offence u/S 92 of the Factories Act, MENS REA need not always be established and the
manager or occupier of a factory can only escape liability for a contravention of the Act which is
punishable u/S 92, if he is able to bring the real offender to book in the manner provided in S101.
In Srinivasa Mall v Emperor471, the question was related to master’s liability for the act of his
servant in committing a contravention of a Price Control Order made under Rule 81 (2) (b) of the
Defense of India Rules. The High Court concluded that guilty intent of the master was dispensed
with for the offence u/R 81 (4) which made any person contravening the provision of the Rule
liable to punishment with imprisonment which could extend to three years. However, the Privy
Council did not accept this conclusion.
470
AIR 1964 SC 1893.
471
AIR 1947 PC 135.
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Principles of Legislation
I. The Science of Legislation

II. The Doctrine of Utility
III. Pleasures and Pains
IV. The Ascetic Principle
V. The Principle of Sympathy & Antipathy
VI. Circumstances Affecting Sensibility
VII. Choice of Evils
VIII. Certain acts treated as Offences
IX. Role of Morals in Legislation
X. Natural Law & Natural Rights
XI. The Civil Code
XII. Rights & Obligations
XIII. Ends of Civil Law
XIV. Hedonistic Calculus
XV. Application of Bentham Principles
Jeremy Bentham (1747-1834) one of the greatest legal reformer in England, contributed to the
sociology of law. Bentham’s work in ‘The Theory of Legislation and Introduction to the
Principles of Morals and Legislation’ together gives the legal philosophy on ‘Utilitarianism’
which is the most valuable contribution to the field of Legislation in England. He laid down a
distinction between ‘three principal social control mechanism namely, law, religion and
education’. His principle of ‘Utilitarianism’ emphasizes the ‘objects of government and of laws
in bringing the greatest happiness of the greatest number in a community’. Law is deemed to be
an instrument of social stability, emphasizing upon the social facts like pleasures, pains, motives,
sensibilities, dispositions and expectations; it should eliminate, exclude and prevent false
methods on the subject of legislations, coercions, and must be just and meet the ends of justice.
Without law there is no security and without security the values of subsistence, abundance and
equality cannot at all be pursued, hence law inspires in spite of its imperfections.
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An Introduction to the Principles of Morals and Legislation
Jeremy Bentham’s An Introduction to the Principles of Morals and Legislation (1789) is a

presentation of an ethical theory that actions are right insofar as they produce pleasure or prevent
pain, and is an explanation of a political theory that the purpose of civil or criminal laws is to
maximize the amount of pleasure or happiness which may be enjoyed by society. Bentham
argues that if utility is defined as the ability to produce happiness, then the rightness of an action
is determined by its utility. Bentham also argues that if happiness is viewed as the only thing
which is intrinsically good, then the principle of utility is the only right principle of human
action.
Bentham advocates a doctrine of psychological hedonism, that all human actions are motivated
by the desire to enjoy pleasure or prevent pain, and that the enjoyment of pleasure or the
avoidance of pain is the only rational aim of human action. He also advocates a doctrine of
ethical hedonism, that the rightness or wrongness of an action is determined by whether the
action tends to promote happiness or unhappiness. If an action conforms to the principle of utility
(i.e. if the action tends to promote happiness or prevent unhappiness), then the action is morally
right, or at least is not morally wrong. If an action does not conform to the principle of utility
(i.e. if the action tends to prevent happiness or promote unhappiness), then the action is morally
wrong, or at least is not morally right.
Bentham maintains that the principle of utility is the only sufficient ground for deciding whether
an action is morally right or wrong. The principle of sympathy and antipathy (i.e. the feeling of
instinctive approval or disapproval for the expected consequences of an action) is not a sufficient
ground for judging the moral rightness or wrongness of an action. According to Bentham, the
principle of sympathy and antipathy is merely a disposition to approve or disapprove of an action
and is not an affirmative principle of moral conduct.
Bentham argues that the principle of utility is a morally right principle of action for every
situation. He says that the principle of utility may also be described as the greatest happiness
principle, in that it asserts that the only morally right and proper goal of action is to achieve the
greatest happiness of all individuals whose interest is affected by the action.
Bentham rejects the notion that the law of reason is a sufficient principle of morality. For
Bentham, such concepts as common sense, the rule of right, the law of reason, and the law of
nature are only theoretical or speculative principles and cannot be practically applied to every
moral situation.
Bentham describes a quantitative method (or hedonistic calculus) by which the moral rightness
or wrongness of an action may be calculated according to the amount of pleasure or pain which
is produced by the action. Bentham explains that the quantity of a pleasure or pain may depend
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on the intensity, duration, certainty or uncertainty, propinquity, fecundity, and purity of the
pleasure or pain. The fecundity of a pleasure or pain may be determined by the likelihood that
the pleasure or pain will be followed by pleasures or pains of the same kind. The purity of a
pleasure or pain may be determined by the likelihood that the pleasure or pain will not be
followed by pleasures or pains of the opposite kind.
According to Bentham, actions which are morally right tend to produce the greatest possible
amount of pleasure and the least possible amount of pain, while actions which are morally wrong
tend to produce either a lesser amount of pleasure or a greater amount of pain than other actions
which could be performed. The total amount of pleasure or pain which is produced by an action
may depend on the total amount of pleasure or pain which is experienced by all individuals
whose interest is affected by the action.
Bentham provides a classification of the various kinds of pleasures and pains. Pleasures and
pains may be caused by various kinds of sensations, thoughts, emotions, memories, expectations,
and associations. Simple pleasures and pains may be combined to form complex pleasures and
pains. Pleasure may also be caused by the relief of pain, and pain may be caused by the cessation
of pleasure. Pleasure may be caused by the satisfaction of desire, and pain may be caused by the
frustration of desire.
Bentham explains that the sensitivity to pleasure or pain may vary among individuals, and that
each individual may respond differently to the same pleasure or pain. If rewards for good
conduct or punishments for bad conduct are to be administered fairly, then these rewards or
punishments must account for the differences that may occur among individuals in their
sensitivity to pleasure or pain.
Bentham also provides a classification of motives for action. However, many of his arguments
for the theory that motives are morally neutral are not only misdirected but morally repugnant.
For example, he argues that there is no difference between the aim to avoid punishment by
telling the truth and the aim to avoid punishment by telling a lie, because the aim in either case is
to avoid punishment. He argues that there is no difference between the aim to preserve oneself
from danger by helping another person and the aim to preserve oneself from danger by not
helping another person, because the aim in either case is to preserve oneself from danger. He
argues that there is no difference between the aim to gain a person’s favor by being kind to that
person and the aim to gain a person’s favor by being cruel to the enemy of that person, because
the aim in either case is to gain the person’s favor.
According to Bentham, pleasure is intrinsically good, and pain is intrinsically evil. The motives
which individuals may have for their actions are only good or evil if they have good or evil
consequences. Motives may not be intrinsically good or evil, and their consequences may vary
according to each situation and according to each individual’s sensitivity to pleasure or pain.
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Bentham tries to justify the oppression of women by men by arguing that women may be more
sensitive to smaller pleasures and pains and those women may thus have less "firmness of
mind." Bentham also argues unsuccessfully that women are more likely to conform their actions
to the principle of sympathy and antipathy, and that they are less likely to conform their actions
to the principle of utility.
Bentham asserts that if good intentions are produced by a motive, then the motive may be
described as good. If bad intentions are produced by a motive, then the motive may be described
as bad. The goodness or badness of an intention to perform a particular action may depend on the
material consequences of that action. The material consequences of an action are the sensations
of pleasure or pain which are produced by that action. Good actions produce pleasure, while bad
actions produce pain. According to Bentham, motives produce intentions, and the sum of an
individual’s intentions may produce a disposition to perform, or not to perform, a particular
action. Whether or not an individual performs a particular action may depend on his or her
disposition to perform that action and on the particular circumstances which may affect the
expression of that disposition.
Bentham divides motives into two kinds: 1) seducing (or corrupting), and 2) tutelary (or
preservatory). Seducing motives may cause an individual to perform wrongful acts, while
tutelary motives may cause an individual not to perform wrongful acts. Tutelary motives may be
either standing (i.e. constant) or occasional. Standing tutelary motives may govern an
individual’s conduct in most (or all) situations, but occasional tutelary motives may govern an
individual’s conduct in only some situations.
According to Bentham, the weaker the temptation that is required for an individual to perform a
wrongful act, the more that performance of this wrongful act may testify to the corruption of the
individual’s disposition. The stronger the temptation that is required for an individual to perform
a wrongful act, the less that performance of this wrongful act may testify to the corruption of the
individual’s disposition. The wrongfulness of an act may be determined by calculating how
much pain is gained and how much pleasure is lost as a consequence of the act.
Bentham defines ethics as the art of producing the greatest possible amount of happiness for
oneself and for others.4 Ethics is both the art of fulfilling one’s duty to oneself (by exhibiting
prudence) and the art of fulfilling one’s duty to others (by exhibiting probity and beneficence).
While private ethics is concerned with the personal happiness of an individual, public ethics and
the art of legislation are concerned with the happiness of all individuals. If an act of legislation
conforms to the principle of utility, then it tends to increase the total happiness of all individuals.
Bentham enumerates five classes of illegal offenses against society: 1) private offenses against
individuals, 2) semi-public offenses against groups of individuals, 3) self-regarding offenses
against the rights of the individual, 4) public offenses against the community, and 5) offenses by
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acts of falsehood or by breaches of trust. Bentham argues that private offenses against
individuals may include those against: 1) person, 2) property, 3) reputation, 4) condition (by
breach of duty), 5) person and property, and 6) person and reputation. Semi-public offenses may
include wrongful acts which endanger the well-being and security of a particular class or group
of individuals. Public offenses may include wrongful acts which endanger public security,
justice, general happiness, social harmony, economic prosperity, or national sovereignty.
Bentham argues that the punishment of illegal offenses against society should be proportional to
the amount of harm which is caused by these offenses. Punishment of offenses is not justified if
it is disadvantageous or needless. The amount of punishment for an offence should be sufficient
to deter further offences but should not be unjust or arbitrary.
Bentham also contends that any form of punishment for violating civil or criminal laws should
conform to the principle of utility. Any punishment which is inflicted upon an offending
individual should have a sufficient ground for the infliction of pain upon that individual. The
purpose of punishing illegal offenses against society is not only to prevent similar or greater
offenses but to offer satisfaction to those who have been injured and to discipline and reform the
offender.
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The Science of Legislation
Bentham took the first step to reform the laws and adopt them to the changing circumstances of
the society. Promotion of human happiness was the predominant objective. He laid down the
principles on which Legislations are to be drafted.
✓ Legislation is a science
✓ It must be based on the principles of utility
✓ Everyman is the best judge of his own happiness
According to Bentham, “The Principles of Utility has never been well developed, nor well
followed by any Legislator”. Public good ought to be the object and foundation of the Legislator
and his reasoning. The general utility must be the principle underlying legislation. To know the
true good of the community, the art of finding the means to realize that good, based on the
characteristics of human nature, law-making skills and application of legislative principles
constitutes the Science of Legislation.
English law was mainly based on the custom and modes of thought prevailing during various
periods till 18th Century. There was no specific guiding principles and judicial legislations built
up in the course of deciding individual cases. Bentham found them unsuitable to the requirement
of the time as they caused only discomfort and misery. According to him the right aim of
legislation must be the carrying out of principles of utility. He laid down three conditions –
firstly, we need to have a clear idea of the principles of utility and its meaning; secondly, we
must accept it as the only principle which has the paramount force and it is the logic of utility;
thirdly, it should adopt the process of moral arithmetic to find results in the application of this
principle.
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The Doctrine of Utility
Bentham’s principle of Utility meant that every act was morally valuable in so far as it results in
happiness. Unfortunately the principle was frequently misunderstood and received with
criticisms. The word ‘utility’ left unspecified the good towards which action should be directed,
sometimes producing non-hedonistic interpretations of the philosophy which were completely
alien to Bentham’s thought. For Bentham the utility was a test of the value of acts and to say that
acts are to be judged by their consequences have no value in their own right.
Hedonism is the theory of ethics in which pleasure was regarded as the proper end of an action.
According to Bentham public good ought to be the object of the legislator; general utility ought
to be the foundation of his reasoning. To know the true good of the community is what
constitutes the science of legislation; the art consists in finding the means to realize that good. As
the basis of legislation he is emphatic that the principles of utility, is the only certain guide and
Bentham is the first man to have said it. Though the theory propounded by Bentham gained
currency in the continent the Anglo-American jurists have put forth a lot of criticism against the
theory.
The principle of utility, vaguely announced, is seldom contradicted; it is even looked upon as a
sort of common-place in politics and morals. But this almost universal assent is only apparent.
The same ideas are not attached to this principle; the same value is not given to it; no uniform
and logical manner of reasoning results from it.
The doctrine of utility is said to be the result of a logical manner of reasoning. In order to make
the theory of utility the foundation of a system of reasoning there are three conditions to be
satisfied.
1. To attaché clear and precise ideas to the word utility, exactly the same with all who
employ it. In other words, the expression utility should be understood in clear terms and
full effect should be given to its meaning.
2. To establish the unity and the sovereignty of this principle, by rigorously excluding every
other. It is nothing to subscribe to it in general; it must be admitted without any
exception. In other words all other theories are to be excluded and the doctrine of utility
should be accepted as the sole guide.
3. To find the processes of a moral arithmetic by which uniform results may be arrived at.
In other words, the theory of utility should be implemented so as to yield uniform results,
the object being always public good and the implementation not leading to any other
result.
The causes of dissent from the doctrine of utility may all be referred to two false principles,
which exercise an influence, sometimes open and sometimes secret, upon the judgments of men.
If these can be pointed out and excluded, the true principle will remain in purity and strength.
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A principle is a first idea, which is made the beginning or basis of a system of reasoning. To
illustrate it by a sensible image, it is a fixed point to which the first link of a chain is attached.
Such a principle must be clearly evident, - to illustrate and to explain it must secure its
acknowledgment. Such are the axioms of mathematics; they are not proved directly; it is enough
to show that they cannot be rejected without falling into absurdity.
The logic of utility consists in setting out, in all the operations of the judgment, from the
calculation or comparison of pains and pleasures, and in not allowing the interference of any
other idea.
Utility is an abstract term. It expresses the property or tendency of a thing to prevent some evil or
to procure some good. Evil is pain, or the cause of pain. Good is pleasure, or the cause of
pleasure. That which is conformable to the utility, or the interest of an individual, is what tends
to augment the total sum of his happiness. That which is conformable to the utility, or the interest
of a community, is what tends to augment the total sum of the happiness of the individuals that
compose it.
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Pleasures and Pains
Nature has placed man under the empire of pleasure and of pain. We owe to them all our ideas;
we refer to them all our judgments, and all the determinations of our life. He who pretends to
withdraw himself from this subjection knows not what he says. His only object is to seek
pleasure and to shun pain, even at the very instant that he rejects the greatest pleasures or
embraces pains the most acute. These eternal and irresistible sentiments ought to be the great
study of the moralist and the legislator. The principle of utility subjects everything to these two
motives.
Bentham is a partisan of the principle of utility and he measure his approbation or disapprobation
of a public or private act by its tendency to produce pleasure or pain; when he employ the words
just, unjust, moral, immoral, good, bad, simply as collective terms including the ideas of certain
pains or pleasures; it being always understood that he use the words pain and pleasure in their
ordinary signification, without inventing any arbitrary definition for the sake of excluding certain
pleasures or denying the existence of certain pains. In this matter we want to no refinement, no
metaphysics. It is not necessary to consult Plato, nor Aristotle. Pain and pleasure are what
everybody feels to be such – the peasant and the prince, the unlearned as well as the philosopher.
He who adopt the principle of utility, esteems virtue to be a good only on account of the
pleasures which result from it; he regards vice as an evil only because of the pains which it
produces. Moral good is good only by its tendency to produce physical good. Moral evil is evil
only by its tendency to produce physical evil; but when we say physical it mean the pains and
pleasures of the soul as well as the pains and pleasures of sense. we have in view man, such as he
is, in his actual constitution.
If the partisan of the principle of utility finds in the common list of virtues an action from which
there results more pain than pleasure, he does not hesitate to regard that pretended virtue as a
vice; he will not suffer himself to be imposed upon by the general error; he will not lightly
believe in the policy of employing false virtues to maintain the true.
If he finds in the common list of offences some indifferent action, some innocent pleasure, he
will not hesitate to transport this pretended offence into the class of lawful actions; he will pity
the pretended criminals, and will reserve his indignation for their persecutors.
Over and above the general objections to utility theory there are two opposing principles, namely
(1) ascetic principle and (2) arbitrary principle. The followers of the first approve everything
which tends to diminish enjoyment. The arbitrary principle consists of two components, namely
‘sympathy’ and ‘antipathy’ characterized by the expressions of love and hate. One man’s views
may be thrust upon the society without caring for the sentiments of others. The main defect of
this is that conclusions are arrived at without the process of reasoning.
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Objections to Utility
1. The principle of utility is subject to a number of objections. One counter argument to

utility is that ‘virtue’ should be the basis of legislation. Virtue is the sacrifice of a less
interest to a greater, of a temporary one to a permanent one and of a doubtful one to a
certain one. Obviously it is utility itself.
2. A second objection is that it would be better to limit the application of utility to politics.
Legislation should be based on principles of justice. But Bentham himself points out that
this is not a real objection. The only difference between politics and morals is, that one
directs the operations of governments, and the other the actions of individuals. But their
objects is common, namely ‘happiness’.
3. A third objection is that utility is the revival of ‘Epicureanism’ which is based on
luxuries. But it is when known that it was adopted by the most corrupt men.
4. Another objection is that everyone makes himself judge of his own utility and upon this
system every obligation will lose its force the moment people cease to see their interest in
regarding it. Bentham points out that it is the quality of a rational being. One must think
and decide for himself.
5. The most important objection has come from those opposing on the basis of religious
principles. They profess to take the Will of God for the only rule of good and evil.
According to them it is the only rule which is infallible, universal and sovereign. But
Bentham analyses it to show that the will of God also assume the shape of utility, ascetic
theory or antipathy. Moreover religion has no function in politics and legislation.
6. Under modern conditions some general objections to the principles of utility have also
been suggested –
a. Individual interest and social interest may not always agree.
b. Pleasures and pains cannot always be the sole criterion to make law.
c. Utilitarianism fails to explain modern situations. Very often individual liberty is
curtailed or restricted.
d. Greatest happiness of the greatest number may be curtailed to protect the interest
of the minorities as for example; reservations.
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The Ascetic Principle
The term ‘ascetic’ refers to one who lives a life of austerity. He is one who rigidly denies himself
of the ordinary bodily gratifications for conscience’s sake. The term was used to denote the
monks to indicate their favorite practices of devotions and penitence. The ascetic principle is in
direct opposition to the principle of utility.
The ascetic philosophers approve everything which tends to diminish enjoyment and the blame
everything that tends to augment it. Those who follow the ascetic principle can be classified into
two namely the philosophers and the devotees. The ascetic philosophers discourage and reject all
vulgar pleasures. The devotees go to the extreme by consider man as a degenerate being who
ought to punish him for the crime of being born. He must undergo pain voluntarily so that it will
procure an age of happiness for him in another life. In this respect even the ascetic principle
reposes upon some false idea of utility.
The attraction of pleasure might reduce man into pernicious or evil acts. The evils generated out
of such acts will outweigh the pleasures conveyed by the acts. Therefore such pleasures with bad
effect must be forbidden. Hence sound morals and good laws should prohibit such pleasures.
Instead of making good of the human weakness to reduce and avoid such evil acts, the ascetics
have attacked the pleasures in general and condemned them in general.
The ascetic principle therefore attacks utility from the front. According to ascetics legislation is
an affair of fanaticism. But Bentham himself points out that it is not having much influence in
legislation. In his own words, “the ascetic principle, through embraced with warmth by its
partisans in their private conduct, has never had much direct influence upon the operations of
government” and therefore upon legislation”. The ascetic principle is so unreasonable that its
followers have not attempted to give effect to it.
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The Principle of Sympathy and Antipathy
The arbitrary principle is so called as it consists of approving or blaming by sentiment without

giving any other reason for the decision. In other words the decision is arbitrary. “I love, hate,
Such is the pivot on which the principle turns”. An action is judged to be good or bad on the
basis of whether it pleases or displeases him who judges it. It will be good or bad according to
the conviction of the judge who does not allege any reason and standard to justify his decision.
Thus he pronounces sovereignty with no appeal. He feels himself not obliged to justify his
opinion by any consideration relating to the good of the society.
It is as per his intimate conviction or interior persuasion that one takes the decision. He does not
bother to rationalize his sentiments. So it is despotic in nature. Persons can dictate their
sentiments as laws and remain immune from justifying those laws. Therefore it is not a principle
of reasoning. It is the very negation of reasoning. It leads to anarchy of ideas. Everyman having
an equal right to give his sentiments may result in the absence of a common standard of measure
for comparison.
To cover such apparent absurdity and despotism of this principle, different forms and disguises
are invented. In the words of Bentham, “despotism is veiled under some ingenious phrase”.
Some decide what is good and what is evil, according to their conscience or moral sense, i.e., an
action is good or bad because his moral sense tells him so. Similarly common sense is another
phrase in disguise. A third one is that this understanding determines what is good and what is
bad. Yet another group of people may not accept the previous theories but may claim to have an
eternal and immutable rule of right whereby they can inflict their views upon others.
Some learned persons may justify their views on the basis of natural rights. but the standards and
concepts differ widely. Some others classify action into truth and falsehood approving the former
alone. Another group may claim that they are dictating on the assumption that they are most
favored by God. Whatever might be the method, the inherent defect of the arbitrary rule is that it
has no respect for the sentiments of other people.
The principle of sympathy and antipathy which are the two components of arbitrary principle
often coincide with the principles of utility. To love what benefits us, to hate what hurts us, is a
universal principle of the human heart. Antipathy may sometimes be found in union with the
principles of utility. The principles of antipathy exercise a great influence over morals and
legislation. To legislate is an affair of observation and calculation under utility. It is a matter of
fanaticism for the ascetics and a matter of humor or of imagination or of taste under the principle
of ‘sympathy and antipathy’. Utility is adapted to philosophers, the ascetic principle to monks
and the third to multitude of people.
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Causes of Antipathy
‘Antipathy’ is one component of the principles influences morals and legislation. There are six
causes for antipathy:-
1. Repugnance of sense – It is the transition from physical to moral antipathy. For no fault
of theirs we hate things which are ugly, i.e., which is a little bit different from the
ordinary one. The sentiment of disgust and hatred will be the underlying reason.
2. Wounded pride results from one’s superiority not recognized by others.
3. Limitation in power – when one feels that the exercise of his power is put under control a
feeling of antipathy will result.
4. Weakening of confidence – when one’s confidence in the future is weakened or
destroyed by the conduct of others beyond one’s expectation it creates disgust.
5. Desire of unanimity – unanimity pleases when it is found that one’s opinions are not
agreed to by others there will be the resulting antipathy.
6. Envy – the enjoyment which one person may not have may result in the envy of another
and incidental in resulting in antipathy.
The causes of sympathy are “constant and natural” which the causes of antipathy are “accidental
and transitory”. The true follower of utility will not be susceptible to such influences.
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Different kinds of Pleasures and Pains
Bentham enumerates pleasures and pains. “Pleasure are variety of sensations which satisfy or
benefit our sense or faculties”. Sensations causing injury or disappointment are “pains”. They
can be simple or complex. When they are composed of several pleasures or pains they are known
as complex pleasures or pains. For instance a theatrical show gratifies many of senses like sight,
hearing etc. when the pains or pleasures cannot be decomposed they are known as simple
pleasures or simple pains.
Simple Pleasures
1. Pleasures of sense – those which are referred to our organs independent of all
associations. E.g. pleasures like taste, smell, hearing, sight and touch.
2. Pleasures of riches – those derived from the possession of things which are the means of
enjoyment and security.
3. Pleasures of address – those resulting from handling some instruments which aid the
attainment of pleasure. E.g. engaging a musical instrument.
4. Pleasures of friendship – those arising from friendship with others and the goodwill and
the possible services from such relationship.
5. Pleasures of a good reputation are earned by esteem and goodwill of the people around
you.
There are also
6. Pleasures of power
7. Pleasures of piety
8. Pleasures of benevolence (arising from the happiness of those who love us)
9. Pleasures of malevolence (caused by the pains of those who do not love us)
10. Pleasures of knowledge
11. Pleasures of memory
12. Pleasures of imagination
13. Pleasures of hope and
14. Pleasures of association
There may also be the pleasures arising out of the cessation or diminution of pains.
Simple Pains
Bentham gives eleven kinds of simple pains. They are:-
1. Pains of privation – they correspond to all the pleasures whose absence excites a
sentiment of disappointment.
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2. Pains of sense – nine kinds are given like those of hunger and thirst, of taste, of smell, of
touch, of hearing and sight, excess of cold or heat, diseases of all kind and fatigue of
mind or body.
3. Pains of mal-address – by useless attempts to use various tools or instruments.
4. Pains of enmity – harm at the hands of enemies.
5. Pains of bad reputation
6. Pains of piety
7. Pains of benevolence
8. Pains of malevolence
9. Pains of memory
10. Pains of imagination
11. Pains of fear
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Pain or Pleasure as Sanction of Law
According to Bentham the pleasures and pains operate as motive forces or ‘sanctions’. The pain
or pleasure which is attached to a law, forms what is called its sanction. The laws of one state are
not enforceable in another as there will be no obligatory force. Sanctions may be classified into
four –
1) Physical,
2) Moral
3) Political
4) Religious
Physical (natural) sanction refers to the pleasures to pains which result in the ordinary course of
nature ‘without human intervention’. Moral or popular sanction results from the action of others.
It results from the ‘friendship, hatred’, ‘esteem or contempt’ of others. It may also be called
sanction of public opinion or sanction of honor. Political or legal sanction is the one resulting
from the implementation of laws. Religious sanction refers to the pleasures or pains by virtue of
promises or threats of religion. Suppose a person’s house is destroyed by fire. If it is due to his
imprudence the pain is a natural sanction. If it s by order of court then it is legal sanction. If it is
due to the malice of his neighbors the sanction is popular. If it is by an act of divinity the pain is
religious sanction. The four sanctions do not act upon all men in the same manner and with the
same degree of force. Sometimes they are rivals. Sometimes they are allies. When they agree
they operate with irresistible power. When they are rivals they produce uncertainties and
contractions in the conduct of men.
Although not impossibility it is difficult to combine the four kinds of sanctions in single
legislation. Bentham says, “there is no chance of uniting them except under the standard of
utility’. If such a unity is achieved the legislation will be perfect. But even in other cases
legislator can give direct effect to political sanction. It acts upon all men with an equal force. The
other sanctions should also be considered as supplementary ones. The popular sanction and
religious sanction are more variable depending on human caprice. Natural sanction will be able
to produce whatever uniformity there is in the sentiments and decisions of men. Bentham says
that they are like magnets. The strength is lessened when they are placed with the opposite poles
near them. But their power will be doubled when they are united by the poles which correspond
to each other.
The sanctions are susceptible of mistakes. It may be contrary to the principle of utility. For
instance when an accused person is convicted of an offence the other innocent members of his
family are also condemned by the people. This is an error of the popular sanction. One receiving
very high interest instead of the legal interest causes an error of the political sanction. Certain
sympathies and antipathies are the errors of natural sanction. The legislator is to be cautious
about such errors.
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Increasing Pleasures and Preventing Pains
Bentham’s theory of legislation depends on utility. The sole object of the legislator is to increase
pleasures and to prevent pains. For this their respective values are to be measured. The legislator
has to know the power of the instruments employed.
The value of pleasure in relation to a single individual will depend upon its intensity, duration,
certainty and proximity. The same method is to be adopted for measuring the value of a pain.
But when the tendency of an act to produce pain or pleasure is to be measured to additional
factors are also considered. They are its productiveness and purity. A productive pleasure is
followed by other pleasures of the same kind. Similar is the position of a productive pain. A pure
pleasure is one which is not likely to produce pain. A pure pain is one which is not likely to
produce pleasures.
When the calculation is with reference to a group the extent shall also be considered. Extent
refers to the number of persons who might be affected by the pain or pleasures.
These are said to be the elements of ‘moral calculations’. From this perspective ‘legislation
becomes a matter of arithmetic’. Though this calculation of good and evil is to be effected, it is
usually done unconsciously. However it influences the result i.e., accepting the good and giving
up the evil. For instance consider the way in which we value the interest in a property. It depends
upon the amount of pleasure to be derived from it. That in turn depends upon the period to
enjoyment, the nearness of the moment whose possession is to commence, the certainty or
uncertainty of its continued possession and all such allied factors. False estimate of some of these
factors may result in errors. That is the same both in the conduct of men as well as in
Legislations.
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Circumstances affecting Sensibility of Man
Primary Circumstances
The reaction of pleasures and pains vary with people. The difference may be in degree, or in
kind. It varies in degree when the result is not equal in relation to different individual things do
not affect us in the same manner in sickness and in health. So also it may vary in plenty and
poverty and in infancy and old age. Bentham enumerates 15 primary circumstances as
influencing the sensibility of man.
1. Temperament – this is referring to the basic disposition of a person from the time of birth
depending on this physical constitution and the nature of the mind.
2. Health – sick person react to pain more easily and will be less sensible to pleasures.
3. Strength – though connected with health, strength or its negative feebleness are also
relevant factors.
4. Corporal imperfection – bodily deformity is an element which makes persons more
sensible to pain than to pleasure.
5. Degree of knowledge – the amount of ideas which a man possesses will influence the
sensibility.
6. Intellectual faculties – exactness of memory capacity of attention, clearness of
discernment, vivacity of imagination, etc., are referred to here.
7. Firmness of mind – this quality is attributed to done who is less affected by immediate
pleasures or pains than by great pleasures or great pains which are distant and uncertain.
8. Perseverance – it relates to the length of time during which a given motive acts upon the
will with a continuous force. Children are thus delighted with toys but soon grow tired of
them.
9. Bent of inclination – it refers to the mental attitude towards a thing. Bentham points out
that the next four are sub-divisions of such inclinations.
10. Notions of honor.
11. Notions of religion.
12. Sentiments of sympathy.
13. Sentiments of antipathy.
14. Folly or Disorder of mind – such imperfections may amount to ignorance, feebleness,
irritability and inconsistency.
15. Pecuniary circumstances – this has to be assessed by considering the sum of the means
and the sum total of the wants.
Secondary Circumstances
1. Sex – the sensibility of women is greater than that of man.

2. Age – it is very important factor. Sensibility varies from infancy to old age. The
legislation has to afford protection to the minors and adolescents.
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3. Rank – there is no hard and fast rule; but rank affects sensibility. It is greater among
those in higher ranks.
4. Education – physical, intellectual and moral education are important factors.
5. Habitual occupation – whether of profit or amusement or of choice influence other
factors like health, strength, knowledge, inclinations, etc.
6. Climate – sensibility varies with climatic conditions.
7. Race – this is also having its influence on sensibility.
8. Government – its influence is immense that it is the most important among secondary
circumstances.
9. Religious profession or sensibility – the religious background will also affect the
sensibility of a person.
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Practical application of Sensibility
The circumstances affecting sensibility are very important considering legislation. Bentham cites
the example of Penal laws and the relevance of sensibility for the following:-
1. To ascertain the evil of an offence – an action which might cause a serious insult to a
woman may have no effect at all upon a man.
2. To give a proper satisfaction to the injured – where sensibility is different the same
dominal satisfaction may not be the real satisfaction. When compensation might satisfy
some it may not be sufficient for others.
3. To estimate the force of punishments – the same punishment may not have the same
effect upon different delinquents. Imprisonment may not be an equal punishment for a
man and for a woman.
4. To transplant a law from one country to another – as laws differ the sensibility of
people also vary from country to country. Therefore when the law of a country is
followed in another the circumstances influencing sensibility should be taken into
account.
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A Choice of Evils
According to Bentham, it is a basic principle which every law-maker should bear in mind that
every law is an evil because every law is a violation of liberty so that Government can only
choose between two evils.
The legislator ought to be certain of two things. Firstly, in every case the acts which he
undertakes to prevent are really evils. Secondly that these evils are greater than those which he
employs to prevent them.
He has then two things to note – the evil of the offence, and the evil of the law; the evil of the
malady, and the evil of the remedy.
An evil seldom comes alone. It cannot just fall upon one person without spreading on every side
as from a centre. As it spreads it takes different forms.
Evils can be classified into three, as those of the first, second and third orders. The immediate
effect of a bad action is the evil of the first order. When it causes an effect through the
community it is of the second order.
Evil of the first order can be divided into the primitive evil and the derivative evil. That which is
suffered by the person affected is primitive evil and the suffering caused by the relatives of the
injured is derivative evil. The evil of the second order can also be divided into two namely, alarm
and danger. Alarm is a positive pain and danger is the probability. These two are closely
connected. There may by alarm where there is no danger. There may be danger where there is no
alarm. The evil that has happened produces danger. Danger produces alarm. A bad action is
dangerous an example. If a robber is not punished by the State, it gives an incentive to other
people to commit robbery.
Suppose you are beaten, wounded, insulted and robbed, your personal suffering amounts to
primitive evil. The suffering of the members of your family will then be derivative evil. The
combined effect is to produce an evil of the first order. In the case of robbery the other people
will feel that their properties may also be robbed. The idea of danger spring up an alarm; the
danger and alarm constitute the evil of the second order. Alarm is a pain of apprehension of
suffering of the same evil which we see in another. Danger is the probability that a primitive evil
may produce other evils.
If an evil done to you spreads among a greater number of people it becomes an extended evil.
For instance, when the defamatory imputation gains publicity it is an extended evil. When the
amount stolen belongs to a society or to the Stat4e the evil becomes a divided evil. The effect of
the evil is to be shared by a number of persons. If in consequence of the wound you have
received, you suffer additional injury it amounts to a consequential evil. Loss of a marriage, loss
of a lucrative business, etc., are the examples. Irreparable injury like loss of limb causes
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permanent evil. An evanescent evil is that which may pass away altogether. E.g. A wound which
is easily healed.
Though the classification appears to be highly technical the distinctions are relevant in law
making. It is according to the gravity of the evil that the remedy has to be thought of by the
legislator. The primitive evil affects one individual, the derivative a small number but the evil of
the second order affects a whole society. But the evil of the third order is more dangerous. When
the alarm reaches the highest point and continues for a long time it will freeze even the active
faculties of men. It will reflect in the operations of the agriculture, industry, etc., and will directly
retard the progress of society.
The classification of evils is equally applicable to the good also. Good actions can also be
divided into those of the first order of the second order and of the third order. The first one may
be primitive and derivative. The second one will produce a certain degree of confidence and
security. The third one will result in gaiety of heart and good motives. However, evil spread
rapidly but good does so only slowly. The society is so constituted that in doing good to one will
amount to good in the society.
The effect of evil need not always be evil. It may produce a good also. The punishment for an
offence may cause alarms and danger to the offenders. But it produces a good result for the
others. It produces a sense of confidence in the minds of the people as a whole. If the offenders
obey the laws, they will not be exposes to danger or alarm.
Just as in case of medicine where poison can cure a disease in law also one evil may combat
another. Therefore it is a question of choice of evils.
Good has also got the same prerogatives. Out of a good action, we can see a good of the first
order, divisible into primitive and derivative. So also there will be a good of the second order
which produces confidence and security. But the proposition of good is less rapid than that of
evil. However, good is a necessary result of natural causes which operate always; while evil is
produced only by accident, and at intervals.
An evil need not always result in evil. For instance, juridical punishments (though by themselves
may be evils) result in good of the second order. Those who obey the law will not be exposed to
danger or alarm.
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Certain Acts treated as Offences
Legislators prohibit acts which produce more evil than good. A prohibited act is called an
offence or a crime. In order to respect such prohibitions law imposes punishments for offences.
Some acts are universally known as crimes. There the legislature is only recognizing the views of
the people. But there are other acts the nature of which varies according to prejudices. These are
to be tested on the basis of utility. The analysis will be easy according to Bentham’s
classification of evils into those of the first, second and third orders. The good and evil produced
by an act are to be assessed at every stage. If the combined effect is to produce more evil than
good then such an act is to be prohibited. Bentham has given certain reasons for treating certain
acts as offences.
1. Passion of hatred – a person may try to cause all types of harm to another who is taken
to be his enemy. By this he enjoys a feeling of pleasure at the pain suffered by the latter.
But soon fears of all kinds will trouble the first person. The passion out of which the act
was committed will also vanish. At the same time the pain of the injured continues and
lasts longer than the pleasure of the other person. Slowly the effects of the act spread over
all the similar minded persons. They will, in turn, be subjected to the same fear. Thus evil
of the second order is produced. This will continue till the culprit is punished.
2. Imperious motive – haughty and tyrannical motive may produce actions resulting in
evils. Taking the example of ravishment Bentham illustrates it. The alarm created in the
minds of women who are outraged will be quite serious. There are instances of such
things even resulting in wars.
3. Motive of cupidity – the pleasure and pain resulting from the violation of another’s rights
will not prove to be equal. Evils of the second order give certain acts that character of a
crime. In such cases punishment becomes necessary. Suppose a starving beggar steals a
loaf of bread from a rich man’s house. The good which the thief acquires himself is not
comparable with the evil which the rich man suffers.
4. Desire of self-preservation – without punishments there would be no security though
punishment may be an evil imposed by law. if somebody escapes punishment law
becomes ineffective to that extent. The evil which results from the non-existence of law
is, in fact, combination of all the different evils which the laws have to prevent. There
might be an alarm or a danger. In order to avoid this, there must be the evils created by
law. An act of self-defense may create an evil. But it does not create any alarm of danger.
Self-defense itself will depend upon a number of circumstances which are question of
fact. They are the means of justification or extenuation in regard to the offences
committed.
According to Bentham in some cases innocent actions are treated as crimes or trifling offences as
grave ones. In such cases usages must be made subject to some rule. The principle of utility is
helpful. It confirms just attitudes and annuls those which are wrong.
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Role of Morals in Legislation
The background – the ultimate aim and object of morality and legislation are the same. They
want to produce the greatest possible sum of good. However morality has a wide sphere in
controlling the actions of men, both public and private. In company with this legislation has a
lesser function as it is not purporting to control the whole conduct to men. Morality commands
each individual to do all that is advantageous to the community. But there are a number of acts
useful to the community which legislation ought not to command. Many injurious actions are not
so forbidden by legislation. In a word, ‘legislation has the same centre with morals, but it has not
the same circumference’.
Reasons – there are two important reasons. The first is that legislation can have no direct
influence upon the conduct of men except by punishment is justified as it results in greater good.
If moral principles are imposed by the legislator the result would be doing more harm than good.
The second reason is that in implementing the laws there is always the possibility of the innocent
being punished. The object is to punish the guilty. It results from the difficulty in defining an
offence giving a clear and precise idea of it. Such things like hard-heartedness, ingratitude, etc.,
cannot be brought under the law. There can only be popular sanction against them.
Classification of moral duties – duty to ourselves; the actions affecting one’s individual interest
from a class by itself; the required mental condition for this is called prudence.
Duty to others – this relates to conducts in the interest of others. It has two aspects. First is
probity, i.e., abstaining from reducing the happiness of others. Second is beneficence, i.e., the
positive act to affect the happiness of others.
“Morality upon these points needs the aid of the law; but not in the same degree, nor in the
same manner”.
1. Rule of prudence – if a person comings a wrong to himself it may be by his own mistake.
If he is punished for that it will be difficult for the state to provide suitable punishment. In
some cases of violation of morality, law is helpless. The legislator may not be able to
provide laws against drinking of liquor or illicit intercourse. It can be controlled by
morality and popular sanction. So also state regulations may not be possible in respect of
religious principles. In general the state may intervene only when the actions of
individuals cause injury or evil to others.
2. There is a natural connection between produce and probity. People do some good to their
friends and relatives. They do some good to others with the expectation of reputation or
out of fear or blame. Such a person would always be guarded against doing harmful acts.
In many cases morality derives its existence from law. the manner of requiring wealth
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may be good in one country while it may be bad in another. Similarly laws providing for
offence against the state also vary.
3. In beneficence – (active goodness or charity) it is morality and especially religion which

form the necessary complement to legislation and the sweetest lie of humanity. Laws
must prevent cruelty to inferior animals though slaughter of animals as such need not be
prevented. Bentham is not agreeing with some of the precepts of the Hindu religion.
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False Reasoning in Legislation
The notion of utility are the yardsticks in legislative logic. The good reasoning is to allege the
good or evil which the law tends to produce. Good and evil are nothing other than pleasure and
pain. False reasoning is alleging for or against a law something other than its good or evil effects.
Truth is in morality, good is in the laws and always utility is applied unconsciously. Bentham
suggests some false methods of reasoning on the subject of legislation.
1. Antiquity – antiquity of a law, by itself, is not a reason. If it is older the easier it would be
to enumerate its good results.
2. Authority of religion – a provision of law is not acceptable simply on the belief that it
has been sanctioned by God.
3. Reproach of innovation – a law should not be opposed simply because of its new
innovation. Even ancient laws were new when newly introduced.
4. Arbitrary definition – an expression should not be defined in a manner that cannot easily
be understood by the people. For instance Montesquieu’s definition of law itself was
confusing. He said, “laws are relations and eternal, relations”. The same author has also
said “law in general, is human reason, in so far as it governs all the people of the earth”.
On the other had Rousseau said, “Law is the expression of the general will”. That also is
not fully satisfactory. In this context, Bentham emphasizes pleasures and pains.
5. Metaphors – using of metaphors causes the next category of false reasoning. Comparing
law to ‘castles’, ‘fortresses’, ‘house of god’, ‘balance of trade’, etc., causes only
prejudices. Thus allegation is against Blackstone.
6. Fictions – use of fictions forms another false reasoning. Blackstone has said that the
‘king is present everywhere, he can do no wrong, he is immortal’. Bentham says this is
ridiculous. The contract theory in political relations is also not acceptable. Locke supports
the contract theory but it is rejected by Rousseau.
7. Fancy – people attribute reason to their fancy and arrive at absurd conditions.
8. Antipathy and Sympathy – antipathy and sympathy are not good reason of the
legislation. Antipathy is more commonly connected with penal law. it is the principle of
antipathy which leads us to speak of offences as deserving punishment. The
corresponding principle of sympathy leads us to speak of certain actions meriting reward.
The legislator is not to be activated by feelings of sympathy and antipathy.
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9. Begging the question – assuming the question consists of making use of the very
proposition in disputes as though it were already proved. This false procedure has
influenced morals and legislation. It will not introduce new ideas. It proceeds on the basis
of assumptions. Blackstone suggested that the British Constitution should combine the
ideas of monarchy, aristocracy and democracy. They are not compatible with each other.
It can easily be said that British Constitution unites all the particular faults of democracy
and monarchy.
10. Imaginary law – it is not a good reason. “Natural law” and “natural rights” have often
been treats as fictions. But Bentham criticized the whole concept referred to in books of
legislation. They can only be treated as fictions. Bentham has criticized the whole
concept. Natural rights are the creatures of natural law; one metaphor deriving its origin
from another metaphor.
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Natural Law and Natural Rights
Natural law and natural rights are two kinds of fictions or metaphors in the eyes of Bentham.
Yet, as he himself pointed out, they are given important position in books of legislation.
According to him ‘rights properly so called are the creatures of law properly so called; real laws
give rise to real rights’.
In the ordinary sense, the word law has been referred to the will or command of a legislator.
Law of nature is a fugitive expression. Nature itself is represented as a being. In this sense all
inclinations of men may amount to law in the same sense of the term. But it is not usually used in
that sense. Authors use it as if there is a real code of natural laws. This is against reality. In the
case of laws made by legislator, they will be specific and definite. But natural laws cannot be
said like that.
Blackstone said, the obligation of the parents is the “principle of natural law, a duty imposed by
nature itself and by the proper act of the parents in bringing the children into the world”.
Montesquieu had said that this obligation had caused the establishment of marriage which in turn
requires the person to fulfill his obligation.
According to Bentham the word rights has also two senses: the one at proper sense and the other
a metaphorical sense. Real laws give birth to real rights.
To him, what is natural in a man can be called faculties. He is not in favor of calling these
faculties as natural rights.
Bentham criticizes the whole concept. To him what natural to man is sentiments of pleasure or
pain which is called ‘inclinations’. They are to be subjected to laws. Otherwise enacted law will
become superfluous. He said that natural reasoning resulted from confusing scientific laws with
moral and legal laws. Legal and moral law prescribes how many should behave. To say that it is
natural law for man to have children; means merely that this is his general tendency. It is not that
he is under any moral or legal duty to conform to this tendency. Bentham concludes; ‘everything
is referred to pleasures or pains, every expression is avoided which tends to disguise or intercept
the familiar idea, that from such and such action result such and such pleasures and
pains………Calculating their effects in good and evil, and prefer that which promises the greater
sum of good’.
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The Civil Code
Of all the branches of legislation, civil law is that which has the least attraction for those who do
not study jurisprudence as a profession. Comparatively more importance has been given to
political economy, penal law and principles of government. Civil law had not come out of the
narrow enclosure of the profession. The public is not aware of the details about its divisions and
titles.
Civil law deals with everything of importance to men. It deals with security, property, mutual
and daily transactions. It also deals with the domestic relations from where rights and obligations
spring up. According to Bentham all the objects of law may be reduces, without mystery, to
these two terms.
To commit a private offence is to violate and obligation which we owe to an individual. To

commit a public offence is to violate an obligation which we owe to the public. Civil law, thus
can be said to be penal law viewed under another aspect.
The principles of civil law are the true reasons which ought to guide the legislator in the
distribution of the rights which he confers and the obligations which he imposes.
Bentham inducted the notions of just and unjust in the study of law. When he explains
obligations he shows plainly that every obligation ought to be founded either upon a precedent
service received by the person obliged or upon a mutual agreement which derives all its force
from its utility. Bentham considers the effects which the laws produce upon the faculties of man
as a sensitive being. He always gives pains to be avoided as the only arguments of real value.
Use of fictions has been criticized. Quasi contracts have not even the appearance of existence. In
certain cases lawyers admit of civil death. In others they deny the natural death. A person who is
absent is taken to be present. A person who is present is regarded as absent. Men are sometimes
things. Things are sometimes provided with right and submitted to obligations. But Bentham
makes no suppositions, no arbitrary definitions; no reason which is not the expression of a fact;
no fact which is not a statement of good or bad effects.
It is by this logical method of reasoning that Bentham has made a new science of civil law; new
and even paradoxical for those who have been bred in the opinions of the old schools; but
simple, natural and even familiar to those who have not been bewildered by false systems.
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Rights and Obligations
Rights and obligations, though distinct and opposite in their nature, are simultaneous in their
origin, and inseparable in their existence. Law can grant a benefit to one. At the same time it will
be imposing a burden upon another. When a right is created in favor of one, there will be a
corresponding obligation upon another. Rights are advantages or benefits for the one who enjoys
them. Obligations are duties, charges or burden imposed upon the person who ought to fulfill
them.
All the objects which the legislator is called upon to distribute among the members of the
community may be reduced to two classes, namely rights and obligations. A legislator can confer
rights with pleasure. They are in themselves good. He should impose obligation with reluctance.
They are in themselves an evil. According to the principle of utility, he ought never to impose a
burden except for conferring a benefit of a clearly greater value. The law creates an offence
either by a positive command or by a prohibition. By creating obligation some amount of liberty
is curtailed. It is inevitable. It will not be possible to create rights and impose obligations except
at the expense of liberty.
Liberty is usually wrongly defined. “Liberty consists in the right of doing everything which is
not injurious to another. This is absurd. If it is so, an officer of justice would not be at liberty to
punish a wrongdoer unless he were sure that the punishment would not hurt the wrongdoer.
Bentham concludes this. The object of government ought to be the greatest possible happiness of
the community. The happiness of an individual is increased in proportion as his sufferings are
lighter and fewer. His enjoyments will be greatest and more numerous. The government has to
guard against pains. The law cannot create rights except by creating corresponding obligations.
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Ends of Civil Law
The four chief ends of law are said to be –
a. Subsistence
b. Abundance
c. Equality
d. Security
Without law there is no security and without security the values of subsistence, abundance and
equality cannot at all be pursued through law. The overwhelming emphasis on security should
not obscure the fundamental contribution in identifying ‘subsistence’ as among the four chief
ends of civil law.
The functions of law are said to be to provide subsistence, to produce abundance, to favor
equality and to maintain security. In practice these ideas cannot be found to be distinct and
separate. A law for security will at the same time be favoring subsistence and abundance.
Sometimes they may unite. Equality might require a distribution of property which would be
incompatible with security.
It is also pointed out that security is the only which necessarily embraces the future. The others
related to the present time. Liberty is a branch of security. Equality is to be favored only when it
does not interfere with security.
Subsistence and security arise together to the same level. Without security equality could not last
a day. Without subsistence, abundance could not exist at all. Bentham further elaborates the
application of these ideas in relation to civil laws.
Hedonistic calculus
By utility, Bentham meant that every act was morally valuable in so far as it resulted in
happiness. According to him the sole object of legislation is to increase pleasure to prevent pains.
The value of pleasure or pain in relation to an individual depends upon various factors and
circumstances. They may relate to its intensity, duration, certainty and proximity. Pleasures and
pains must be placed on either side of the balance. Then see how they balance. The pains will
have to be reduced to the maximum extent possible. For example suppose a law is to be made to
prevent robbery, place the pleasures of the robber on one side of the balance and the pains of the
victim on the other side. On this calculation the law has to be made to reduce the pains. This is
known as Hedonistic calculus. Hedonism can be said to be the theory of ethics by which pleasure
is regarded as the proper end of every action.
Page 203 of 203

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What do you mean by Statute?

There are two types of Ambiguities, namely;

• Latent Ambiguity – means introduced by explicit evidence whose vagueness is hidden

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Definition of Interpretation & Construction

Michael Zander3 gives three reasons why statutory interpretation is necessary.

Construction means construing, explaining or interpreting of a text, statement, action or words

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Presumptions & Considerations in Interpretation

1. Presumption as to validity of the statute

2. Presumption as to territorial operation of the statute

3. Presumption that statutes are consistent with International Law

4. Presumption that Legislature does not commit mistake

5. Presumption that Legislature does not use superfluous words

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6. Presumption that words used by Legislature bear ordinary meaning

7. Presumption that Legislature has knowledge of English grammar

8. Presumption that Legislature knows law and judicial decisions

10. Presumption that vested rights are preserved

11. Presumption that Legislature does not intend what is inconvenient

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13. Presumption against retrospectivity

14. Presumption as to jurisdiction of courts

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alternative construction, if it is reasonably possible. Whenever the language of a

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The Process of Interpretation

Salmond refers to 2 kinds of Interpretations:-

A. Grammatical Interpretation / Literal Construction

Limitations of Grammatical Interpretation

The following defects could cause failure of grammatical interpretation:

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The classification of statutes with reference to the basis of duration is as follows:

• Perpetual / Permanent statutes;

The classification of statutes with reference to nature of operation is as follows:

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The classification of statutes with reference to objective is as follows:

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A repealing statute either expressly or by necessary implication revokes or terminates another

The classification of statutes with reference to extent of application is as follows:

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Basic Rules of Interpretation

A. Intention of the Legislature (LITERA LEGIS & SENTENTIA LEGIS)

CONSTRUCTION EXVISCERIBUS ACTUS – connotes that every part of statute should be

LOQUITOR UT VULGUS – Court should interpret / construct according to the common

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Intention of the Legislature ((LITERA LEGIS & SENTENTIA LEGIS)

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In Thakkar Shipping Private Limited v Commissioner of Customs (General)16, S 129 D (1) of

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Statute must be read as a whole in its context (EX VISCERIBUS ACTUS)

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In M. Pentiah v Veeramallappa Muddalla31, the Hyderabad District Municipalities Act, 1956

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General Rules / Principles of Interpretation OR Kinds of Construction

1. The Literal / Grammatical Rule