Subsidiary Rules

1. Same word same meaning – same meaning of same word throughout must yield to context.
Even when the same word is used at different places in the same clause the same section it may not
bear the same meaning at each place having regard to the context of its use. Eg: AIR 1976 SC 2602, p.
2608: 1977 ( 1) SCC 155. Maharaj Singh v. State of U.P., The word 'vest' even when used once in a
section may mean merely vesting of management in the context of one property and vesting of
ownership in the context of another property.
Use of Different Words
When in relation to the same subject-matter, different words are used in the same statute, there is a
presumption that they are not used in the same sense. Eg: AIR 1964 SC 1687, Labour Commissioner,
M.P. v. Burhanpur Tapti Mills Ltd. further example of the application of the rule may be seen in a
more recent decision of the Supreme Court where the phrase 'rendered illegal' occurring in section 42
of the C.P. and Berar Industrial Disputes Settlement Act, 1947 was construed to bear a different
meaning from the phrase 'held illegal' used in sections 43, 44 and 45 of the same statute.
2. Rule of Last Antecedent
The rule applies only when there is ambiguity in the analysis of the qualifier and only when there is a
list of options preceeding the qualifier. The is subordinate to ‘context’. Eg: AIR 1966 SC 882
Mongibai Hat-tram v. State of Maharashtra - while construing the definition of 'premises' in the
Bombay Land Requisition Act. 1948, which reads 'any building or part of a building let or intended to
be let separately', it was held that the words let or intended did not qualify the word 'building' but only
the words to be let separately 'did not qualify the word 'building' but only the words 'part of a
building'.
Eg: section 2 of the Supreme Court Advocates (Practice in High Courts) Acts 1951, which reads
'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 roil of Advocates of a High
Court may he permitted to practise in that High Court, every Advocate of the Supreme Court shall be
entitled as of right to practice in any High Court whether or not he is an advocate of that High Court',
PATANJAL1 SHASTRI, C.J. said: "Having regard to the words 'anything contained' and the
preposition 'in' used after disjunctive 'or', the qualifying clause cannot reach back to the words 'Bar
Council Act'." It was held that the adjectival clause ‘regulating the conditions etc.', qualified the word
'law' and not the words 'Bar Council Act’
Exception: Context – Eg: Links Advertisers and Business Promoters v. Conunr., Corporation of the
Ciro of Bangalore, AIR 1977 SC 1646 - In construing the words no tax shall be levied on any
advertisement which is exhibited within any railway station or upon any wall or other property of
railway except any portion of the surface of such wall or property fronting any street', the Supreme
Court held that the words 'fronting any street', qualified the noun 'advertisement' and not the words
'wall or property
3. Non Obstante Clause
The expression 'notwithstanding anything in any other law' occurring a section of an Act cannot be
construed to take away the effect of any provision of the Act in which that section appears.
A provision beginning with the words, 'Notwithstanding anything in this Constitution' added.in the
Constitution by a Constitution Amendment Act cannot be construed as taking away the provision
outside the limitations on the amending power and it has to be harmoniously construed consistent
with the foundational principles and basic features of the Constitution.
Eg: The non obstante clause need not necessarily and always be co-extensive with the operative part
so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment
are clear and are capable of only one interpretation on a plain and grammatical construction of the
words clause cannot cut down the construction and restrict non obstante thereof a clause has to be non
obstante the scope of its operation. In such cases the non obstante clause has to be read as clarifying
the whole position and must be understood to have been incorporated in the enactment by the
Legislature by way of abundant caution and not by way of limiting the ambit and scope of the
operative part of the enactment - Dominion of India v. Shrinbai A. Irani, AIR 1954 SC 596
The above mode of approach in construing a non obstante clause was followed in construing section
26 of the Travancore Cochin General Sales Tax Act (11 of 1125 M.E.). The section which was added
by an amendment in 1951 provided that 'Notwithstanding anything contained in this Act—a tax on the
sale or purchase of goods shall not be imposed under this Act', in cases within the categories specified
under Article 286 of the Constitution. It was held that sales falling within the categories specified
under Article 286 were taken out of the purview of the Act and the value thereof could not be
included in the turnover of the dealer either for assessment or for levy of tax - A.V. Fernandez v. State
of Kerala, AIR 1957 SC 657
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 clause. There should be a clear inconsistency between the two
before giving an overriding effect to the non obstante clause .
But if the non obstante clause in a later enactment is subject to and supplemental to an earlier
enactment also containing a clause the earlier enactment may be interpreted to non obstante prevail
over the later enactment – Eg: 250-51
Ravi Dun Sharma v. Roam Lill Bhargava, (1984) 2 SCC 75
A conflict between two special Acts which have both notwithstanding clauses can also be resolved by
seeing which is more special than the other in addition to the consideration that the conflict arose
because of a provision later in the Act which is more specia1.
Legal Fiction
The legislature is quite competent to create a legal fiction, in other words, to enact a deeming
provision for the purpose of assuming existence of a fact which does not really exist' provided' the
declaration of non-existent facts as existing does not offend the constitution. The word ‘deemed’ is
usually used as a legal fiction. It is not to be extended beyond the purpose for which it is created. It
cannot also be extended by importing another fiction. if A is deemed to be B, compliance with A is in
law compliance with B and contravention of A is in law contravention of B. Eg: Article 341(1)
empowers the President to specify with respect to any within tribes or parts of or groups notification
'the castes, races or castes, be within castes, races or tribes which shall for the purposes of this
constitution be deemed to be scheduled castes in relation to that state. Article 342(2) provides that the
notification so issued shall not be varied except by Parliament. In interpreting this provision, it has
been held that because of the legal fiction resulting from the deeming provision, the conglomeration
of castes in the Presidential Order shall be considered as representing a class as a whole and the state
concerned has no authority by legislation or otherwise to further subdivide the castes in the
notification so as to give more preference in the matter of reservation to a minuscule proportion
thereof in preference to other members of the same - AIR 2005 SC 162 V. Chinnaiah v. State of
Andhra Pradesh,
"Now when a person is 'deemed to be' something the only meaning possible is that whereas he is not
in reality that something the Act of Parliament requires him to be treated as if he were"
Legal fiction cannot extend beyond its legitimate aim – In construing S. 19(3) of Bengal Public
Demands recovery Act, 1913, which provided that 'the Certificate holder shall be deemed to be the
representative of the holder of the attached decree, and to be entitled to execute such attached decree
in any manner lawful for the holder thereof,' the Privy Council pointed out that the legal fiction
created thereby was for a limited purpose of enabling the certificate holder to execute the decree and
to satisfy his own claim out of proceeds of such execution but he was not in the position of an
assignee of the decree, so as to acquire all the rights of the original decree-holder in the decree -
Rodhakissen Chamaria Dui pa Prasad Chamaria, AIR 1940 PC 167

The Legislature may sometimes create a chain of fictions by the same Act or by succeeding Acts. If A
is deemed to be B, and B is deemed to be C, the inevitable consequence may be that A is deemed to be
C. Eg: By section 8 of the Abolition of Privy Council Jurisdiction Act, 1949, any order made by His
Majesty in Council on an Indian Appeal was to have effect as if it were an order or decree made by
the Federal Court and by Article 374(2) of the Constitution, judgments and orders of the Federal
Court are to have the same effect as if they had been delivered or made by the Supreme Court. The
legal effect of these two fictions is. that an order in an Indian Appeal made by the Privy Council
before its jurisdiction was abolished to have effect as if it were an order made by the Supreme Court -
Yellappagouda Shankargouda Patil v. Basangoudrt Shiddangouda hail, AIR 1960 SC 808

The principle stated and discussed above relating to the interpretation and application of a statutory
fiction has also been applied to a nonstatutory legal fiction that acquittal in appeal takes effect
retrospectively and wipes out the sentence awarded by the lower court. This retrospective operation of
acquittal only means that the stigma attached to the conviction and the rigour of the sentence are
completely obliterated but that does not mean that the fact of conviction and sentence is wiped out and
if a person was disqualified for being chosen to fill the seat for which an election is held on the date of
scrutiny of his nomination paper by the returning officer because of his conviction, he will become
qualified if later on his conviction is set aside in appeal.

4. Mandatory & Directory Provisions

A. General – Determining whether a provision is directory or mandatory - If object of the
enactment will be defeated by holding the same directory, it will be construed as mandatory
whereas if by holding it mandatory serious general inconvenience will be created to innocent
persons without very much furthering the object of enactment, the same will be construed as
directory.
If a provision is mandatory an act done in breach thereof will be invalid but if it is directory the
act will be valid although the non- compliance may give rise to some other penalty if provided by
the statute.
Non-compliance of mandatory rule has two exception – (i) when the act is impossible, it is excuse
(ii) when certain provisions, though mandatory may be waived.
Eg: requirement of notice under section 80 of the Code of Civil Procedure although mandatory could
be waived by the defendant as the provision was enacted merely for the protection of the defendant
State or Authority - Dhian Singh Sobha Singh v. Union of India, AIR 1958 SC 274
B. When consequences are provided by the statute
C. Use of negative words
Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the
command in a negative form. Exception - Considerations of general inconvenience, which would have
resulted in holding these enactments mandatory, appear to have outweighed the effect of the negative
words in reaching the conclusion that they were in their true meaning merely directory.
D. Affirmative words imply a negative
Affirmative words stand at a weaker footing than negative words for reading the provision as
mandatory; but affirmative words may also be so limiting as to imply a negative.
E. Use of ‘shall’ and ‘shall & may; ‘must’ & ‘should’
The use of word 'shall' raises a presumption that the particular is imperative but this prima facie
inference may be rebutted by other considerations such as object and scope of enactment.
If different provisions are connected with the same word 'shall', and if with respect to some of them
the intention of the Legislature is clear that the word 'shall' in relation to them must be given an
obligatory or a directory meaning, it may indicate that with respect to other provisions also, the same
construction should be placed.

The use of the word 'must' in place of 'shall' will itself be sufficient to hold the provision to be
mandatory and it will not be necessary to pursue the enquiry any further.61 The use of the word
'should' instead of 'must' may not justify the inference that the provision is directory if the context
shows otherwise
F. 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.
G. Statute conferring private rights and benefit
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.
If a statute confers a concession or privilege and prescribes a mode of acquiring it, the mode so
prescribed must be adopted as even affirmative words in such cases are construed imperative
H. Enabling words, e.g., 'may', 'it shall be lawful', 'shall have power'; Power coupled with duty
Ordinarily, 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 a discretion. Eg: Generally a
power conferred on an authority by use of the word 'may' to rule on a particular matter does not confer
an exclusive jurisdiction and take away the jurisdiction of some other authority to decide the same
matter. Thus the power conferred by section 16 of the Arbitration and Conciliation Act, 1996 on the
arbitial tribunal that it 'may rule' on any objection as to existence of an arbitration agreement does not
exclude the jurisdiction of the Chief Justice of 'India or his designate to decide that question, if need:
be in a petition under section 11 seeking appointment of arbitrator.

If the conditions in which the power is to be exercised in particular cases are also specified by a
statute then, on the fulfilment of those conditions, the power conferred becomes annexed with a duty
to exercise it in that manner. Eg: This principle was also applied by the Supreme Court in interpreting
section 57 of the Stamp Act, 1899, and it was held that it imposes a duty on the Chief Controlling
Revenue Authority to make a reference to the High Court when an important question of law arises
for consideration

The principle that the word 'may' is sometimes used in the sense of shall or must, while conferring
power on a high dignitary out of deference to him, has also been applied when power is conferred on
Parliament to enact a law. Interpreting Article 124(5) of the Constitution, which provides that
Parliament may by law regulate the procedure for the presentation of an address and for the
investigation and proof of the misbehaviour or incapacity of a judge, it has been held, that it is an
enabling provision for 'the procedure for presentation of an address' but it is a compulsive provision
for providing the procedure 'for the investigation and proof of the misbehaviour or incapacity of a
judge.
I. Words conveying discretion; as he deems fit; think necessary; consider necessary
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 the relief is not
dependent upon the discretion of the Tribunal. The words 'think necessary' or 'consider necessary'
have also been held to confer, a discretion but not an unfettered discretion.
Eg: the Supreme Court held that 'may' in the context was obligatory: that is to say the exercise of
power under this rule depends not upon the discretion of the authority but upon proof of the particular
case requiring renewal of the counter-signature - When permissive words are employed by the
Legislature to confer a power on a Court to be exercised in the circumstances pointed out by the
statute, it becomes the duty of the Court to exercise that power on proof of
those circumstances.
"Though the word 'may' might connote merely an enabling or a permissive power in the sense of the
usual phrase 'it shall be lawful', it is also capable of being construed as referring to a compellable
duty, particularly when it refers to a power conferred on a court or other judicial authority. Eg: the
words 'the Magistrate may take cognizance of any cognizable offence' in section 190(1)(b) of the
Code of Criminal Procedure, 1973, have been construed to mean "must take cognizance" leaving no
discretion to the Magistrate.

The term ‘may’ can be construed as a command inferring ‘shall’ or ‘must’.

J. ‘Have Regard To’

The words 'Have regard to' when occurring in a statute should be construed in relation to the context
and the subject-matter. Therefore, when some statutory power is to be exercised 'having regard to'
certain specified provisions, it only means that those matters must be taken into consideration.
However, statutory provision is not strictly bound by such provisions. Eg: Section 6(1)(e) of
the Karnataka Contract Carriages. (Acquisition) Act, 1976, empowers the arbitrator to determine by
his award the amount of compensation which appears to him to be just an and reasonable. In making
the award the arbitrator is required to have 'regard to' the circumstances of each case and the
provisions of the schedule; which provide for principles for determination of the amount of
compensation. In interpreting the section, the Supreme Court held that the arbitrator is not obliged to
fix the amount of compensation as Specified in the schedule and that he has to fix the amount which
appears ,to him to be just and reasonable, on the totality of circumstances - State of Karnataka v.
Rangriettha Reddy, AIR 1978 SC 215.
Directory vs Discretionary - A directory provision may be distinguished from a discretionary power.
The former gives no discretion and is intended to be obeyed, but a failure to obey it does not render a
thing duly done in disobedience of it a nullity. The latter. i.e., a discretionary power leaves the donee
of the power free to use or not to use it at his discretion.
5. Conjunctive & Disjunctive words
if the literal reading of the words produces an unintelligible or absurd result `and' may be read for `or'
and 'or' for 'and' even though the result of so modifying the words is less favourable to the subject
provided that the intention of the Legislature is otherwise quite clear. Conversely if reading of `and' as
'or' produces grammatical distortion and makes no sense of the portion following 'and', 'or' cannot be
read in place of `and'.
The alternatives joined by ‘or’ need not always be exclusive – Eg: Section 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 italised '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 judge for a case or group of cases. The case illustrates that
the alternatives joined by 'or' need not always be mutually exclusive.
6. Construction of General Words
The normal rule is that 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 meaning
given a restrictive meaning.
It is recognized principle of construction that general words and phrases, however wide and
comprehensive they may be, in their literal sense must usually be construed as being limited to the
actual object of the Act. Eg: The words 'representation in regard to testator's estate' were construed in
a case as referring to probate or letters of administration with the will annexed thereby excluding the
grant of letters of administration simpliciter on the ground that the Act in, question was limited in its
scope to testamentary dispositions –
General words also receive a restricted meaning because of principles of legality as also when used in
association with other words by application of the rules of noscitur a sociis and ejusdem generis.
Principle of Legality – The principle of legality requires that in the absence of express language or
necessary implication to the contrary, the courts will presume that even the most general words were
intended to be subject to the basic rights of the individual and in this way the courts of the United
Kingdom, though acknowledging the sovereignty of Parliament apply principles of Constitutionality
little different from those which exist in countries where the power of the legislature is expressly
limited by a constitutional document. This principle applies also in the construction of delegated
legislation.
Eg: Human Rights in UK - Another example of incompatibility is Bellinger v. Bellinger, where
the House of Lords declined to hold that a post operative male to female transexual could be treated as
'female' for purposes of marriage under section 11(c) of the Matrimonial Clauses Act, 1973 to remove
incompatibility by construction under section 3 of the Human Rights Act, 1998 and declared that
provision incompatible with convention rights under section 4 of the Act leaving the choice with
Parliament to remove incompatibility by legislation. The issue in this case related to the change in
fundamental concept of marriage which the court held could not be brought about by any process of
interpretation and needed parliamentary legislation.
Noscittor a socii - "The meaning of a word is to be judged by the company it keeps".As stated by the
Privy Council: "it is a legitimate rule of construction to construe words in an Act of Parliament with
reference to words found in immediate connection with them" It is a rule wider than the rule of
ejusdem generis; rather the latter rule is only an application of the former.
Eg: In a private Act a water company was empowered 'to break up the soil and pavement of roads,
highways, footways, commons, streets, lanes, alleys, passages and public places' provided they did
not enter upon any private lands without the consent of the owner and it was contended by the
company that this power enabled the company to break up the soil of a private field in which there
was a public footway, This contention, however, failed and the court construed the word 'footways'
from the company it kept as meaning those paved footways in large towns which are too narrow to
admit of horses and carriages - Scales v. Pickering, 130 ER 840
In construing the word 'declare' in the phrase 'to create, declare. assign, limit or extinguish' as it occurs
in section 17 of the Indian Registration Act, 1908, the Privy Council held that though the word
'declare' was capable of hearing a wider meaning but in section 1 7 , being in association with other
words, its meaning was restricted to connote a definite change of legal relationship as distinct from a
mere statement of facts. VISCOUNT DUNEDIN quoted with approval the observations of WEST, J.
from a Bornhay case which are to the following effect: "'Declare' is placed along with 'create', 'limit'
or 'extinguish' a right, title or interest and these words imply a change of legal relation to the property
by an expression of will embodied in the document.-1 think this is equally the case with the word
'declare'. It implies a declaration of will, not a mere statement of fact."' - Bageshwari Charan Singh v.
Jagannath, AIR 1932 PC 55
Rule of ejusdem generis - When particular words pertaining to a class, category or genus are
followed by general words, the general words are construed as limited to things of the same kind as
those specified. The rule applies when (1) the statute contains an enumeration of specific words; (2)
the subjects of enumeration constitute a class or category; (3) that class or category is not exhausted
by the enumeration; (4) the general terms follow the enumeration; and (5) there is no indication of a
different legislative intent.
Eg: By application of this rule the words 'any other goods' occurring in section 43 of the Customs
(Consolidation) Act, 1876 which empowered Majesty by order in Council to prohibit the importation
of `arms, ammunition, or gun powder or any other goods' were construed as referring to goods similar
to `arms, ammunition or gun powder - A.G. v. Brown, (1920) 1 KB 773
The introduction of the words 'whatsoever' after the general words following particular instances of a
genus does not exclude the application of ejusdem generis principle. The Privy Council construed the
words 'any other person or persons whatsoever' by this rule and restricted their meaning to officers of
similar kind as specified before these general words - Re, Samuel, (1913) AC 514
It is essential for application of the ejusdem generis rule that enumerated things before the general
words must constitute a category or a genus or a family which admits of a number of species or
members.
Eg: In interpreting section 20 of the United Town Electrical Company Act, which reads: 'the company
shall be liable for water rates on all lands and buildings owned by it in the aforesaid town, but
otherwise the company shall be exempt from taxation'; the Privy Council rejected the contention that
the word 'taxation' should be construed ejusdem generis with 'water rate'; LORD THANKERTON
said: "There is no room for the application of the principle of ejusdem generis in the absence of any
mention of a genus, since the mention of a single species for example of water rates does not
constitute a genus - United Town Electric Company Ltd. v. A.G. for Newfoundland, (1939) I All ER
423
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.

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 relate. Thus, it has been
held that a duty imposed on 'copper, brass, pewter, and tin and all other metals not enumerated' did
not cover silver or gold, these being of a superior kind to the particular metals enumerated.