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Subject: Interpretation of Statute

B.A.LL.B-Xth Sem
Subject Teacher: Akhlaqul Azam
Study Material of Unit-IV(B)
Topic: Presumption in Statutes

Presumption in Statutes

In the interpretation of statutes, certain so-called presumptions exist, which are not truly
concerned with evidence at all, but are cannons of interpretation. To "presume" means to
suppose that something is probably true. Thus presumption means an act of presuming, assuming
or imagining something to be true. The legislature is presumed to use appropriate words to
manifest its intention.

In G. Vasu v. Syed Yaseen Saifuddin Quadri(1987) it was held that Presumption may be looked
on as the bats of law, flitting in the sunlight but disappearing in the sunshine of fact.

Presumptions in Statutes

Presumption in Rule of Evidence

It is obligation on the court to raise presumption in every case where the factual basis for raising
of presumption had been established. Such a presumption is a presumption of law, as
distinguished from a presumption of fact, which describes provisions by which the court "may
presume" a certain state of affairs. In other words, provided the facts required to form the basis
of a presumption of law exists, no discretion is left with the court but to draw the statutory
conclusion; but this does not preclude the person against whom the presumption is drawn from
rebut ting it and proving the contrary.

In Hiten P.Dalal vs. Bratindranath Banarjee (2001) it was held that the rebuttal does not have to
be conclusively established, but such evidence must be adduced before the court in support of the
defence that the court must either believe the defence to exist or consider its existence to be
reasonably probable, the standard of reasoning being that of a "prudent man".
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Mandatory and Discretionary Presumption

In case of a discretionary presumption, the presumption, if drawn, may be rebutted by an

explanation which might reasonably be true and which is consistent with the innocence of the
accused. On the other hand in case of a mandatory presumption, the burden resting on the
accused person in such a case would not be as light as it is, where a presumption is raised under
Section 114, Evidence Act and cannot be held to be discharged merely by reason of the fact that
the explanation offered by the accused is reasonable and probable. It must also be shown that the
explanation is a tone one.

Conclusive Presumption

As observed by the Supreme Court, the legislature is competent to create a conclusive

presumption of law, if it acts within the allotted legislative sphere and does not violate any
constitutional mandate. Conclusive presumption can be created by government also, if statute
empowers it to do so.

General Presumptions

Some general presumptions may be laid down as under:

1. The words in a statute are used precisely and not loosely.

2. Vested rights are not taken away without express words or necessary implication or without
compensation.

3. Mens rea is generally required for a criminal act.

4. Government is affected by a statute.

5. The jurisdiction of courts is neither enlarged nor decreased.

6. Statutes are not intended to be inconsistent with international law.

7. The legislature does not intend what is inconvenient and unreasonable.

8. The legislature knows the existing law and does not intend to alter it except by express
enactment.
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9. The legislature does not commit mistakes or make omissions.

10. Different words in the same statute have different meanings.

11 Words are to be understood according to the subject matter they refer to and the object of the
legislature.

12. An interpretation clause is an aid to the interpretation of the statute in which it occurs and has
no effect on other statutes.

Presumption of Constitutionality

Constitutionality is the state of being constitutional Law is judged for its constitutionality on the
generality of its provisions and not by the freaks and exceptions it martyrs. Legislature is
presumed to have inserted every part of the statute for purpose. There is always a presumption of
constitutionality in favour of a statute and the burden is upon him who attacks it to show that
there has been a clear transgression of the constitutional principles.

Since the rule-making authority is presumed to enact a law which does not contravene the
constitutional provisions, the court ought not to interpret the statutory provisions in such a
manner as would involve its unconstitutionality. The presumption of constitutionality is indeed
so strong that in order to sustain it, the court may take into consideration, matters of common
knowledge, matters of common report, the history of the time and may assume every state of
facts which can be conceived existing at the time of legislation. Interpretation creating unjust and
discriminatory situation should be avoided.

Though presumption is that, the Act is constitutional and that the legislature understands and
appreciates needs of the people, but when the Act is ex facie discriminatory and arbitrary, such
presumption cannot stand. The burden of proof lies on him who challenges the vires. If a
provision can be construed in two senses, one making the provision con institutional and the
other unconstitutional, the court would always lean in favour of the former construction.

Presumption against exceeding constitutional powers

There are three lists in the Constitution:

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List I (Union List): On matters contained in this list, Parliament has exclusive powers of
legislation.

List I 1 (State List): The State Legislature has exclusive powers of legis lation on matters
contained in this list.

List III (Concurrent List): On matters contained in this list, Parliament and State Legislatures,
both have power to make laws. Residuary power of legislation rests with Parliament, under, and
by virtue of, Article 246(6) and Entry 97 of List I.

Parliament has exclusive power to make laws with respect to any of the matters in List I (Union
List), while the State Legislatures have exclusive power to make laws with respect to matters in
List II (State List).

Regarding List III (Concurrent List), both, Parliament and the State Legislatures, have power to
make laws.

There is a presumption of constitutionality of the rule or the legislation, unless ex facie it violates
the fundamental rights. Thus, there is a presumption that the legislature does not exceed its
jurisdiction and the burden of establishing that the Act is not within the competence of the
legislature, or that it has transgressed some constitutional mandates, such as those regarding
fundamental rights, is always on the person who challenges the vires.

Legislature leaves no lacuna

The presumption is that legislature does not leave any lacuna. Either by negligence, or by lack of
foresight, or because it did not know its job, it has left some lacuna-no such presumption be
made.

As observed in Utkal Contractors & Joinery (P) Ltd. v. State of Orissa(1987), that Parliament is
neither expected to use unnecessary expressions nor is expected to express itself unnecessarily.
As it does not use word without meaning something, it does not legislate where no legislation is
called for.

Legislature Does Not Exceed Jurisdiction

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There is a general presumption that a legislature does not intend to exceed its jurisdiction and the
general words in a statute are to be construed with reference to the powers of the legislature
which enacts it.

Presumption against exclusion or ousting the established jurisdiction

A statutory enactment is not competent to take away the jurisdiction conferred by the
Constitution; this jurisdiction can be taken away only by means of amending the Constitution. In
Kihoto Hollohan v. Zachillhu (1993) it was observed that even a provision in the Constitution
conferring final ity to the decision of an authority is not construed as completely excluding
judicial review under Articles 136, 226 and 227 of the Constitution, bur it limits it to
jurisdictional errors, for example mala fides, non compliance with rules of natural justice,
infirmities based on violation of constitutional mandates and perversity. If the legislature states
that the decision or order of a tribunal, or a court shall be final and conclusive, the remedies
available under the Constitution remain unrestrained or uninhabited."

Presumption Regarding Applicability of Statutes on Foreigners

The presumption is that territorial statutes are not intended to apply to foreigners; Rules of
international law are thus taken into consideration and respected. The broad general universal
principle of operation of statutes against foreigners, as Supreme Court in Moloji Nar Singh Rao
Shitole v. Shankar Saran'(1962) held , is that no territorial legislation can give jurisdiction,
which any foreign court ought to recognise against foreigners, who owe no allegiance or
obedience to the power which so legislates. Consequently, a decree passed against a non-resident
foreigner, in absenteeism, in a personal action is not (a nullity but) executable in courts of other
countries.

Presumption against Exceeding Territorial Nexus

Non-sovereign legislatures are competent to legislate with extra territorial effect. Law made by
such a legislative body bear a real territorial connection with the subject-matter with which it is
dealing. Article 245 of the Constitution of India provides as follows:

No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-
territorial nexus.
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Consequently, legislation made by Parliament cannot be questioned on the ground that it has
extra-territorial operation." Sufficiency of the territorial connection involves a consideration of
two elements: 1) the connection must be real and not illusory; and 2) the liability sought to be
imposed must be pertinent to that connection.

Statutes Are Presumed To Be In Conformity With International Law

Every statute is to be applied and interpreted as far as its language admits, in a way, as not to be
inconsistent with the established rules of international law. But this intention must be clearly
expressed in the enactment. As observed in Hatimbhai vs. Framroz(1927), if it designs to
effectuate any such object, it must express its intention with irresistible clearness induce a court
to believe that it entertained it, for if any other construction is possible, it would be adopted to
avoid imputing such an intention to the legislature. Thus, all general terms must be narrowed in
construction to avoid it.

If the intention above said is not clearly expressed in the enactment, the courts would incline to
favour an interpretation, which would be in consonance with those principles rather than accept a
grammatical interpretation, which would be unusual and startling.

Presumption against Intending Injustice

When laws are made by elected representative of the people, it is proper to assume that they
enact laws which the society considers as honest, fair and reasonable. As a result, justice and
reason constitute the great general legislative intent in every piece of legislation. If this is not
there and harsh and ridiculous effect was actually intended by the legislature, it could not be
easily accepted that it represents the legislative intent.

Presumption against Altering the Common Law

It is a well established principle of construction that a statute is not to be taken as affecting a

fundamental alteration in the general law unless it uses words that point unmistakably to that
conclusion. It is well established that the legislature will not introduce something new in the
common law without an unambiguous expression of its intent. For example, if the legislature
grants to a new Court the jurisdiction to try a particular type of cases, the legislative intent should
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not be supposed to be to rob the higher Court to some of its jurisdiction. Willes, J., observed in
Wolverhapton New Waterworks Co. v. Hawkesford (1859), as follows:

"There are three classes of cases in which a liability may be established founded upon a 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 statute contains 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 case, if, where the statute gives the right to sue
merely, but provides no particular form of remedy : there, the party can only proceed by action
at common law. 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."

Presumption Relating to the Liberty of Subject

Where the meaning of a statute is clear, it has to be applied in its strictest possible sense. But if it
is found to be ambiguous and susceptible of two meanings, one leading to the invasion of the
liberty of the subject and the other not, the latter has to be preferred on the ground that there is
always the presumption that it is not the ordinary intention of the legislature to interfere with the
liberty of the subject.

Presumption Relating to Penal Legislation

An ambiguous word or expression must be interpreted in favour of the individual.

Ambiguousness of expression in this case, however, does not have any reference to difficulty in
interpretation. Words and expressions should not be twisted artificially to favour the individual.

There is a presumption that mensrea is a necessary component of a statutory offence. This

presumption may, however, be refuted by the words of the statute, express or implied, creating
the offence. Also in the case of an enactment whose purpose is to protect human life this
presumption does not apply.

Presumption against Retrospective Legislation

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This presumption appears to be stronger in penal statutes than in civil ones. In civil statutes,
although the presumption exists, it is certainly very weak in character. The Courts may even
introduce a retrospective effect in civil matters if there seems to be enough justification. The
general presumption is that a law should affect future actions only and not those of the past. As
remarked by Erle C.J. in Midland Railway Co.v. Pye : (1861)"It manifestly shocks one's sense
of justice that an act legal at the time of doing it should be made unlawful by some new
enactment."

Article 20 (1) of the Constitution of India provides against ex post facto law in respect of
conviction for offences. It lays down that no person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under the law in force at
the time of the commission of the offence.

Presumption Relating to Taxing Statute

The presumption is that in case of ambiguity of exemption in a taxing statute, the interpretation
shall favour the assessee. There is however no presumption for the exemption of the few from
assessment of a tax. The presumption is for equality and against partiality which will essentially
crop up in cases of special exemption.

There is also the presumption that tax evasions will be benevolently regarded. In the words of
Lord Sumner in Associated Newspaper Ltd. v. London Corporation(1916) "The taxes and
assessments spoken of can only be imposed by the authority of some statute and the exempting
enactment itself operates at the moment it becomes law on existing imposts only. It cannot bind
future legislature. A new Act imposing new rates and taxes can only be affected thereby if the
Parliament which passes it so wills, and expresses that will directly or indirectly in the language
of the new enactment. In their operation on existing imposts the words in question are ineffective
exemption. They do not so operate on future imposts as to these, they are at most words raising a
presumption as to the meaning of the Legislature whenever it passes future taxing Acts. Without
them a future Act must exempt expressly, if there is to be any exemption at all. With them there
is some presumption, though not a strong one, that the later statute bestows exemption from the
new tax, unless its actual language negatives such an intention. It is not natural construction of
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the statutory words in question to read them as uno flatu relieving from a burden which now
exists and preparing the ground for a special construction of statutes hereafter creating burdens
which do not yet exist."

Presumptions Relating to Time

Where a time limit is prescribed as to a certain thing to be done from a certain date, the day of
the given date is presumed to be excluded from the reckoning. The obligation cast by an
enactment is presumed to apply as at the time when the same came into force. If a certain
situation was contemplated ns the basis of an enactment: it is presumed that the enactment will
lose force if there is a change in the situation.

Presumptions Relating to Statutes in Pari Materia

The presumption is that a consolidating statute, which embodies the provisions of earlier
legislation, does not alter the law. There is also the presumption that the judicial interpretation of
the preceding legislation covers the consolidating statute as well. This principle however does
not debar the Courts from invalidating earlier decisions.

In the case of a 'codifying' statute, i.e., a statute which replaces earlier enactments in different
terms, the presumption is that the case law under the earlier statute has expired with them. When
a later enactment expands the scope of the earlier statutes, the earlier statutes may themselves be
accorded a wider interpretation than they would command had the later enactment not been
passed. Where a subordinate legislation coming under an Act is left unchanged by a subsequent
Act repealing the main Act, there is the presumption that the subordinate legislation continues to
be in operation. Where a subsequent Act incorporates provisions of the previous Act, then the
borrowed provision becomes an integral and independent part of the subsequent Act and are
unaffected by any repeal or amendment in the previous Act, except certain contingencies. There
is a rule of construction that where a statute is incorporated by reference into a second statute, the
repeal of the first statute by a third does not affect the second, as the incorporated provisions
have become part of the second statute.

Presumption Based on Facts

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Since the rule contains only a formula of presumption based on facts, it goes without saying that
the prescription is only of a directory nature and not of a mandatory nature. Presumptions are
either of law of fact. Presumptions of law are arbitrary consequences expressly annexed by law
to particular facts, and may be either conclusive, as that a child under a certain age is incapable
of committing any crime; or rebuttable, as that a person not heard of for seven years is dead, or
that a bill of exchange has been given for value. Presumptions of fact are inferences which the
mind naturally and logically draws from given facts, irrespective of their legal effect. Not only
are they always rebuttable, but the trier of fact may refuse to make the usual or natural inference
notwithstanding that there is no rebutting evidence.

Besides, it is a well-known principle in the interpretation of statutes that where the situation and
the context warrants it, the word "shall' used in a section or rule of a statute has to be construed
as "may". The present context is one such where the words "the prescribed Authority shall accept
the findings in those proceedings as conclusive" have to be rend as "the Prescribed Authority
may accept the findings in those proceedings as conclusive" because the findings are based upon
existence of facts.

Probable Questions

1. Explain in detail the rules relating to Presumption of Statutes

2. Define Presumption and discuss the rule of presumption in following cases
i. Presumption of Constitutionality
ii. Presumption as Rule of Evidence
iii. Mandatory and Discretionary Presumption